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Click here for the full text of this decision FACTS:On Sept. 13, 2004, Maria Vazquez filed for divorce. She filed her first amended divorce petition on Feb. 4, 2005. Amadeo Vazquez received service of process for the divorce suit on April 16, 2005, but did not file an answer. Amadeo was not present when the trial court conducted a hearing on Aug. 30, 2005. Maria presented no evidence at the divorce hearing regarding any acts of cruelty to support the trial court’s finding that the marriage should be dissolved on the basis of cruelty. The trial court entered a default divorce decree. Amadeo filed a notice of restricted appeal on Dec. 19, 2005. In his appeal, Amadeo contended that insufficient evidence supported: 1. dissolution of the marriage on the ground of cruelty; 2. the conservatorship rights granted to Maria; 3. the reasonableness of Amadeo’s monthly obligation or his additional obligations of medical support for the children and maintenance of a life insurance policy; 4. the property division as just and right; 5. the assessment of Maria’s attorneys fees against Amadeo; and 6. any relief based on the purported agreement of the parties. HOLDING:Affirmed in part, reversed and remanded in part. A party filing a restricted appeal must demonstrate that: 1. initiation of an appeal occurred within six months after the trial court rendered judgment; 2. the appellant was a party to the suit; 3. the appellant did not participate in the hearing that resulted in the judgment complained of; 4. the appellant did not timely file a post-judgment motion or a request for findings of fact and conclusions of law, or file a notice of appeal within the time permitted by Rule 26.1(c) of the Texas Rules of Appellate Procedure; and 5. error appears on the face of the record. The trial court signed the default divorce decree on Aug. 30, 2005, the court noted. Amadeo filed a notice of appeal on Dec. 19, 2005, within six months after the judgment was rendered. Amadeo was a named party to the suit. Neither Amadeo nor his lawyer were present during the hearing. Amadeo did not file a post-judgment motion, request for proposed findings of fact and conclusions of law, nor did he file a notice of appeal from the divorce decree signed by the judge within 30 days of its entry. Thus, the court found that Amadeo satisfied the first four requirements of a restricted appeal. In several points of error, Amadeo argued that he satisfied the fifth requirement for a restricted appeal � that the error appear on the face of the record � because there was no evidence to support the relief granted in the divorce decree. First, Amadeo contended that insufficient evidence supported dissolution of marriage on the ground of cruelty. Maria argued that the record contained evidence of cruelty, because the trial court had a record of prior proceedings, including her previous application for a protective order. In her affidavit attached to the application, Maria stated that Amadeo had pulled her out of her vehicle by her hair and forced her to the ground in the presence of their children. Maria argued that evidence of family violence occurring during the parties’ separation was sufficient to support a finding of cruelty. The court, however, stated that Maria cited no authority holding that a party may rely on an affidavit attached to a pretrial motion to satisfy its burden to present evidence at the hearing. Accordingly, it sustained Amadeo’s appeal on this point. Next, Amadeo contended that there was no evidence to support the trial court’s grant of conservatorship rights to Maria. In determining conservatorship issues, the court stated that trial courts primarily consider the best interest of the child, and it listed nine factors that a trial court may weigh in determining a child’s best interests. The court, however, found no evidence regarding any of the nine factors or any other evidence from which the trial court could determine the best interests of the children. Accordingly, the court found that insufficient evidence supported the trial court’s determination of the specific rights of each parent as a joint managing conservator. The court also found that insufficient evidence supported the trial court’s division of the marital estate, because “Maria merely testified that the division of marital property she requested in her proposed divorce decree was just and equitable without providing any explanation or reasoning for the proposed division.” As a result, the court remanded the child support determination, including the health insurance and life insurance obligations, to the trial court, because such a claim may be materially influenced by the property division. Because there was no evidence presented on the issue of attorneys’ fees, the court concluded that the trial court abused its discretion in awarding judgment for Maria’s attorneys’ fees. OPINION:Seymore, J.; Frost, Seymore and Guzman, JJ.

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