This is a divorce case. The husband appeals, contesting only the order of property division. We remand that issue for a new trial.
Appellant Grady L. Roberts and appellee Georgia Lee Roberts were married in October, 1973. Appellee filed this suit for divorce on January 22,1980, upon the ground that the marriage was insupportable. Although served with process, appellant failed to answer. The case was heard by the court without a jury on August 5, 1980; and judgment was rendered and signed on that dаy granting the divorce, awarding appellee'custody of the couple’s only child (appellee’s 16-year-old daughter of a former marriage, adopted by appellant), and dividing the parties’ property.
A default judgment should be set aside and a new trial ordered “in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motiоn for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff.”
Ivy v. Carrell,
At the hearing on the motion, appellant had the burden of establishing his excuse by a preponderance of the evidence.
Ward v. Nava,
The divorce judgment made the following division of the parties’ property: Appellee *837 was awarded the “home” (including furniture and fixtures) locаted in Madison County, containing 21.75 acres; two other tracts of land containing five acres and 12.1838 acres; a real estate business known as “G. Roberts And Associates, Inс.”; a certificate of deposit of undesignated amount; a personal bank loan to appellee in the amount of $15,000.00; a 1979 Cadillac automobile, а 1979 Chevrolet automobile, and a 1977 Chevrolet automobile; and all items in her possession, “including all checking and savings accounts in [her] name.” Appellant was awarded all pension and employee benefits at his place of employment; all stocks and bonds in his name; a 1979 Ford pickup truck; and all other items, including furniture and appliances, in his possession. Each party was required to assume any indebtedness against the property he or she received.
Appellant asserts the trial court’s implied finding that the property division was just and right is not supported by the evidence. We sustain this contention.
The only allegations in appelleе’s petition regarding the parties’ property were these: “Petitioner and Respondent are the owners of certain property, the majority of which is the separate property of Petitioner. Petitioner believes that Petitioner and Respondent can and will enter into an agreement for the division and sеttlement of their estate. If such agreement is made, same will be submitted to the Court, in writing, subscribed by both parties, and made subject to the approval of the Court. If such аgreement is not made, Petitioner then requests the Court to order a division of their estate in a manner that the Court deems just and right, equitably to both parties, and as prоvided by law.”
At the hearing on August 5, 1980, upon which the judgment in question was based, the only evidence regarding the parties’ property was this testimony by appellee: “Q. There wаs some property accumulated that is set out in the Divorce Decree; is that correct? A. Yes, sir. Q. When you married Mr. Roberts you had four or five pieces оf property. You had some in Austin County, Freestone County and Harris County? A. And Galveston County. Q. Did you sell that property? A. Yes, sir, I did. Q. And for all practical purposes all of thosе proceeds went into the property set out in your Divorce Decree? A. Yes, sir. Q. And you ask that to be awarded to you? A. Yes, sir. Q. Your husband has worked where? A. At Monsanto. Q. He has about thirty years there at this time? A. Twenty-nine, yes, sir. Q. And you’re waiving any rights to any pension plan that he has? A. Yes. Q. And any stocks and bonds? A. Yes. Q. And any employment benefits? A. Yes, sir.” Immediаtely following this testimony a colloquy was held between the court and the appellee’s counsel which shows without doubt that the property division in question was basеd upon the assumption that, in the words of appellee’s counsel, “she can trace where she put all or most of the money [she received from the sale of her separate property] into this property [she received in the judgment].”
It is the court’s duty in a divorce decree to “order a division of the estаte of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.” V.C.T.A., Family Code § 3.63. The court has wide discretion in dividing the property and its decision will be affirmed on appeal unless an abuse of discretion has been shown.
Murff v. Murff,
A no-answer default judgment may be supрorted by the facts pleaded in the plaintiff’s petition under the general rule that the defendant by failing to answer has “admitted” the factual allegations and the justiсe of the plaintiff’s claim.
Stoner v. Thompson,
In Texas, all property owned by either spouse during or on dissolution of the marriage is presumed to be community property. V.T.C.A., Family Code § 5.02. Where, as in the case before us, separate property of а spouse has undergone mutations and changes it is indispensable in order to maintain its separate character that it be clearly traced and identified.
Cockerham v. Cockerham,
The evidеnce supports the judgment of divorce and the award of the custody of the child to appellee. Appellant does not assert otherwise. Those сauses are severable from the issue of property division, and we order this severance. Rule 434, Vernon’s Tex. Rules Civ.Proe.;
DeCluitt v. DeCluitt,
The portion of the judgment dividing the property is reversed, and that issue is remanded for trial. The remainder of the judgment is affirmed.
The costs of this appeal are assessed against appellant.