There Must Be Sufficient Evidence to Support Divorce
When spouses agree to a divorce, a divorce decree is prepared, and the divorce is "proved up." Technically, a prove-up is a trial. One or both of the spouses testifies about the grounds for divorce, custody and visitation for the children and the division of the community estate.
Prove-ups also are necessary in default cases. A default case is one where the other spouse is served with citation (or waives service) but does not file pleadings with the court, make any agreements with the filing spouse, or show up for the prove-up.
In both types of cases, a busy court docket and the lack of any objection to the divorce can result in a curtailed prove-up. But all divorce decree must be supported by sufficient evidence. It can be a mistake to shorten a prove-up because then a spouse can appeal on the ground that the evidence is insufficient to support the decree.
We've written about this issue before, in Newsletter entries for January 8 and February 26, 2004. The El Paso Court of Appeals has highlighted the problem again in the recent case of Giron v. Gonzalez.
By agreed temporary orders, Ms. Giron had temporary custody of the children. Mr. Gonzalez paid her child support. But Ms. Giron failed to appear at the divorce hearing. Mr. Gonzalez obtained a divorce by default against Ms. Giron, alleging no-fault grounds, adultery and cruelty. The trial court granted him sole custody of the children and suspended Ms. Giron's visitation with the children. Finally, the trial court forgave past-due child support owed by Mr. Gonzalez.
On appeal, the El Paso Court found that Mr. Gonzalez did not introduce enough evidence into the record to support any finding but no-fault divorce. To demonstrate its point, the Court quoted the entire prove-up which is copied in the extended entry.
Q. Would you state your name for the record.
A. My name is Jesus Ricardo Gonzalez, Jr.
Q. You are married to Selene Giron, correct?
A. Yes.
Q. Now, you are aware of how she spells her name, correct?
A. Yes.
Q. And what is the proper spelling?
A. S-E-L-E-N-E.
Q. And you and her were married, correct?
A. Yes.
Q. At the time that you filed the petition for divorce, had you lived in the State of Texas for six months?
A. Yes.
Q. And El Paso County 90 days?
A. Yes.
Q. You've alleged your marriage to Selene Giron has become insupportable because there's discord and conflict of personalities between you and her that destroys the marriage relationship?
A. Yes.
Q. Is there any reasonable expectation that you are going to reconcile?
A. No.
Q. Of this marriage -- there are two children born of this marriage, correct?
A. Yes.
Q. What are their names and ages?
A. [T.A.G.], she's five years old, and [L.M.G.], she's three years old.
Q. And you're asking the Court to appoint you sole managing conservator of these children?
A. Yes.
Q. Your wife knows where the children are at?
A. Yes, she knows.
Q. And they're in your possession?
A. Yes.
Q. Has she made any contact -- any efforts to contact the children?
A. She calls.
Q. And does she talk to the kids?
A. Yes, I let her speak to kids [sic].
Q. Have you attended Helping Children Cope With Divorce?
A. Yes.
Q. And do you know whether your wife has attended?
A. No, I do not know.
Q. You are asking the Court to suspend any visitation until such time as she completes the Cope program?
A. Yes.
Q. The provisions of -- the proposed decree has provisions for child support?
A. Yes.
Q. Correct?
A. Yes.
Q. And it has provisions for visitation?
A. Uh-huh.
Q. Health insurance -- are the children covered by health insurance?
A. Well, I pay for it on the child support.
Q. But do they have health insurance?
A. No -- at this time, I'm not certain because they were living with their mother in Ohio, so I really don't know.
Q. In terms of property, was there any property accumulated?
A. No.
Q. And each one is going to pay whatever debts you have in your name.
A. Yes.
Q. Other than these two children, do you know whether she was pregnant, expecting a child at this time?
A. Really, I don't know.
Q. But as far as you're concerned, she wasn't pregnant with any of your children?
A. Oh, no.
Q. And no other child was adopted?
A. No.
Q. Today you're asking the Court to approve -- to grant your petition for divorce?
A. Yes.
The Court: And as I understand it, you-all are going to nonsuit the cause of action against the third-party respondent, Maria Apodaca?
[Plaintiff's counsel]: Right.
The Court: Sir, how long have the children been living with you?
Mr. Gonzalez: For two weeks.
The Court: Anything else at this time?
[Plaintiff's counsel]: No, Your Honor.
The Court: I do recommend to the referring court this divorce be granted effective today's date.
Good luck to you, sir.
