Fourteenth Court Reverses Property Division in Default Divorce for Lack of Evidentiary Support
Tiney v. Tiney, 14-25-00116-CV, February 24, 2026.
On appeal from the County Court at Law of Waller County.
Synopsis
The Fourteenth Court of Appeals reversed a property division in a default divorce because the petitioner failed to provide any evidence regarding the nature or value of the community estate, running afoul of Texas Family Code § 6.701. However, the court affirmed the validity of the underlying service of process, holding that Texas Rule of Civil Procedure 107 does not require a return of service to include a physical description of the defendant.
Relevance to Family Law
This opinion serves as a critical reminder that a default in a divorce proceeding does not operate as a true “default” in the traditional civil sense. While Rule 239 usually deems factual allegations admitted, Texas Family Code § 6.701 creates a higher evidentiary threshold: the petition may not be taken as confessed. For practitioners, this means a “prove-up” must include a substantive record of the community estate’s character and value. Failing to introduce an inventory or specific testimony on asset values renders a “just and right” division legally unsustainable and vulnerable to an evidentiary attack for the first time on appeal.
Case Summary
Fact Summary
Cassandra Lynn Tiney (Wife) filed for divorce from Sammie L. Tiney (Husband). Despite being served with the original and amended petitions, Husband failed to answer. At the subsequent default hearing, Wife provided only two pages of testimony. She mentioned the parties owned a home they intended to sell “eventually” and expressed a desire for Husband to vacate the residence. Crucially, Wife did not offer an inventory, appraisals, or any exhibits detailing the marital estate’s assets or liabilities. Based on this limited record, the trial court signed a decree awarding Wife various personal property, retirement accounts, and vehicles. While the court awarded Husband 50% of the home’s fair market value via a lien, it declared the home Wife’s separate property and failed to specify a date for the sale. Husband appealed, challenging both the evidentiary basis for the property division and the technical sufficiency of the service of process.
Issues Decided
- Does a trial court abuse its discretion by dividing a community estate in a default divorce when the record contains no evidence regarding the nature or value of the property?
- Does Texas Rule of Civil Procedure 107 require a return of service to include a physical description of the person served or a statement that the person was known to the process server?
Rules Applied
The court applied Texas Family Code § 6.701, which mandates that in a divorce, the petition may not be taken as confessed if the respondent fails to answer, requiring the petitioner to present evidence to support material allegations. The court also looked to Texas Family Code § 7.001, requiring a “just and right” division of the estate. Regarding the evidentiary standards, the court cited Matter of Marriage of Williams, 646 S.W.3d 542 (Tex. 2022), which clarifies that a trial court abuses its discretion if it lacks sufficient evidence upon which to exercise that discretion. Finally, the court applied Texas Rule of Civil Procedure 107, which enumerates the specific requirements for a valid return of service.
Application
The court’s analysis centered on the intersection of default procedures and the unique requirements of the Family Code. In a standard civil default, the non-answering defendant admits the facts alleged. However, under Section 6.701, the petitioner must still “prove up” the case. The court found that because Wife offered no evidence of the value of the home, the retirement accounts, the vehicles, or the community debts, the trial court had no “factual bridge” to reach a just and right division. The court noted that even an unequal division must be supported by evidence, and here, the record was a “dearth of evidence” identifying or valuing the estate.
Regarding service, the Husband argued for a strict construction of Rule 107 that would require a physical description of the recipient. The court rejected this, noting that Rule 107(b) provides an exhaustive list of requirements for a return of service, and a physical description is not among them. Since the process server stated the citation was delivered to the named defendant at his residence and signed the return under penalty of perjury, the requirements of Rule 107 were fully satisfied.
Holding
The court held that the trial court abused its discretion in dividing the marital estate because there was legally and factually insufficient evidence to support the division. The court reversed the portion of the decree dividing the property and remanded the cause for further proceedings on that issue.
The court further held that the service of process was valid. It ruled that Rule 107 does not require a physical description of the person served or a statement that the defendant was known to the server. Consequently, the court affirmed the portion of the judgment dissolving the marriage.
Practical Application
For the litigator, Tiney emphasizes that the “prove-up” is a trial on the merits, not a clerical formality. When preparing for a default divorce hearing, counsel must ensure that the record contains competent evidence of values—whether through a sworn inventory and appraisement admitted into evidence, expert testimony, or detailed lay testimony regarding account balances and fair market values. Relying on a client’s vague testimony about “wanting the house” without establishing what the house is worth or what equity exists is a recipe for reversal.
Checklists
Evidence for Default Property Division
- Admit a Sworn Inventory: Always offer a comprehensive Inventory and Appraisement as an exhibit.
- Establish Values: Provide specific testimony or documentary evidence regarding the fair market value of real property, vehicles, and retirement balances.
- Characterize the Estate: Explicitly testify as to which assets are community versus separate property to avoid mischaracterization errors.
- Just and Right Rationale: If requesting an unequal division, ensure the record reflects the statutory factors (e.g., fault, disparity of earning power) justifying the split.
- Debt Allocation: Do not forget to provide evidence of community liabilities to allow the court to calculate the net community estate.
Service of Process Compliance
- Verify Rule 107(b) Elements: Ensure the return includes the case number, court, date/time of receipt, person served, and the server’s signature.
- Process Server Status: Confirm the return identifies the server as an authorized person under Rule 103.
- Strict Compliance, Not Extra-Legal: While compliance must be strict, do not be misled by claims that the return requires information (like physical descriptions) not found in the text of Rule 107.
Citation
Tiney v. Tiney, No. 14-25-00116-CV, 2026 WL [Pending] (Tex. App.—Houston [14th Dist.] Feb. 24, 2026, no pet. h.) (mem. op.).
Full Opinion
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