In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-13-00123-CV
IN THE MATTER OF THE MARRIAGE OF LUCAS WOODS AND JESSICA WOODS AND
IN THE INTEREST OF L.K.L.W. AND S.B.L.W., CHILDREN
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 82459
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION
Jessica Woods appeals from the final decree of divorce dissolving her marriage to Lucas
Woods and determining conservatorship of the parties’ children, L.K.L.W. and S.B.L.W. Lucas
did not file a brief in this appeal. In one issue, Jessica argues that the trial court erred when it
denied her motion for a new trial. Because we agree, we reverse the judgment of the trial court
and remand for a new trial.
I. Background
Lucas and Jessica separated in May 2012 after having married in November 2008. The
separation lasted one year, and during that time, their two young children lived with Jessica. By
agreement, Lucas had possession of the children every other weekend and every other week
during the summer.
When Jessica and Lucas decided to divorce after approximately one year of separation,
they agreed that the children would continue to live with Jessica after the divorce and that Lucas
would continue with the same visitation schedule the parties’ adhered to during the time of their
separation. 1 Consequently, when Jessica was served with citation and a copy of the petition for
divorce, she did not respond because she believed she and Lucas had resolved all custody issues 2
prior to the time the petition was filed and because Lucas told her a response was unnecessary.
Without notice to Jessica, a final divorce hearing was conducted in September 2013, at
which time the court determined that Jessica was in default. After an evidentiary hearing—with
1
Jessica assisted Lucas in drafting the petition and filled out the forms necessary for its filing.
2
The parties also resolved all property issues, which are not disputed here.
2
Lucas as the sole witness—the trial court granted Lucas’ petition for divorce. 3 Lucas testified
that Jessica “took the kids and left” and that he was seeking custody of the children. The trial
court granted the divorce and, among other things, named the parties joint managing
conservators, awarded Lucas the right to designate the primary place of the children’s residence, 4
and ordered Jessica to pay child support.
On the evening of the final hearing, the children left Jessica’s residence with Lucas for
what Jessica believed to be a typical weekend visit. When Lucas failed to return the children to
Jessica on Sunday evening at the usual time, Jessica contacted him by telephone. Lucas
informed Jessica that the final divorce hearing was held on the preceding Friday (September 17,
2013) and that Lucas had been awarded the right to designate the children’s primary residence.
Lucas further informed Jessica that she would have to immediately start paying child support.
On September 30, 2013, Jessica filed a pro se motion for new trial which was denied on
the date of its filing. Thereafter, the final decree of divorce was entered October 7, 2013. 5 On
October 11, 2013, Jessica filed a timely motion to set aside the default judgment and motion for
a new trial, alleging that she established the necessary elements to set aside the default
3
In a rather unusual twist, the trial court questioned Lucas for the purpose of proving up the divorce.
4
The trial court explained, “I’m telling you you’re going to have the right to have the children with you.”
5
The decree indicates that Jessica, although duly and properly cited, did not appear and wholly made default. The
decree further names Lucas as the party with the exclusive right to designate the primary residence of the children
without regard to geographic location, includes the Standard Possession Order, and orders Jessica to pay child
support.
3
judgment. 6 This motion was denied without hearing on October 14, 2013. Jessica’s motion for
reconsideration of her October 11 motion was overruled by operation of law.
II. Analysis
We review a trial court’s denial of a motion for new trial for an abuse of discretion.
Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). In the
context of a motion to set aside a default judgment, the Supreme Court of Texas has articulated
the following factors, known as the Craddock elements, that must be analyzed on appeal.
A trial court must set aside a default judgment if (1) ‘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’; (2) ‘the motion
for a new trial sets up a meritorious defense’; and (3) granting the motion ‘will
occasion no delay or otherwise work an injury to the plaintiff.’
Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 309 (Tex. 2012) (quoting
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)). In Texas, adjudication
on the merits is preferred. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992).
Adjudication on the merits is of primary importance in cases affecting the parent-child
relationship. See Rhamey v. Fielder, 203 S.W.3d 24, 28–29 (Tex. App.—San Antonio 2006, no
pet.) (courts exercise liberality in favor of defaulting party having day in court, particularly in
cases affecting parent-child relationship); Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex. App.—
San Antonio 1987, no writ). “The best interest of the child requires that the issue be as fully
developed as possible.” Rhamey, 203 S.W.3d at 29. When the Craddock elements are met, the
6
This motion was filed by counsel.
4
trial court abuses its discretion if it fails to grant a new trial. Lerma, 288 S.W.3d at 926. With
these principles in mind, we must determine whether the Craddock elements are satisfied here.
A. Failure to Answer Was Neither Intentional Nor the Result of Conscious
Indifference
When the failure to file an answer is not the result of intentional disregard or conscious
indifference, the first Craddock element is satisfied. Diagnostic Clinic of Longview, P.A. v.
Neurometrix, Inc., 260 S.W.3d 201, 205 (Tex. App.—Texarkana 2008, no pet.). The failure to
file an answer is intentional or results from conscious indifference if “the defendant knew [she]
was sued but did not care.” In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (quoting Fid. & Guar.
Ins. Co. v. Drewery Const. Co., 186 S.W.3d 571, 576 (Tex. 2006)). “[S]ome excuse, although
not necessarily a good one, will suffice to show that a defendant’s failure to file an answer was
not because the defendant did not care.” R.R., 209 S.W.3d at 115.
Here, Jessica filed an uncontroverted affidavit in connection with her motion to set aside
the default judgment and seeking a new trial, in which she explained her failure to timely file an
answer: 7
Lucas and I decided to go ahead and file for a divorce after a year of separation.
We discussed and agreed as to how property would be distributed and that the
children would remain with me and he would continue to have visitation as we
had been doing.
Lucas obtained the paperwork necessary to file the divorce and I even filled the
papers out for him. I didn’t think it mattered who was the Petitioner or who was
the Respondent. I was served with copies of the Petition for Divorce on May 16,
2013 and when I asked Lucas about this, he told me that it was just a necessary
part of the divorce and didn’t mean anything since we had agreed to everything.
7
Jessica filed an answer when Lucas informed her of the results of the final hearing.
5
“A defendant satisfies its burden under this element when its factual assertions, if true, negate
intentional or consciously indifferent conduct by the defendant and the factual assertions are not
controverted by the plaintiff.” Millstone Operating, Inc., 388 S.W.3d at 310. Accordingly,
because the foregoing factual assertions are uncontroverted, the first Craddock element is
satisfied if these assertions—if true—negate intentional or consciously indifferent conduct. We
conclude that they do.
In a somewhat analogous case, a default judgment of divorce was entered after the wife
failed to file a response to the petition. Beckman v. Beckman, 716 S.W.2d 83, 84 (Tex. App.—
Dallas 1986, writ dism’d). In her affidavit filed in support of a motion for new trial, the wife
explained that her failure to answer was based on the parties’ agreement that her husband would
dismiss the divorce action. 8 Id. This factual allegation was sufficient to negate intentional or
consciously indifferent conduct. Id. at 85. Because the allegations in the wife’s affidavit were
sufficient to support the remaining Craddock factors, the trial court’s judgment denying the
wife’s motion for new trial was reversed. Id.
Even when a judgment is obtained following the execution of a waiver of citation, a
motion for new trial can be granted under circumstances similar to those presented here. See
Rhamey, 203 S.W.3d at 27. In Rhamey, as in this case, the parties agreed on and abided by
custody and visitation arrangements during the period of their separation. Id. The wife’s
petition for divorce stated that the parties would enter into an agreement regarding
conservatorship and possession of their son. Id. On the same day the petition was filed, the
8
The wife previously filed suit for divorce in a different county. Beckman, 716 S.W.2d at 84.
6
wife’s attorney sent Rhamey a letter indicating, “It is my understanding that you and your wife
have been alternating possession of [your son] every two weeks. It is [your wife’s] desire to
maintain the current schedule and not disrupt the status quo.” Id. Rhamey, thereafter, executed a
waiver of citation, based on his wife’s representation that the status quo of alternating possession
would be maintained. Id. The alternating custody agreement continued until the day the wife
appeared at trial. Id. at 29. At trial, the wife testified that, since the parties’ separation,
possession of their son was alternated. She further testified that Rhamey failed to take their son
to certain extracurricular activities during his periods of possession, that Rhamey had bi-polar
disorder, and that he was not taking his medication. Id. at 27. After hearing this testimony, the
trial court reduced Rhamey’s access to his son. Id. Based on these facts, the appellate court
concluded that Rhamey satisfied the first Craddock element. 9
Here, as in Rhamey, Jessica relied on Lucas’ assurances that their previously agreed-to
custody and visitation arrangements, which remained in place until the date of the final hearing,
would remain unchanged after the divorce. Jessica did not file an answer to the divorce
petition—a petition that she filled out—based on the parties’ agreement to maintain the status
quo. As in Rhamey, the status quo was altered after Lucas testified that he wanted the children to
live with him and that Jessica “took the kids and left.”
We conclude that Jessica’s failure to answer the divorce petition was neither intentional
nor the result of conscious indifference. See Rhamey, 203 S.W.3d at 27; see also Beckman, 716
S.W.2d at 84; Millstone Operating, Inc., 388 S.W.3d at 310 (defendant’s burden as to first
9
The court determined that the wife’s actions amounted to extrinsic fraud, in view of both the letter and the parties’
reliance on the status quo for sixteen months. Rhamey, 203 S.W.3d at 30.
7
Craddock element satisfied when uncontroverted factual assertions, if true, negate intentional or
consciously indifferent conduct); R.R., 209 S.W.3d at 115 (same).
B. Meritorious Defense
We now must determine whether Jessica’s motion sets up a meritorious defense. This
determination is based on the facts alleged in the motion and the supporting affidavit, regardless
of whether those facts are controverted. Dir., State Employees Workers’ Comp. Div. v. Evans,
889 S.W.2d 266, 270 (Tex. 1994). A meritorious defense is a defense that, if proven, would
cause a different result on retrial of the case. In re A.P.P., 74 S.W.3d 570, 574–75 (Tex. App.—
Corpus Christi 2002, no pet.).
In this regard, we acknowledge that the primary consideration in determining issues
regarding conservatorship, access, and possession is always the best interest of the child. TEX.
FAM. CODE ANN. § 153.002 (West 2014); In re M.T.C., 299 S.W.3d 474, 479 (Tex. App.—
Texarkana 2009, no pet.). As a result, the second Craddock factor is more difficult to apply to a
suit involving conservatorship decisions. See, e.g., A.P.P., 74 S.W.3d at 575. Nevertheless,
Texas courts have long recognized certain (non-exclusive) factors to be considered in
determining the best interest of a child:
(A) the desires of the child; (B) the emotional and physical needs of the child now
and in the future; (C) the emotional and physical danger to the child now and in
the future; (D) the parental abilities of the individuals seeking custody; (E) the
programs available to assist these individuals to promote the best interest of the
child; (F) the plans for the child by these individuals or by the agency seeking
custody; (G) the stability of the home or proposed placement; (H) the acts or
omissions of the parent which may indicate that the existing parent-child
relationship is not a proper one; and (I) any excuse for the acts or omissions of the
parent.
8
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); Matter of Marriage of Bertram, 981 S.W.2d
820, 822–23 (Tex. App.—Texarkana 1998, no pet.) (applying Holley factors for best interest
determination in conservatorship proceeding).
In her affidavit, Jessica stated that both L.K.L.W. and S.B.L.W. had lived exclusively
with her since the parties separated in May 2012, although Lucas had visits with the children
every other weekend and every other week during the summer. Jessica also averred in her
affidavit that this arrangement continued until the date of the hearing in September 2013 and that
the parties had agreed to maintain the arrangement after their divorce. Additionally, Jessica
stated in her affidavit that her young children (ages six and three at the time of the hearing) had
never been away from her for any extended period of time. According to her affidavit testimony,
the children had an established routine with her, and she believed it would be detrimental to the
children’s mental health and well-being for them to be removed from her household. In support
of this assertion, Jessica also revealed in the affidavit that, when she went to Lucas’ residence
after the hearing, the children cried to come with her. 10 Finally, Jessica averred that, since the
children began living with Lucas, the older child had been withdrawn from his old school and
enrolled in a new one.
Based on Jessica’s factual assertions together with the applicable Holley factors, we
believe Jessica has set up a meritorious defense to the possession order entered by the trial court,
which modified the living arrangements of the children and raised concerns regarding their best
interests. See Rhamey, 203 S.W.3d at 31 (affidavit coupled with possession until date of trial set
10
Lucas allowed the children to leave with Jessica at that time.
9
up meritorious defense to new possession order which altered status quo and raised concerns
regarding best interest of child).
C. Delay or Injury
The purpose of the third Craddock factor is “to protect a plaintiff against the sort of
undue delay or injury that would disadvantage her in presenting the merits of her case at a new
trial, such as a loss of witnesses or other valuable evidence.” Evans, 889 S.W.2d at 270.
Jessica’s motion for new trial was timely filed and urged that granting a new trial would not
result in delay or otherwise injure Lucas. See Craddock, 133 S.W.2d at 126. “Once a defendant
has alleged that granting a new trial will not injure the plaintiff, the burden of going forward with
proof of injury shifts to the plaintiff.” Evans, 889 S.W.2d at 270. Lucas has failed to come
forward with any proof that the granting of a new trial would in some way cause him injury. 11
Here, the motion to set aside the default judgment and for a new trial was filed four days
after the trial court entered the final decree of divorce. The petition had been on file for
approximately five months. See Lowe v. Lowe, 971 S.W.2d 720, 725 (Tex. App.—Houston
[14th Dist.] 1998, pet. denied) (very little time passed from original trial date to date motion for
new trial was filed, and suit had been on file for one and one-half years). We conclude that
Jessica met the third Craddock requirement.
11
Jessica’s motion did not include an offer to reimburse Lucas for expenses incurred in obtaining the default
judgment. See Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987) (offer to reimburse plaintiff for costs of default
judgment or readiness for trial are important factors in determining whether to grant new trial, but are not
precondition for granting motion). “An equitable principle is involved and the court should deal with the facts on a
case by case basis in order to do equity.” Evans, 889 S.W.2d at 270. We do not believe it is equitable to permit the
absence of an offer to reimburse Lucas’ expenses in obtaining a default judgment (which were minimal, given that
Jessica completed the petition) to preclude the granting of a new trial.
10
III. Conclusion
Because Jessica’s motion and supporting affidavit satisfied each of the Craddock
elements, the trial court erred in failing to grant Jessica’s motion for a new trial. Jessica’s sole
point of error challenges only those portions of the decree pertaining to conservatorship and child
support. We, therefore, reverse the judgment of the trial court on the issues of conservatorship
and child support only and remand the case to the trial court for further proceedings consistent
with this opinion.12
Jack Carter
Justice
Date Submitted: March 28, 2014
Date Decided: April 25, 2014
12
Although Jessica’s notice of appeal states that she “desires to appeal from all portions of the judgment,” her sole
point of error on appeal challenges only those portions of the decree pertaining to conservatorship and child support.
11