COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00052-CV
IN THE INTEREST OF P.J., JR., A
CHILD
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION 1
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Appellant M.J. (Mother) appeals the trial court’s order in this suit affecting
the parent-child relationship (SAPCR) between her and P.J. Sr. (Father)
concerning their child, P.J. Jr. (Junior). 2 We affirm.
1
See Tex. R. App. P. 47.4.
2
We use aliases for the child and the parents throughout this opinion. See
Tex. R. App. P. 9.8(b)(2).
Background Facts
Mother and Father began living together in September 2006. Mother gave
birth to Junior in August 2008. Mother and Father separated in February 2011.
On August 29, 2012, Father filed a SAPCR petition alleging that Mother
had committed family violence during the two-year period before the filing of the
petition, and he requested supervised visitation with Junior for Mother. Father
also sought temporary child support from Mother for Junior and injunctive relief.
Mother was served with citation on September 10, 2012, but did not file an
answer.
A hearing was held on November 27, 2012. Mother did not appear. After
the hearing, the trial court found that Mother had defaulted. It granted Father
immediate possession of Junior and ordered that Mother’s visitation with Junior
be supervised. The trial court also permanently enjoined Mother from causing
physical contact or bodily injury to Junior or to Father or threatening them with
imminent bodily injury; from communicating with Father except for arranging
visitation or notifying him of circumstances affecting Junior’s best interest; and
from coming within fifty feet of Father’s residence. The trial court ordered that
Mother pay $200 in child support and $25 in medical support each month.
On December 26, 2012, Mother filed a motion for new trial, arguing that
her failure to file an answer was not intentional or the result of conscious
indifference. On January 11, 2013, Mother filed an amended motion for new trial
to which she attached an affidavit stating that she did not appear because she
2
had been in the hospital “soon after getting service” and because she was “taking
care of [Junior,] . . . pay[ing for] lunch, clothing and shoes [and] socks[,] and
pictures.” The trial court held a hearing on Mother’s motion on January 31, 2013.
Mother testified that she did not appear because she was “caught up in
everything that [she] had to deal with at the time” and said she had been busy
“dealing with CPS at the time.” The trial court denied Mother’s motion for new
trial, stating that there was “not good cause for failing to file an answer for two
months despite the pregnancy, and pregnancy is not a disability.” Mother then
filed this appeal. 3
Discussion
I. Mother’s motion for new trial
In her fourth issue, Mother argues that the trial court abused its discretion
by denying her motion for new trial. She argues that the trial court’s statement
that there was “not good cause for failing to file an answer for two months despite
the pregnancy, and pregnancy is not a disability,” demonstrated that the trial
court applied the wrong standard of review.
The requirements for setting aside a default judgment by motion for new
trial were set forth by the supreme court in Craddock v. Sunshine Bus Lines, 134
Tex. 388, 393, 133 S.W.2d 124, 126 (1939). The movant must (1) establish that
the failure to answer was not intentional or the result of conscious indifference,
3
Father did not file an appellate brief in response.
3
(2) set up a meritorious defense, and (3) demonstrate that setting aside the
default will not cause a delay or otherwise injure the plaintiff. Id. “While trial
courts have some measure of discretion in the matter, as, in truth, they have in
all cases governed by equitable principles, it is not an unbridled discretion to
decide cases as they might deem proper, without reference to any guiding rule or
principle.” Id.
A defaulting party must provide some excuse, though not necessarily a
good excuse, for failing to timely file an answer or appear. See McClure v.
Landis, 959 S.W.2d 679, 681 (Tex. App.—Austin 1997, writ denied); Ferrell v.
Ferrell, 820 S.W.2d 49, 50 (Tex. App.—Corpus Christi 1991, no writ) (noting that
some excuse, but not necessarily a good excuse, will suffice). If a defendant’s
factual assertions are not controverted by the plaintiff, the defendant satisfies her
burden if she has set forth facts which, if true, negate a finding of intentional or
consciously indifferent conduct. Director, State Emps. Workers’ Comp. Div. v.
Evans, 889 S.W.2d 266, 268 (Tex. 1994).
In her motion for new trial, Mother’s excuse for not filing an answer or
appearing at trial was that she “was 7 months preg[n]ant in the hospital soon
after getting service with the petition for custody on my child [Junior] that I was
taking care of in school[,] pay[ing for] lunch, clothing and shoes [and] socks[,] and
pictures.” At the hearing on her motion, Mother stated,
And I didn’t get to reach—to make that court hearing, because
I had a lot of things that I was dealing with. I was eight[ ]months
pregnant, back and forth and whatnot. I was going through classes
4
and met on Saturdays, and it was on Lancaster for counseling. And
I was pretty much, you know, caught up in everything that I had to
deal with at the time to not appear at the court date that was issued
on the 26th of November.
Mother’s stated reasons do not satisfy her burden under Craddock. She
did not say that she had been hospitalized for the entire two months from the
time she was served in early September 2012 to the time the hearing was held in
late November 2012. See Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d 615,
617–18 (Tex. App.—El Paso 1988, no writ) (holding that defendant’s affidavit that
contained only general statements with no dates or other verifying information did
not disprove its conscious indifference). She did not claim to have classes or
other obligations on the trial date nor did she request a continuance or otherwise
make any inquiry into the case. See In re R.R., 209 S.W.3d 112, 115 (Tex.
2006) (“Not understanding a citation and then doing nothing following service
does not constitute a mistake of law that is sufficient to meet the Craddock
requirements.”) (citing Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex.
1992)); Johnson v. Edmonds, 712 S.W.2d 651, 652–53 (Tex. App.—Fort Worth
1986, no writ) (stating that default judgments are appropriate when the defendant
failed “to take some action which would seem indicated to a person of
reasonable sensibilities under the same circumstances”). Instead, she made the
intentional choice not to answer Father’s petition, to inquire about the status of
the case, or to notify the trial court of her inability to appear at trial. See
O’Connell v. O’Connell, 843 S.W.2d 212, 218 (Tex. App.—Texarkana 1992, no
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writ) (upholding a default judgment when defendant “did not act as a reasonable
person would have in preparation for the trial date”); Johnson, 712 S.W.2d at 653
(affirming a default judgment when the appellant “neither sought help nor advice
nor made inquiry about the import of the ‘papers’ he had received”).
Further, Mother failed to set up a meritorious defense. Merely alleging that
the party has a meritorious defense does not satisfy Craddock. “The motion
must allege Facts which in law would constitute a defense to the cause of action
asserted by the plaintiff, and must be supported by affidavits or other evidence
proving prima facie that the defendant has such meritorious defense.” Ivy v.
Carrell, 407 S.W.2d 212, 214 (Tex. 1966). Mother’s motion states merely that
she has a defense, but in her affidavit, Mother did not testify to any facts
constituting a defense. See Wal–Mart Stores, Inc. v. Kelley, 103 S.W.3d 642,
644 (Tex. App.—Fort Worth 2003, no pet.) (holding there was no showing of a
meritorious defense where there was no evidence submitted regarding a defense
and neither of the affidavits attached to the motion testified to facts regarding
such a defense); Wiseman v. Levinthal, 821 S.W.2d 439, 442 (Tex. App.—
Houston [1st Dist.] 1991, no writ) (holding that unverified factual allegations do
not satisfy the first prong of Craddock).
Because Mother failed to set up a meritorious defense and because she
exhibited conscious indifference toward the proceedings, the trial court did not err
by denying her motion for new trial. We overrule Mother’s fourth issue.
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II. Sufficiency of the evidence establishing Father’s paternity
In Mother’s first and second issues, she argues that Father failed to
establish standing because he did not establish his paternity.
At the beginning of the hearing on Father’s petition, the trial court
erroneously believed that Mother and Father were married and that Father was
seeking a divorce. At the end of the hearing, the trial court realized that Mother
and Father were not married. The trial judge asked Father,
Q. (BY THE COURT) Okay. Y’all weren't married, y’all just lived
together?
A. No, we just lived together.
....
Q. Okay. You’re on the birth certificate?
A. Yes, on—yes.
Q. Okay. Okay. Go ahead and have a seat. I thought y’all were
married. It’s not a divorce, but the SAPCR is approved.
Mother argues that “[b]eing named on a birth certificate, without more,
does not clothe a man with a presumption of paternity.” In re M.E.H., No. 02-05-
00119-CV, 2006 WL 909936, at *1 (Tex. App.—Fort Worth Apr. 6, 2006, no pet.)
(mem. op.). There is, however, more evidence than Father’s testimony that he is
on Junior’s birth certificate. A man is presumed to be the father of a child if
“during the first two years of the child’s life, he continuously resided in the
household in which the child resided and he represented to others that the child
was his own.” Tex. Fam. Code Ann. § 160.204(a)(5) (West 2008). Father
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testified that he and Mother were living together when Junior was born in August
2008, and they continued to live together until February 2011. Father also
represented that Junior was his child. He testified that he signed up Junior for
Medicaid and food stamps and that he “do[es] most of the providing for [Junior].”
He referred to Junior as “[his] child” in his petition and averred that he had
standing because he was Junior’s parent. The evidence was therefore sufficient
to support the unrebutted presumption that Father is Junior’s father. We overrule
Mother’s first and second issues.
III. Relief granted
In her third issue, Mother argues that the trial court violated her
constitutional right to due process when it erred by granting Father relief for
which he had not pleaded. She argues that Father failed to request that the court
make provisions for conservatorship and access to Junior and for child support
and medical support.
Mother did not present this argument to the trial court. See Tex. R. App. P.
33.1; see also In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003), cert. denied, 541
U.S. 1043 (2004) (noting that to preserve issue for appellate review, including
constitutional error, party must present to trial court a timely request, motion, or
objection, state specific grounds therefore, and obtain ruling.); In re S.G., No. 09-
09-00284-CV, 2010 WL 2541919, at *2 (Tex. App.—Beaumont June 24, 2010,
no pet.) (holding that mother waived constitutional due process argument in
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context of a SAPCR). Even if Mother had preserved this issue, we must overrule
it.
A default judgment must be supported by the pleadings. Stoner v.
Thompson, 578 S.W.2d 679, 682 (Tex. 1979); see Tex. R. Civ. P. 301; In re
A.B.H., 266 S.W.3d 596, 599 (Tex. App.—Fort Worth 2008, no pet.) (op. on
reh’g). The defendant must have fair notice of the plaintiff’s cause of action and
the relief sought. McKnight v. Trogdon–McKnight, 132 S.W.3d 126, 131 (Tex.
App.—Houston [14th Dist.] 2004, no pet.). “Generally, a pleading provides fair
notice of a claim when an opposing attorney of reasonable competence can
examine the pleadings and ascertain the nature and basic issues of the
controversy and the relevant testimony.” Taylor v. Taylor, 337 S.W.3d 398, 401
(Tex. App.—Fort Worth 2011, no pet.) (op. on reh’g) (citing Horizon/CMS
Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000)).
In the context of SAPCRs, however, detailed pleadings are not required
because the trial court’s paramount concern is the best interests of the child.
See Aguilar v. Barker, 699 S.W.2d 915, 917 (Tex. App.—Houston [1st Dist.]
1985, no writ); Boriack v. Boriack, 541 S.W.2d 237, 242 (Tex. App.—Corpus
Christi 1976, writ dism’d). Therefore, the technical rules of pleading and practice
may be of little importance. See Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.
1967) (holding technical rules of practice and pleadings are of little importance in
determining issues concerning custody of children). A court may even award
child support without any request for it in the pleadings. See Wolters v. White,
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659 S.W.2d 885, 888 (Tex. App.—San Antonio 1983, writ dism’d w.o.j.); Boriack,
541 S.W.2d at 242.
Father’s petition is a preprinted form with blanks and check boxes. Under
the “Standing” section, Father wrote
The child [Junior] I feel like is in a dangerous situation
because[] there are more than 12 or 13 people living in a 3 bedroom
home in which my child and [his] mother reside in a garage, also
there are problems with cleanliness and the child ([Junior]) being
properly cared for, as far as food, clothing, properly nourished . . . .
There’s also a history of drug use by the mother and the other
residents in the home. [Junior] is under the age of 5 and unable to
protect himself. [Mother] is currently pregnant and tested positive for
marijuana. [Mother] lacks parenting skills and has lost one child to
CPS custody due to her drug use . . . .
Father did not check any boxes under “Conservatorship & Access” regarding
who he was requesting the trial court name as the managing and possessory
conservators. He did check a box stating, “Respondent has committed family
violence during the two-year period before I filed this case. I ask the Court to
keep Respondent away from the children. But if the Court will not deny
Respondent visitation, I ask that the Court order that Respondent’s visitation be
supervised . . . .” On the next page, Father wrote, “I think that [Mother] should
continue with supervised visitation because she is not a responsible parent to be
left alone with any child or until evaluated monthly.”
Father did not check the box under the “Support” section, but under
“Request for Temporary Orders,” he checked a box requesting that Mother “pay
statutory child support, health insurance premiums for the children, and half of
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the children’s uninsured medical expenses, private school tuition or day-care
expenses during this case.”
Father’s petition, although not an example of clarity, was sufficient to put
Mother on notice that he was seeking possession of Junior and to establish
supervised visitation, which would necessitate a determination of conservatorship
and access. The trial court was also within its discretion to award child support in
Junior’s best interest. See Wolters, 659 S.W.2d at 888. We therefore overrule
Mother’s third issue.
Conclusion
Having overruled Mother’s issues on appeal, we affirm the trial court’s
judgment.
LEE GABRIEL
JUSTICE
PANEL: WALKER, MCCOY, and GABRIEL, JJ.
DELIVERED: December 19, 2013
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in the Interest of P.J., Jr., a Child
Combined Opinion