Opinion issued June 19, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-01087-CV
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JZAVELA-ARETHEA KAY-DIU DOUGHERTY-WILLIAMS, Appellant
V.
MICHAEL STEVEN DOUGHERTY, Appellee
On Appeal from the 257th District Court
Harris County, Texas
Trial Court Case No. 2013-02545
MEMORANDUM OPINION
Appellant Dougherty-Williams appeals the underlying default divorce
judgment, seeking a new trial. We affirm.
BACKGROUND
Appellee Dougherty filed for divorce on January 15, 2013, and Dougherty-
Williams answered through her attorney on February 1, 2013. In April 2013,
Dougherty-Williams’s attorney withdrew from representation, and Dougherty-
Williams continued pro se. Dougherty-Williams did not appear at the August 26,
2013 trial, resulting in a default judgment in favor of Dougherty that was signed on
September 10, 2013.
On September 13, 2013, Dougherty-Williams filed a “Motion to Set Aside
Default Judgment” and, on October 9, 2013, a “Motion for New Trial.” Following
a November 7, 2013 evidentiary hearing, the associate judge denied Dougherty-
Williams’s motions. The presiding judge then held another evidentiary hearing on
December 4, 2013, and then again denied Dougherty-Williams’s motions.
Dougherty-Williams appeals the default judgment and the denial of her request for
a new trial.
ISSUES ON APPEAL
On appeal, Williams raises three issues:
1. “The trial court erred in granting [Dougherty’s] divorce petition
by default as [Dougherty-Williams] did not receive notice of
the trial on the merits.”
2. “[Dougherty-Williams] did not have an opportunity to be heard
concerning the division of community property, consequently,
the division of community property was grossly unjust and
inequitable.”
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3. “The trial court erred in denying [Dougherty-Williams]’s
motion for new trial giv[en] the attending facts.”
POST-ANSWER DEFAULT
At the beginning of the August 26, 2013 trial, the trial court announced that
it was taking judicial notice that (1) Dougherty-Williams made a general
appearance and was represented by counsel until April 26, 2013, (2) Dougherty-
Williams was sent a scheduling order and notice indicating that trial was set for
August 26, 2013, and (3) the scheduling order and notice were mailed to “2534
Splintwood Court, Kingwood, Texas 77345,” which was the address listed on
Dougherty-Williams’s attorney’s motion to withdraw.
Dougherty testified at trial that (1) he and his family had been domiciled in
Harris County for more than six months, (2) his marriage had become
unsupportable, (3) his wife was not currently pregnant, and (4) the only child of the
marriage is 18 years old and attends Kingwood College. Dougherty testified that
the Splintwood Court home was Dougherty-Williams’s last known address.
Dougherty’s inventory and proposed property division were entered into evidence.
He proposed awarding to Dougherty-Williams’ seventy-five percent of the net
proceeds from the sale of their home and dividing various assets, retirement
accounts, and bank accounts between them. At the close of the evidence, the trial
court granted the divorce and adopted Dougherty’s proposed property division.
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The final decree awarded to Dougherty approximately 52% of the total
community estate and awarded to Dougherty-Williams approximately 48% of the
total community estate.
In her first issue, Williams argues that “the trial court erred in granting
[Dougherty]’s divorce petition by default judgment as [Dougherty-Williams] did
not receive notice of the trial on the merits.” Specifically, Dougherty-Williams
argues that she failed to appear at trial because Dougherty had forwarded all the
mail from their home, i.e., the Splintwood Court house, to a post-office box to
which she did not have access. Finally, she argues that default judgment was
improper because Dougherty did not introduce evidence in support of his petition.
Dougherty responds that Dougherty-Williams had “actual or constructive
notice of the trial date” and “disputes the unfounded and baseless allegation
concerning the alleged forwarding of [Dougherty-Williams]’s mail.” He argues
that “the trial court acted properly given the evidence and testimony before the
court.”
A defendant who has made an appearance in a cause is entitled to notice of
the trial setting as a matter of due process under the Fourteenth Amendment. LBL
Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989). A
defendant who does not receive notice of a post-answer default judgment
proceeding is deprived of due process. Id.
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“Notice of a trial setting does not always appear in the clerk’s record and
need not affirmatively appear in the record as a whole.” In re Marriage of Parker,
20 S.W.3d 812, 816 (Tex. App.—Texarkana, 2000, no pet.). The law presumes
that a trial court will hear a case only after giving proper notice to the parties. Tex.
Dep’t of Pub. Safety v. Mendoza, 956 S.W.2d 808, 812–13 (Tex. App.—Houston
[14th Dist.] 1997, no pet.). Here, nothing in the trial record rebuts that
presumption, and there is affirmative evidence that notice of the trial setting was
sent to Dougherty-Williams at her current address.
In support of her argument that default judgment should not have been
granted because she did not receive notice of the trial setting, Dougherty-Williams
does not point to any evidence from the trial record contradicting the evidence that
notice was provided.1 Rather, she offers only her contention that “if this case is
remanded she possess[es] and will show unto the trial court letters from the post
office supporting and buttressing” her contention that Dougherty forwarded her
mail without her knowledge. But the rules of appellate procedure require
appellant’s brief to contain “a clear and concise argument for the contentions
1
In arguing that the default judgment was improper, she does cite evidence from the
motion-for-new-trial hearing, which we discuss in addressing her argument that
the trial court erred by denying her motion for new trial. But that evidence is not
properly considered in determining whether the trial court erred in granting a
default judgment in the first instance after finding that Dougherty-Williams was
properly provided notice of trial, because the new-trial evidence was not before
the trial court when it granted the default judgment.
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made, with appropriate citations to . . . the record.” TEX. R. APP. P. 38.1(i).
Because the record from trial affirmatively demonstrates that Dougherty-Williams
was provided notice of the trial setting and nothing in the actual record supports
Dougherty-William’s argument otherwise, we reject her argument that the trial
court erred in entering a default judgment because notice was allegedly defective.
Dougherty-Williams’s argument that the default divorce was improper
because Dougherty did not introduce evidence in support of his petition is likewise
not supported by the actual trial record. Dougherty testified in support of his
petition for divorce, and the court admitted into evidence his sworn inventory and
proposed property division, which Dougherty testified was “just and right, fair and
equitable.” Dougherty-Williams does not complain of any specific deficiency in
his testimony or evidence.
We overrule Dougherty-Williams’s first issue.
JUST AND RIGHT DIVISION
In her second issue, Dougherty-Williams argues that, because she “did not
have an opportunity to be heard concerning the division of community property, . .
. a just and right division of community property of the parties was not made by the
trial court.” Specifically, she contends that she was entitled to spousal support
because “the parties were married for over 10 years” and that, although their son is
over the age of 18, he “requires substantial care because of a disability and [she]
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presently lacks earning capacity adequate to provide support for [his] minimum
reasonable needs.”
Dougherty responds that the trial court’s division of property was within the
court’s discretion. Specifically, he notes that the trial court had before it a
complete inventory of the community’s assets and liabilities, and that Dougherty
testified that his proposed division was “just and right, fair and equitable.” Finally,
he argues that Dougherty-Williams’s assertion that she was entitled to child
support for their adult child is not supported by any evidence before the trial court,
and does not speak to whether the property division was just and right.
The standard of review for property division issues in family law cases is
abuse of discretion. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998).
“A default judgment . . . will not stand without affirmative proof to support it.”
Wilson v. Wilson, 132 S.W.3d 533, 539 (Tex. App.—Houston [1st Dist.] 2004, pet.
denied). Dougherty-Williams does not, however, challenge the sufficiency of the
evidence presented in support of the trial court’s division of property; nor does she
contend that the division was inequitable on the evidence presented. Rather, her
only argument is that she was not given an opportunity to be heard as to other
evidence that could have supported a different division. Given our holding that the
record established she was properly given notice and, thus, an opportunity to be
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heard, her argument that a just and right division was not made because she was
deprived of an opportunity to be heard also fails.
We overrule Dougherty-Williams’s second issue.
MOTION FOR NEW TRIAL
On September 13, 2013, Dougherty-Williams filed a Motion to Set Aside
Default Judgment in which she stated that her “failure to appear on the trial date
was the result of lack of notice of trial,” and that she “was pro-se and relied to her
detriment on the fact that she thought her husband, Petitioner[,] or his attorney
would notify her of a trial setting.” She attached an affidavit averring that she was
not aware of the setting and that, although Dougherty had called her several times
over the summer, he never mentioned the trial setting.
On October 9, 2013, Doughtry-Williams filed a Motion for New Trial
stating that (1) she did not have notice of the trial setting; (2) her attorney had
withdrawn before trial and her attorney’s motion to withdraw did not mention a
trial setting; (3) she did not receive the certified mail notices of the trial setting; (4)
her failure to appear was not intentional or the result of conscience indifference;
(5) had she had notice, she would have appeared as she did for all hearings prior to
trial; (6) she had a meritorious defense because she would have introduced
evidence that she was a stay-at-home mother raising the parties’ special needs
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child, and a student who has not worked in the past 25 years; and (7) a new trial
would not injure Dougherty.
Two hearings were held. An associate judge held the first hearing on
November 7, 2013, and both Dougherty-Williams and Dougherty testified.
Dougherty-Williams testified that she was not aware of the trial setting, that she
was not represented by counsel, and that she did not receive any correspondence
about the trial date from the court, Dougherty, or Dougherty’s attorney. According
to Dougherty-Williams, she first learned of the trial date after it has passed from
the new attorney she hired. Finally, she stated that she believed that the trial
court’s division would have been different if it had heard evidence that she would
have presented. On cross-examination, she verified that her Splintwood Court
address was correct on numerous pieces of certified-mail that were stamped
“unclaimed.”
Dougherty testified that Dougherty-Williams’s testimony that he never told
her about the trial date was not accurate. He testified that he told her about the trial
date on at least two occasions, once in May and once around June.
The following exhibits were also introduced at the hearing:
June 19, 2013 letter from Dougherty’s attorney—which states it was
sent via both certified and regular mail—addressed to Dougherty-
Williams at her Splintwood Court home address, enclosing discovery
requests,
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certified mail envelope, postmarked June 26, 2013, addressed to
Dougherty-Williams at her Splintwood Court home address, marked
“unclaimed” and “return to sender,”
July 19, 2013 letter from Dougherty’s attorney—which states it was
sent via both certified and regular mail—addressed to Dougherty-
Williams at her Splintwood Court home address, notifying her about
the August 26, 2013 trial date and time, and requesting that
Dougherty-Williams contact him about selecting a mediator,
certified mail envelope, postmarked July 19, 2013, addressed to
Dougherty-Williams at her Splintwood Court home address, marked
“unclaimed” and “return to sender,”
July 23, 2013 letter from Dougherty’s attorney—which states it was
sent via both certified and regular mail—addressed to Dougherty-
Williams at her Splintwood Court home address enclosing
Dougherty’s Inventory and Appraisement, and reminding Williams
that there is an August 26, 2013 trial date and that they need to select
a mediator,
certified mail envelope, postmarked July 23, 2013, addressed to
Dougherty-Williams at her Splintwood Court home address, marked
“unclaimed” and “return to sender,”
August 2, 2013 letter from Dougherty’s attorney—which states it was
sent via both certified and regular mail—addressed to Dougherty-
Williams at her Splintwood Court home address enclosing
Dougherty’s Proposed Division of Property,
certified mail envelope, postmarked August 5, 2013, addressed to
Dougherty-Williams at her Splintwood Court home address, marked
“unclaimed” and “return to sender.”
At the close of the evidence, the associate judge denied Dougherty-
Williams’s request to set aside the default judgment.
On December 4, 2013, the presiding judge held a de novo hearing on
Dougherty-Williams’s request for a new trial. Dougherty-Williams again testified
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that she did not have actual notice of the trial date and that she attended every
hearing about which she had notice.
Dougherty-Williams also testified that she had trouble receiving mail at her
house, with some items taking two to four months to be delivered, and some never
arriving. She stated that she did not receive mail for the summer and that she went
to the post office almost every day to complain about her lost mail. She verified
that each exhibit introduced at the November hearing was properly addressed to
her, but stated that she had never seen any of the correspondence and had never
received a notice from the post office about having certified mail to pick up. Each
of the exhibits from the November hearing was again admitted into evidence.
Dougherty-Williams’s next-door neighbor testified that she had in the past
received other people’s mail at her house, including the Doughertys’ mail, and
that—when she receives her neighbors’ mail by mistake—she delivers the mail to
the correct person.
Dougherty again testified that he verbally notified Dougherty-Williams at
least twice about the trial date. He testified to recalling only one occasion when
they had trouble with their mail service before he moved out of the Splintwood
Court home in December of 2012. At the close of the hearing, the trial court
denied Williams’s request for a new trial.
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In her third issue, Dougherty-Williams argues that the trial court erred in
denying her request for a new trial. Specifically, she contends that “neither
[Dougherty] nor his counsel was able to prove that [Dougherty-Williams] received
notice of the trial” and that a new trial should have been granted in the interest of
justice because Dougherty forwarded all their mail to a post office box that she
could not access.
Dougherty responds that the trial court’s denial of Dougherty-Williams’s
motion was within its discretion because the trial court was the fact-finder and sole
judge of the evidence and credibility. Given Dougherty’s testimony that he
provided Dougherty-Williams with actual notice, and the evidence supporting the
inference that Dougherty-Williams was engaged in selective acceptance of the
certified mail related to this case, he contends that it was within the trial court’s
discretion to conclude that Dougherty-Williams had received actual or constructive
notice of the trial setting.
We agree with Dougherty. The disposition of a motion for new trial is
within the trial court’s sound discretion; we will not disturb the court’s ruling
absent an abuse of that discretion. Waffle House, Inc. v. Williams, 313 S.W.3d
796, 813 (Tex. 2010). A trial court abuses its discretion if it acts in an
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unreasonable or arbitrary manner or without reference to any guiding rules and
principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).2
“When the evidence presented by the defaulting party is controverted by the
opposing side, it is the duty of the court, as the fact finder at a hearing on motion
for new trial, to ascertain the true facts surrounding the default circumstances.”
Harmon Truck Lines, Inc. v .Steele, 836 S.W.2d 262, 265 (Tex. App.—Texarkana
1992, writ dism’d). The court, as the fact-finder at the hearing, is “the sole judge
of the credibility of the witnesses and the weight to be given to their testimony.”
Stein v. Meachum, 748 S.W.2d 516, 518 (Tex. App.—Dallas 1988, no writ).
Here, the trial court was faced with two directly contradictory contentions,
i.e., Dougherty’s assertion that he told Dougherty-Williams about the trial setting
more than once and Dougherty-Williams’s insistence that Dougherty did not tell
her about the trial setting. It was squarely within the trial court’s providence to
assess which testimony was credible.
2
Generally, before a default judgment can be set aside and a new trial granted, the
defaulting party must satisfy the three elements of the Craddock test, i.e., (1) the
defaulting party’s failure to answer or to appear was not intentional, or the result
of conscious indifference, but was due to a mistake or an accident; (2) the
defaulting party has a meritorious defense or claim; and (3) the motion is filed at a
time when the granting of a new trial will not occasion delay or work other injury
to the prevailing party. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 392–
93, 133 S.W.2d 124, 126 (Tex. 1939). We have held, though, that if a defaulting
party establishes no reasonable notice of a trial setting, it need not establish the
second and third prongs of Craddock. Mahand v. Delaney, 60 S.W.3d 371, 375
(Tex. App.—Houston [1st Dist.] 2001, no pet.).
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The trial court also noted, at the close of the December hearing, that the
court sent Dougherty-Williams notice of the trial setting by regular mail, which
was not returned, and that Dougherty’s attorney also sent numerous certified
notices that were all unclaimed at the post office. Each of these notices from
Dougherty’s attorney was also sent by regular mail, which was not returned.
Although Dougherty-Williams testified at the December hearing that much of her
mail was not delivered over the summer, she made no mention of problems with
mail service during her testimony at the November hearing.
The trial court could have also found Dougherty-Williams’s testimony that
she never received notice from the post office about her numerous pieces of
certified mail not credible, given that she later testified that she constantly, over the
course of the summer, inquired in person about her mail at the post office.
Approximately $14,980.00 v. State, 261 S.W.3d 182, 189 (Tex. App.—Houston
[14th Dist.] 2008, no pet.) (“Constructive notice may be established if the serving
party demonstrates compliance with Rule 21a and presents evidence that the
intended recipient engaged in instances of selective acceptance or refusal of
certified mail relating to the case.”).
Because Dougherty-Williams has not demonstrated that the trial court
abused its discretion in denying her motion for new trial, we overrule her third
issue.
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CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
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Jzavela-Arethea Kay-Diu Dougherty-Williams v. Michael Steven Dougherty
Combined Opinion