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In re P.J.

Court of Appeals of Texas, Second District, Fort Worth

December 19, 2013

IN THE INTEREST OF P.J., JR., A CHILD

FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY.

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

MEMORANDUM OPINION[1]

LEE GABRIEL, JUSTICE.

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.

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 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, (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 ...


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