Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF A.M. AND D.M., MINORS
Appeal from the 255th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-14-08639
Justices Francis, Brown, and Stoddart
an appeal from a final decree of divorce. In three issues,
appellant Daniel Munoz argues the trial court erred by
refusing to set aside a post-answer default judgment and not
granting his motion for new trial in its entirety, the trial
court abused its discretion by excluding admissible evidence,
and the trial court abused its discretion when it divided the
parties' residences. We affirm.
Maria Munoz filed a petition for divorce and appellant
answered. On October 26, 2014, appellee filed a motion
requesting a social study and a motion for continuance
stating that the trial was set to begin on January 6, 2016,
but the parties needed more time to conduct a social study.
The record does not show the trial court ruled on this
trial court entered a final decree of divorce on February 16,
2016. The decree states that the court heard the case on
January 6, 2016. The parties agree that appellant's
counsel failed to appear on January 6. Appellant filed a
motion to reconsider, which states his counsel received
"a letter indicating transmittal of a Final Decree of
Divorce and further indicated that [counsel] had not attended
the hearing." He then learned the trial court did not
rule on the motion for continuance and the trial was not
reset. The record does not show the trial court ruled on
appellant's motion to reconsider.
March 18, 2016, appellant filed a motion for new trial citing
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124
(Tex. 1939). In an attached affidavit, appellant's
counsel stated he received the motions for a social study and
continuance, but had no record showing the disposition of the
motions. Appellant's counsel learned the trial was never
reset when he received the Final Decree of Divorce. Counsel
asserted he reasonably relied upon the motion for continuance
to conclude the trial date would change. He stated the
"issue of conservatorship and primary possession [of the
children] were contentious due to the living arrangements of
the Petitioner. Petitioner was cohabiting with a married man
who allegedly had a criminal record at the time of the
Default Judgment." Following a hearing, the trial court
granted the motion for new trial as to the division of
property, but denied the motion as to custody, access, and
possession of the children. The trial court entered a second
Final Decree of Divorce on February 24, 2017. This appeal
first issue, appellant argues the trial court erred by
failing to grant the motion for new trial in its entirety. We
review a trial court's ruling on 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).
Craddock provides that a new trial should be granted
when (1) the defaulting party's failure 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, 133 S.W.2d at 126. The defaulting party
bears the burden to set forth facts establishing all three
prongs of the Craddock test. In re A.T.,
No. 05-16-00539-CV, 2017 WL 2351084, at *10 (Tex. App.-Dallas
May 31, 2017, no pet.) (mem. op.). If the motion for new
trial and accompanying affidavits or other evidence fail to
establish any element of the test, we will affirm the trial
court's denial of a new trial. Holt Atherton Indus.,
Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); In re
A.T., 2017 WL 2351084, at *10.
meritorious defense is one that, if proved, would cause a
different result upon retrial of the case. Abuzaid v.
Modjarrad & Associates, P.C., No. 05-16-00777-CV,
2017 WL 5559591, at *7 (Tex. App.-Dallas Nov. 14, 2017, no
pet.) (mem. op.). It is not sufficient for a motion for new
trial to merely allege the movant has a meritorious defense.
Id. A motion for new trial sets up a meritorious
defense "if the facts alleged in the movant's motion
and supporting affidavits set forth facts which in law
constitute a meritorious defense, regardless of whether those
facts are controverted." In re R.R., 209 S.W.3d
112, 116 (Tex. 2006) (per curiam). The motion must be
"supported by affidavits or other evidence providing
prima facie proof that the defendant has such a
defense." Lerma, 288 S.W.3d at 928.
question whether appellant adequately briefed his first issue
because it lacks analysis of the Craddock factors
with adequate citations to the record. See Tex. R.
App. P. 38.1(i). However, liberally construing his brief, we
conclude the trial court did not err by denying his motion
for new trial because appellant did not assert a meritorious
defense. Although he stated he had such a defense and that
the issue of conservatorship was contested, the motion was
not supported by affidavits or other evidence providing prima
facie proof that he had a defense. See Lerma, 288
S.W.3d at 928. We overrule appellant's first issue.
second issue, appellant states the trial court abused its
discretion by excluding admissible evidence and denying his
right to cross examine a witness. Appellant refers the Court
to various portions of the record but provides no analysis to
support his issue.  Further, although he cites two cases,
appellant makes no effort to apply the law from those cases
to facts in the record. Appellant's second issue is
devoid of argument. An appellant's brief must contain,
among other things, a clear and concise argument for the
contentions made, with appropriate citations to authorities
and to the record. See Tex. R. App. P. 38.1(i). We
conclude appellant's brief lacks appropriate citations to
the record and authorities as well as arguments to show the
trial court's rulings were in error. See id. We
overrule appellant's second issue.
third issue, appellant states the trial court erred in its
division of the parties' residences. Appellant does not
make any citation to authorities or the record as it relates
to the division of property between the parties. See
id. He also offers no argument explaining how the
division of property was erroneous. See id. While
his third issue appears in his statement of issues, it does
not appear anywhere else in his brief. We conclude
appellant's third issue is inadequately briefed. See
id. We overrule his third issue.
affirm the trial court's ...