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Schindler v. Schindler

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

June 28, 2018

DONALD L. SCHINDLER, Appellant,
v.
ELIZABETH M. SCHINDLER, Appellee.

          On appeal from the 25th District Court of Lavaca County, Texas.

          Before Justices Contreras, Longoria, and Hinojosa Memorandum Opinion by Justice Longoria

          MEMORANDUM OPINION

          NORA L. LONGORIA Justice

         Appellant Donald L. Schindler appeals from a no-answer default final decree of divorce. By seven issues, which we construe as two with several sub-issues, Donald argues he is entitled to a new trial and the judge erred by denying his motion for new trial. We affirm in part and reverse and remand in part.

         I. Background

         Donald and appellee Elizabeth Schindler were married in 2001. The couple had two children during their marriage. In February 2014, the couple ceased living together. Elizabeth filed for divorce from Donald on September 9, 2014, asserting the marriage had become insupportable because of discord or conflict of personalities. Donald was served with notice of the divorce filing and request for temporary orders on September 22, 2014. Donald did not file an answer to the divorce petition or otherwise appear in the suit. On October 1, 2014, a hearing was held on Elizabeth's motion for temporary orders, at which Donald did not appear. The trial court granted Elizabeth's motion and signed default temporary orders on October 14, 2014. Subsequently, the court ordered the case retained on the docket on October 16, 2015.

         At a hearing on December 15, 2015, the court granted the divorce, and again Donald was not present. Elizabeth offered into evidence her and Donald's "Schedule F" from their jointly filed 2013 tax return showing Donald had an approximate income of $136, 757.00 that year. She also offered into evidence testimony regarding her separate property obtained before the marriage, her request for child support and spousal maintenance, Donald's separate property, their separate bank accounts, and their separate personal property and possessions. Elizabeth testified that Donald had exercised his visitation rights with the children as set forth in the temporary orders, primarily on weekends, some midweek visits, and some holidays. In addition to her testimony, she offered into evidence an appraisal for her royalty interests in property located in Lavaca County and a proposed property division based on her testimony. The court granted the no-answer default divorce and signed the final decree of divorce on June 16, 2016. Donald filed a motion for new trial on July 18, 2016, and a hearing was held on August 16, 2016. The trial court denied the motion for new trial on August 30, 2016, and this appeal followed.

         II. Discussion

         By seven issues, which we construe as two with several sub-issues, Donald asserts that the trial court erred by (1) denying his motion for new trial and (2) rendering a divorce decree that: (a) set the child support in an amount not within the guidelines; (b) granted him only a standard possession order when he is entitled to expanded standard visitation; (c) made Elizabeth sole managing conservator; (d) did not divide the community property in a manner that is just and right; (e) ordered him to pay spousal maintenance where the evidence was insufficient to establish entitlement to such payments; and (f) granted Elizabeth injunctive relief in the absence of sufficient evidence to support such relief and in ordering the injunctions to apply solely to him.

         A. Motion for New Trial

         In his first issue, Donald contends that the trial court erred in denying his motion for a new trial.

         1. Standard of Review and Applicable Law

         When a default judgment is attacked by a motion for new trial, the critical question is: "Why did the defendant not appear?" Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012) (quoting Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 574 (Tex. 2006)); see Lynch v. Lynch, 540 S.W.3d 107, 121 (Tex. App.-Houston [1st Dist.] 2017, pet. filed). We review a trial court's decision to overrule a motion to set aside a default judgment and grant a new trial for abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). The Supreme Court of Texas established the standard for setting aside a default judgment in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). Under the Craddock test, post-answer as well as no-answer default judgments should be vacated and a new trial granted when the defaulting party establishes that: (1) the 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 motion for a new trial sets up a meritorious defense; and (3) granting a new trial will not cause delay or work other injury to the prevailing party. In re R.R., 209 S.W.3d 112, 115 (Tex. 2006); Craddock, 133 S.W.2d at 126. When a defaulting party meets all three Craddock-test elements, a trial court abuses its discretion if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926; Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994). When as here, no findings of fact and conclusions of law are filed, the denial of motions to set aside the default judgment and for new trial must be upheld on any legal theory supported by the evidence. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984); Lynch, 540 S.W.3d at 121.

         2. Analysis

         Beginning our analysis with the Craddock test, we must first determine whether Donald proved that his failure to file an answer or otherwise appear in the divorce proceedings was not intentional or the result of his conscious indifference. See Craddock, 133 S.W.2d at 126. In making our determination, we turn to Donald's actions and knowledge. See Lynch, 540 S.W.3d at 121 (citing Dir., State Emp. Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994)). The Texas Supreme Court has held that some 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. In re R.R., 209 S.W.3d at 115. However,

when the trial court conducts an evidentiary hearing on a motion for new trial and the party that obtained the default judgment presents controverting evidence at the hearing to show that the defaulted party acted intentionally or with conscious disregard to his rights, the question of why the defaulted party failed to answer presents a question of fact, which is resolved by the factfinder.

Lynch, 540 S.W.3d at 122 (citations omitted). As the factfinder, the trial court may generally believe all, none, or part of a witness's testimony. Id. In determining if Donald's factual assertions are controverted, we look to all the evidence in the record. See Evans, 889 S.W.2d at 269.

         At the hearing on his motion for new trial, Donald testified that he doesn't recall being served with divorce papers though it was "possible that [he] did receive them." He explained that he was suffering from depression and was seeking medical help for his symptoms, but that until shortly before the hearing, nothing had been working. He stated that he was unable to function for full days at a time for a long period of time, and because of that, he was unable to participate in the divorce proceedings. He provided a note from a psychiatrist he had been seeing for the six months prior to the hearing on his motion for new trial.

         When cross-examined, Donald noted that he received paperwork regarding the divorce from a sheriff, but could not recall when or whether it was the petition or not. It was also brought out through cross-examination that, during the pendency of the divorce, Donald acted in accordance with the temporary orders that were in place, including exercising his visitation with his children and paying Elizabeth financial support through February 2016. Furthermore, he testified that he had been working in 2014, when the divorce was initiated by Elizabeth, and was able to work until November 2015, when his depression symptoms rendered him bed-ridden; it was from November 2015, until approximately March 2016, that he stated he was unable to work.

         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. See Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex. 1992) (citing Butler v. Dal Tex Mach. & Tool Co., 627 S.W.2d 258, 260 (Tex. App.-Fort Worth 1982, no writ)); In re R.R., 209 S.W.3d at 115. Here, although Donald does not claim he did not understand the citation, he does explain that he may have received the citation, but did nothing with it because of his depression.[1] Donald's testimony regarding his debilitating depression symptoms was controverted by the elicited testimony of his ability to work, exercise his visitation rights with his children, and maintain making payments to Elizabeth, among other things.

         After reviewing the evidence of Donald's acts and of his knowledge, we conclude that the trial court could have reasonably determined that Donald acted with conscious indifference to the proceedings when he failed to answer the suit, and as a result, did not meet the first Craddock element. See Craddock, 133 S.W.2d at 126; see also Evans, 889 S.W.2d at 269 (stating that courts look to knowledge and acts of defaulting party to determine whether failure to answer or appear was intentional or due to conscious indifference). Accordingly, we hold that the trial court did not abuse its discretion ...


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