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In re X.C.J.

Court of Appeals of Texas, Fifth District, Dallas

June 3, 2019

IN THE INTEREST OF X.C.J., JR., A CHILD

          On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-17-07173

          Before Justices Bridges, Partida-Kipness, and Carlyle

          MEMORANDUM OPINION

          CORY L. CARLYLE, JUSTICE

         In this suit affecting the parent-child relationship (SAPCR), appellant Father contends the trial court erred by entering a default judgment against him without notice of the hearing at which the judgment was rendered.[1] We affirm.

         I. Background

         Father filed this suit in April 2017, seeking conservatorship and child support determinations as to his child with Mother. Mother filed a timely general denial answer and a July 2017 "Original Counterpetition" requesting injunctive and other relief against "Counterrespondent," Father. On August 30, 2017, both Father and Mother appeared in person at a hearing before an associate judge and signed an agreed "Associate Judge's Report," in which they provided their current addresses. Following that hearing, the associate judge signed agreed temporary orders regarding conservatorship and child support. In December 2017, Father's attorney filed a motion to withdraw as counsel, which the trial court granted.

         In April 2018, Mother filed a motion to enforce child support. The trial court signed an order requiring Father to "appear and show cause" at the July 2018 hearing on that motion. Father was personally served with that order but did not appear at the hearing. On July 30, 2018, the trial court signed an "Order for Capias and Setting on Bond" regarding Father, who was described in that order as "Respondent."

         On August 20, 2018, the trial court heard this case. Father did not appear at trial. At the start of trial, the trial court "called the hall" for Father, with no response. After hearing Mother's testimony, the trial court stated, "Let the record reflect that the Respondent was properly noticed of the trial setting. He failed to appear. The hall was called. There was no response; therefore, he is in default." The trial court signed a September 13, 2018 "Default Order in SAPCR" appointing Father as a possessory conservator and ordering him to pay child support. On October 12, 2018, Father appealed that judgment.[2]

         II. Father's issues

         There are two types of default judgments: a no-answer default judgment and a post-answer default judgment. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 930 (Tex. 2009) (per curiam); Tunad Enters., Inc. v. Palma, No. 05-17-00208-CV, 2018 WL 3134891, at *4-5 (Tex. App.-Dallas Jun. 27, 2018, no pet.) (mem. op.). A no-answer default judgment is "caused by a defendant's failure to answer after service." Paradigm Oil, Inc. v. Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex. 2012); see also Tex. R. Civ. P. 239. A post-answer default judgment "occurs when a defendant who has answered fails to appear for trial." Lerma, 288 S.W.3d at 925.

         An answer to a lawsuit does not necessarily have to follow a standard form. Tunad, 2018 WL 3134891, at *5. A letter that is signed by the defendant providing the name of the parties, the cause number, and the defendant's current address constitutes an answer which prevents the taking of a no-answer default judgment. Id. (citing Smith v. Lippman, 826 S.W.2d 137, 138 (Tex. 1992) (per curiam); Cox v. Nat'l Collegiate Student Loan Trust 2006-2, No. 07-14-00253-CV, 2014 WL 6656977, at *1 (Tex. App.-Amarillo Nov. 24, 2014, no pet.) (mem. op.)).

         Generally, parties in a contested case must be given forty-five days' notice of the first trial setting. Tex.R.Civ.P. 245. If a timely answer has been filed in a contested case or the defendant has otherwise made an appearance, due process rights are violated when a judgment is subsequently entered without the party having received notice of the setting of the case, even when that party previously waived notice of citation. In re K.M.L., 443 S.W.3d 101, 118-19 (Tex. 2014). But the due process right to notice prior to judgment is subject to waiver. Id. at 119.

         We review a trial court's conclusions of law de novo. BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); see also Zorrilla v. Aypco Constr. II, LLC, 469 S.W.3d 143, 155 (Tex. 2015) (procedural rule interpretation is question of law reviewed de novo).

         In his first issue, Father asserts the trial court's default order against him was improper because he "sufficiently entered an appearance to have constructively 'answered' the Counterpetition." Father signed the August 30, 2017 Associate Judge's Report, which contained the names of the parties, the cause number, and Father's current address. We conclude that report constituted an answer that precluded a no-answer ...


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