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In re R.F.

Court of Appeals of Texas, Second District, Fort Worth

June 13, 2019

In the Interest of R.F. and S.F., Children

          On Appeal from the 431st District Court Denton County, Texas Trial Court No. 2009-50631-367

          Before Kerr, Pittman, and Womack, JJ.

          MEMORANDUM OPINION

          Mark Pittman Mark Pittman Justice

         I. Introduction

         In two issues, pro se appellant Father appeals the trial court's order denying his motions to set aside a default judgment. We affirm.

         II. Background

         Father and Mother divorced on March 10, 2011. Two years later, Father was held in criminal contempt by the trial court because he had violated one of the divorce decree's provisions, and the trial court assessed $7,500 in attorney's fees against Father.[1]

         On October 17, 2017, Mother filed a petition to modify the parent-child relationship with regard to R.F. and S.F., and a hearing on temporary orders was set for December 20, 2017. Father did not answer.

         On December 14, 2017, the Honorable Brody Shanklin, judge of the 211th Judicial District Court of Denton County, heard and granted Mother's request for a default judgment, finding in his order that Father, "although duly and properly cited, did not appear and wholly made default."

         Four days after Judge Shanklin signed the default judgment against him, Father filed a form pro se motion to set it aside. Line 5 of the form states, "The default judgment should be set aside due to: (Check box 5a or box 5b.)" Box 5a covers lack of notice. The person completing the form can indicate by checking a box that he "did not file an answer because [he] was not properly served with citation" or that he "filed an answer but did not appear at the hearing because [he] did not receive proper notice of the hearing." Under the two check box options in 5a, the person completing the form is asked to state specific facts that show how the failure to file an answer or failure to appear at the hearing was due to improper service or improper notice of the hearing. Father did not check any of the boxes under 5a or write in any explanation with regard to notice.[2]

         Box 5b covers accident or mistake. See Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm'n Op.] 1939) (stating that a default judgment should be set aside and a new trial ordered when (1) the defendant's failure to answer before judgment was not intentional or the result of conscious indifference on his part but was due to accident or mistake; (2) the motion for new trial sets up a meritorious defense; and (3) the motion is filed "at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff"). Father checked box 5b and indicated that he did not file an answer because of accident or mistake rather than intentional or conscious indifference, stating in the space provided on the form,

I apologize for making a mistake in not filing a response to the court in 20 days. I thought signing for the document was the re[s]ponse that I would be at the hearing on December 20th 2017 at 1:30pm. I was fully prepared to present all my facts and evidence on that day. My former attorney . . . told me he was no longer handling family law cases and he did not tell me I needed to send a response to the court before the Dec. 20th hearing date. He had handled all such hearing requests for the many court hearings in the past. I thought I just had to prepare for Dec. 20th and didn't realize another hearing could be called if I didn't actual[ly] send in a written response. I apologize again for my mistake and would like a hearing to set aside the judgment in this matter.

         The form expressly states, "If you checked 5b, you must also complete 5b(1)." 5b(1) states, "I have a meritorious (good) defense to this case: (State specific facts.)" See id. Father left this portion of the form blank.

         Over 30 days after the trial court signed the default judgment, Father hired counsel who filed a "Motion for Leave of Court to File Supplemental Motion to Set Aside Default Judgment." In the motion, Father's counsel noted that the trial court had discretion to consider an untimely amended motion for new trial within its plenary power. To the motion, Father's counsel attached a "Supplemental Motion to Set Aside ...


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