Appeal from the 220th District Court Comanche County, Texas
Trial Court Cause No. DV02117.
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
M. BAILEY CHIEF JUSTICE.
Ronald Dwayne Meador, appeals from a no-answer default final
decree of divorce. Appellant presents a sole issue on
appeal-he contends that the trial court erred by failing to
grant a new trial because he satisfied all three elements of
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124
(Tex. 1939). We affirm.
and Appellee, Wanda Kay Meador, married in 2004 and separated
in 2010. Approximately seven years after they separated,
Appellee filed for divorce. Appellant was served with
citation on March 9, 2017, but did not file an answer.
18, 2017, the trial court held a final hearing on
Appellee's petition for divorce. Appellant did not appear
at the hearing. After hearing testimony from Appellee, the
trial court granted Appellee's petition for divorce,
divided the marital property and debt, named Appellant and
Appellee the joint managing conservators of their child,
determined that Appellant's possession of the child would
be by the agreement of the parties, and ordered Appellant to
pay child support to Appellee. In the final decree of
divorce, the trial court found that Appellant, "although
duly and properly cited, did not appear and wholly made
timely filed a motion for new trial. As relevant to this
appeal, Appellant asserted that he did not file an answer to
the divorce petition because he and Appellee were discussing
how to resolve the divorce. After an evidentiary hearing, the
trial court denied the motion for new trial.
review a trial court's decision to deny a motion for new
trial under an abuse of discretion standard. Dolgencorp
of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009)
(per curiam). In the case of a default judgment, a trial
court abuses its discretion by not granting a new trial when
the defendant establishes all three elements of the
Craddock test. Id.; Dir., State Emps.
Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268
provides that a new trial should be granted when (1) the
defendant's 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 new trial
sets up a meritorious defense; and (3) the granting of a new
trial will not cause delay or otherwise injure the plaintiff.
Craddock, 133 S.W.2d at 126; see also Milestone
Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 309
(Tex. 2012) (per curiam). The defendant has the burden of
proving all three elements. Action Powersports, Inc. v.
1STEL, Inc., 500 S.W.3d 632, 639-40 (Tex. App.-Texarkana
2016, no pet.).
first to whether Appellant established that his failure to
answer was not intentional or the result of conscious
indifference. "Failing to file an answer intentionally
or due to conscious indifference means 'the defendant
knew [he] was sued but did not care.'" In re
R.R., 209 S.W.3d 112, 115 (Tex. 2006) (per curiam)
(quoting Fid. & Guar. Ins. Co. v. Drewery Constr.
Co., 186 S.W.3d 571, 575-76 (Tex. 2006) (per curiam)).
When determining whether the defendant's failure to file
an answer was intentional or due to conscious indifference,
we consider the knowledge and acts of the defendant.
Milestone Operating, 388 S.W.3d at 309. More than
mere negligence is required. Smith v. Babcock &
Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex. 1995) (per
curiam). "The absence of an intentional failure to
answer rather than a real excuse for not answering is the
controlling fact." Milestone Operating, 388
S.W.3d at 310 (citing Craddock, 133 S.W.2d at 125).
Generally, 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.
defendant satisfies his burden as to the first
Craddock element when his factual assertions, if
true, negate intentional or consciously indifferent conduct
by the defendant and those factual allegations are not
controverted by the plaintiff. Sutherland v.
Spencer, 376 S.W.3d 752, 755 (Tex. 2012). However, when
the plaintiff controverts the defendant's factual
assertions, the issue becomes a fact question for the trial
court to determine. Lynch v. Lynch, 540 S.W.3d 107,
122 (Tex. App.-Houston [1st Dist.] 2017, pet. denied). The
trial court, as the factfinder, must determine the "true
facts surrounding the default circumstances." Roman
v. Ramirez, 573 S.W.3d 341, 352 (Tex. App.-El Paso 2019,
pet. denied) (quoting Harmon Truck Lines, Inc. v.
Steele, 836 S.W.2d 262, 265 (Tex. App.-Texarkana 1992,
writ dism'd)). "As the sole judge of the credibility
of the witnesses and the weight to be given to their
testimony, the trial court may choose to believe all, none,
or part of a witness's testimony." Utz v.
McKenzie, 397 S.W.3d 273, 279 (Tex. App.-Dallas 2013, no
pet.) (quoting Stein v. Meachum, 748 S.W.2d 516, 517
(Tex. App.-Dallas 1988, no writ)).
affidavit filed in support of the motion for new trial,
Appellant asserted that, because of his and Appellee's
"ability to communicate and discuss the divorce and what
[they] wanted to do," he "chose not to hire an
attorney." He also stated that he "was not
consciously indifferent in [his] lack of filing an
answer" because he believed, based on his "pattern
of communication" with Appellee and their "prior