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Meador v. Meador

Court of Appeals of Texas, Eleventh District

August 8, 2019


          On Appeal from the 220th District Court Comanche County, Texas Trial Court Cause No. DV02117.

          Panel consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J. [2]



         Appellant, 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.

         Background Facts

         Appellant 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.

         On May 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 default."

         Appellant 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.


         We 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 (Tex. 1994).

         Craddock 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.).

         We turn 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.

         A 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)).

         In his affidavit filed in support of the motion for new trial, [1] 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 history ...

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