Comanche Nation v. Fox

• Decision Date: 12 February 2004
• Docket Number: No. 03-03-00151-CV.,03-03-00151-CV.
• Citation: 128 S.W.3d 745
• Parties: The COMANCHE NATION and Jennifer Perry, Appellants v. Joseph N. FOX and Patricia M. Fox, Appellees.
• Court: Texas Court of Appeals

128 S.W.3d 745

The COMANCHE NATION and Jennifer Perry, Appellants v. Joseph N. FOX and Patricia M. Fox, Appellees.

No. 03-03-00151-CV.

Court of Appeals of Texas, Austin.

February 12, 2004.

Jennifer Perry, Apache, OK, pro se.

Janis Flanagan Darley, Horning, Grove, Hulett, Thompson & Comstock, Lon J. Darley, Hiltgen & Brewer, PC, Oklahoma City, OK, for Appellant Comanche Nation.

Cynthia Borgfeld Smith, Cynthia Borgfeld Smith, PC, Georgetown, for Appellees.

Before Chief Justice LAW, Justices B.A. SMITH and PATTERSON.

OPINION

BEA ANN SMITH, Justice.

This case involves a post-answer default judgment in a child-custody dispute and requires us to determine the proper standard under which to review a motion for new trial in such a case. The child's mother, Jennifer Perry, and intervenor, the Comanche Nation, appeal a final order modifying conservatorship of the child between Perry and the child's paternal grandparents, Joseph and Patricia Fox. Perry and the Comanche Nation assert that the trial court abused its discretion in denying their respective motions for new trial after both defaulted by not appearing at the hearing on the Foxes' motion to modify the conservatorship. We will reverse the trial court's denial of both motions and remand for a new trial.

BACKGROUND

The child at the center of this dispute is the eleven-year-old daughter of Perry. Perry and the child's father, Gregory Alan Fox, were never married. About ten months after the child was born in 1992, Perry moved out of the house she shared with Gregory and left the child in his care. Gregory became the primary care-giver for the child, who lived with him until early 1995, when Gregory was killed in an automobile accident. Shortly thereafter Joseph and Patricia Fox, the child's paternal grandparents, filed a suit affecting the parent-child relationship (SAPCR), seeking to be appointed managing conservators of their grandchild. The Foxes were concerned about Perry's ability to parent the child because Perry had relinquished the care of the child to their son. The district court of Williamson County, Texas, initially entered a temporary order in early 1995 establishing a temporary joint managing conservatorship to be shared by Perry and the Foxes. The order also required Perry to undergo a psychological evaluation and attend parenting classes. A final order was issued about a year later establishing a joint managing conservatorship between Perry and the Foxes. Perry was made the primary joint managing conservator with the exclusive right to establish the child's legal domicile. Perry subsequently moved to Oklahoma with the child. Perry and the child are members of the Comanche Nation because of the ancestry of Perry's mother, Francetta Gentry.

In 2001, Ms. Gentry, as maternal grandmother, filed a petition for guardianship of the child in the Court of Indian Offenses for the Comanche Tribe in Anadarko, Oklahoma.¹ Ms. Gentry's motion alleged that Perry had abandoned and neglected the child and that the child had lived with Ms. Gentry and her husband for three years. Ms. Gentry did not name the Foxes as parties to her petition or notify them of the hearing. By chance, the Foxes found out about Ms. Gentry's petition and filed a motion to dismiss for lack of subject-matter jurisdiction, asserting that the district court of Williamson County is the court of original and exclusive continuing jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act. See Tex. Fam.Code Ann. §§ 152.201-.203 (West 2002). The Court of Indian Offenses considered Ms. Gentry's petition to be a motion to modify the terms of the 1996 order and entered an order dismissing the petition for lack of jurisdiction and remanding the custody of the child to the Foxes to exercise their right to summer visitation under the Williamson County order. The Foxes then filed a motion in Williamson County to modify the 1996 order, seeking sole managing conservatorship of the child and alleging that the child's safety and well-being were at risk under Perry's care due to her drug abuse, refusal to abide by the visitation schedule, and relinquishment of the care of the child to Ms. Gentry. The Foxes additionally sought an immediate temporary restraining order to prevent Perry and Ms. Gentry from making certain communications with the Foxes or the child and from committing certain acts, such as removing the child from Williamson County.

In July 2001, the county court at law² of Williamson County held a hearing on the Foxes' motion. Perry did not appear.³ After hearing the Foxes' evidence, the court issued a temporary order modifying the 1996 order by removing Perry as joint managing conservator and appointing her possessory conservator. Perry filed her answer to the original motion to modify in late July. About the same time, the Comanche Nation and Ms. Gentry filed motions to intervene in the child-custody proceeding. The Comanche Nation also filed a motion, under the Indian Child Welfare Act, to transfer jurisdiction over the child to the Comanche Tribal Children's Court for the Comanche Tribe of Oklahoma, located in Lawton, Oklahoma. See 25 U.S.C.A. § 1911 (West 2001) (in proceeding for foster care placement of, or termination of parental rights to, Indian child not domiciled or residing within reservation of Indian child's tribe, state court shall transfer such proceeding to jurisdiction of tribe, absent good cause to contrary, objection by either parent, or upon petition of either parent or Indian child's tribe).

In August 2002, the county court at law placed the case on the dismissal docket and sent notice of this fact to the Foxes, Perry, Ms. Gentry, and the Comanche Nation. The notice stated that anyone wanting to retain the case on the docket and obtain a trial setting would have to appear at the court on September 26. The Foxes filed a motion to retain the case, and their attorney appeared on September 26. Neither Perry, the Comanche Nation, nor Ms. Gentry filed a motion or appeared. The court granted the Foxes' motion to retain and scheduled the case for a hearing on November 25, 2002. Notice of the hearing was sent to Perry and the Comanche Nation by return-receipt mail.

Only the Foxes appeared at the November 25 hearing. The Foxes' attorney did not put on any additional evidence but referred the court to the previous temporary restraining order hearing. The court granted the Foxes' motion to modify, retaining the terms of the temporary conservatorship order: the Foxes became the child's managing conservators, and Perry became the child's possessory conservator, with her access and possession of the child subject to supervision and arrangement by the Foxes. Perry and the Comanche Nation filed motions for new trial. The court held a hearing on the motions for new trial. The Comanche Nation's attorney and the Foxes' attorney were present. Perry was also present but did not speak or put on evidence. The Comanche Nation argued that its motion should be granted because it had met the Craddock elements. See Craddock v. Sunshine Bus. Lines, 134 Tex. 388, 133 S.W.2d 124, 126 (1939). Perry's motion made a substantially similar argument. At the end of the hearing, the court denied Perry's and the Comanche Nation's motions. Perry and the Comanche Nation appeal to this Court.

DISCUSSION

Standard of review

We review a ruling on a motion for new trial under an abuse of discretion standard. Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex.1987); Smith v. Holmes, 53 S.W.3d 815 (Tex.App.-Austin 2001, no pet.). An abuse of discretion occurs when a trial court fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992). Here, we must determine whether the trial court correctly applied the Craddock test.

The Craddock test

A trial court's ruling on a motion for new trial directed against a default judgment must be guided by a three-prong test. See Craddock, 133 S.W.2d at 126. A court must grant the motion if it determines that (1) the defendant's failure to answer before judgment was not intentional or the result of conscious indifference on the defendant's part, but was due to a mistake or accident; (2) the motion for new trial sets up a meritorious defense; and (3) the motion is filed at a time when its granting would not result in a delay or otherwise injure the plaintiff. Id. The Craddock test also applies to a post-answer default judgment entered when a defendant fails to appear at a trial setting. Director, State Employees Workers' Compensation Div. v. Evans, 889 S.W.2d 266 (Tex.1994); Elite Towing, Inc. v. LSI Financial Group, 985 S.W.2d 635 (Tex.App.-Austin 1999, no pet.).

Texas appellate courts have routinely applied the Craddock test to SAPCRs. See, e.g., In re R.H., 75 S.W.3d 126, 130 (Tex.App.-San Antonio 2002, no pet.); In re A.P.P., 74 S.W.3d 570, 573 (Tex.App.-Corpus Christi 2002, no pet.); Lowe v. Lowe, 971 S.W.2d 720 (Tex.App.-Houston [14th Dist.] 1998, pet. denied). However, the Fourteenth Court of Appeals has criticized the applicability of the Craddock test to SAPCRs because of the difficulty of fitting the "best interest of the child" into the second prong of a meritorious defense; yet, in the absence of any other direction from the supreme court, that court has continued to apply Craddock. See Lowe, 971 S.W.2d at 725-726 ("[T]he meritorious defense prong does not lend itself to being applied to custody cases" because "[u]nlike other suits, where clear defenses and claims exist, in family law, we have only factors to be considered by the court in determining best interest."). Other courts have held that in SAPCRs, a motion for new trial should be evaluated liberally. See Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex.App.-San Antonio 1987, no writ) ("Courts should exercise liberality in favor of a defaulted party ... in passing on a motion for new trial ... particularly [in] suits affecting the parent-child relationship. The...