In re Marriage of Runberg

• Decision Date: 12 January 2005
• Docket Number: No. 07,07
• Citation: 159 S.W.3d 194
• Parties: In the Matter of the MARRIAGE OF Lisa Ann RUNBERG and Doak Tim Runberg and in the Interest of S.F.R., M.D.R., J.L.R., J.G.R. and Z.G.R., Children.
• Court: Texas Court of Appeals

159 S.W.3d 194

In the Matter of the MARRIAGE OF Lisa Ann RUNBERG and Doak Tim Runberg and in the Interest of S.F.R., M.D.R., J.L.R., J.G.R. and Z.G.R., Children.

No. 07-03-0382-CV.

Court of Appeals of Texas, Amarillo.

January 12, 2005.

David E. Moody, Lubbock, for Appellant.

Douglas R. Woodburn, Woodburn, Watkins & Jackson, L.L.P., Amarillo, for Appellee.

Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.

OPINION

PHIL JOHNSON, Chief Justice.

Doak Tim Runberg challenges a default judgment of divorce. He contends that the trial court abused its discretion in overruling his motion for new trial because he had appeared in the case, but was given no notice of the setting for final hearing. We reverse and remand.

BACKGROUND

On March 20, 2003, Lisa Ann Runberg filed suit in the 47th District Court of Randall County for divorce from appellant Doak Tim Runberg. On March 22nd, Doak was served with citation and with a temporary restraining order which had been granted by a visiting judge. The restraining order, among other matters, commanded Doak to appear before Judge James W. Anderson on March 26th, to show cause why temporary relief should not be granted. Judge Anderson was sitting for the regular judge of the 47th District Court.

Lisa, her attorney, and Doak, acting pro se, were in court before Judge Anderson on March 26th. The temporary orders signed by Judge Anderson following the hearing recited that (1) Doak appeared in person and announced ready, (2) "[t]he parties have agreed to the terms of this order," and (3) the Court examined the record, the agreement of the parties and heard evidence. The thirty-page written order delineated (1) rights and duties of Lisa and Doak as conservators of the children of the marriage; (2) provisions for visitation with their children; (3) Doak's obligations to pay child support of $2,500 per month, provide insurance and health care for the children, pay spousal support of $500 per month, prepare and file income tax returns, timely pay specified debts; and (4) the date by which Doak had to move out of the home of the parties. The orders contained three and one-half pages of detailed injunctive provisions directed to Doak and a statement that Lisa and Doak waived issuance and service of the writ of injunction by stipulation.

As of May 22, 2003, the clerk's record reflected no further proceedings in the suit. Doak's appearance day had passed and he had not filed an answer. See Tex.R. Civ. P. 237.¹ Without notice to Doak, a final hearing on Lisa's petition for divorce was held on May 22nd and a default decree of divorce was signed that day. See TRCP 239.

Doak filed a written answer on June 6th. On June 20th, he filed a pleading entitled Respondent's Motion for New Trial and Motion to Vacate All Court Judgments and Orders From and After May 22, 2003. Several documents were attached to the pleading, including an affidavit by Doak in which he denied any prior notice of the final hearing. The affidavit did not (1) offer a reason for Doak's failure to file an answer to the suit before the default judgment was granted, (2) urge any manner of defense to the suit, or (3) offer any method of preventing harm to Lisa if a new trial were to be granted. Also attached to Doak's pleading were a copy of a letter dated May 13, 2003 from Doak's attorney to Lisa's attorney indicating that Doak had retained counsel, and a statement of facts from the final hearing. The statement of facts from the May 22nd final hearing contained testimony by Lisa in which she asked the judge to set child support at $2,500 per month, which was the same amount of support set to be paid as temporary child support "... after a hearing in which Mr. Runberg appeared." Lisa did not file a response to Doak's pleading.

By order dated June 26, 2003, the regular judge of the 47th District Court denied Doak's motion for new trial without a hearing. A hearing on Doak's Motion to Vacate the Court's Judgments and Orders after May 22, 2003, was held on July 16th. That motion was denied, but Doak makes no complaint about the ruling, and we will not address that ruling.²

By one issue, Doak asserts that the trial court abused its discretion in failing to grant his motion for a new trial.³ Citing LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390 (Tex.1989), Doak maintains that, because he had "appeared" in the case, his due process rights under the Fourteenth Amendment to the United States Constitution were violated when the default judgment hearing was held without notice to him and he was entitled to have the default decree set aside. He references Bryant v. Gamblin, 829 S.W.2d 228 (Tex.App.-Eastland 1991, writ denied) as authority for the position that, under the circumstances, his motion for new trial did not need to comply with the mandates of Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). In the alternative, he asserts that if Craddock applies, he was required to show only that his failure to appear at the final hearing was not intentional or the result of conscious indifference. He cites Lopez v. Lopez, 757 S.W.2d 721 (Tex.1988) and In re Marriage of Parker, 20 S.W.3d 812 (Tex.App.-Texarkana 2000, no pet.) as support for his alternative position.

Lisa disagrees, presenting three arguments. First, she references Brown v. Brown, 521 S.W.2d 730 (Tex.App.-Houston [14th Dist.] 1975, no writ), as support for the trial court's granting of judgment and denial of new trial. Next, she argues that Doak had not "appeared" in the suit and his due process rights under the Fourteenth Amendment were not violated. Finally, she maintains that the trial court did not err in denying a new trial because Doak failed to support his motion for new trial with evidence fulfilling requirements set out by Craddock.

STANDARD OF REVIEW

The trial court's denial of a motion for new trial is reviewed for abuse of discretion. Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex.1984). A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to guiding rules and principles. See Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex.1997). Likewise, a trial court abuses its discretion if it declines to exercise a power of discretion vested in it by law when the circumstances require that the power be exercised; or if it arrives at its choice in violation of an applicable legal rule, principle, or criterion. See Koch v. Koch, 27 S.W.3d 93, 95 (Tex.App.-San Antonio 2000, no pet.); Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 939-40 (Tex.App.-Austin 1987, no writ).

A trial court does not abuse its discretion in denying a motion for new trial when the granting of a new trial is dependent on questions of fact to be decided by the trial court, unless the evidence presented conclusively establishes factual bases mandating the granting of a new trial. See Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 372 (Tex.2000).

ANALYSIS

In LBL Oil Co., 777 S.W.2d 390, the defendant filed a written motion to dismiss for lack of personal jurisdiction. The motion to dismiss was denied. A written answer was not filed and default judgment was taken without notice to the defendant. The defendant appealed by writ of error. In reversing the default judgment, the Texas Supreme Court said simply that once a defendant has made an appearance in a cause, the defendant is entitled to notice of a trial setting as a matter of due process under the Fourteenth Amendment. Id. at 390-91. The Supreme Court did not consider the defendant's written challenge to the trial court's jurisdiction to be a written answer within the contemplation of the rules of civil procedure, see TRCP 46 (every petition and answer shall be contained in one instrument of writing) and TRCP 85 (original answer may consist of pleas to the jurisdiction or other dilatory pleas), because the Court specifically referred to the appeal as involving "a post-appearance default judgment case," as opposed to a post-answer default judgment case. See LBL Oil Co., 777 S.W.2d at 390.

Lisa contends that we should not follow LBL Oil Co., but, rather, follow Brown, 521 S.W.2d 730. In Brown, the respondent husband was served with citation and appeared with counsel at a show-cause hearing, although he did not file any written document which could be considered as a pleading. Judgment of divorce was subsequently entered without notice to the husband, and husband appealed. The court of appeals held that even though the husband appeared in the suit, absent a written pleading, the case was uncontested and advance notice of the final hearing was not required by the rules of civil procedure or the local trial court rules. Id. at 732. The appellant in Brown, however, did not contend that his due process rights were violated, as Doak contends in the matter before us. Brown is inapposite.

Next, we consider whether Doak made an "appearance" in the divorce suit when he attended the hearing before Judge Anderson on March 26, 2003. In doing so, we note that if no written answer has been filed in the lawsuit, whether a party has "appeared" depends on the nature and quality of the party's activities in the case. See Bradford v. Bradford, 971 S.W.2d 595, 597 (Tex.App.-Dallas 1998, no pet.). The nature and quality of activities to be considered encompass the filing of written documents, see LBL Oil Co., 777 S.W.2d at 390, and personal activity. See Bradford, 971 S.W.2d at 598; Smith v. Amarillo Hosp. Dist., 672 S.W.2d 615, 617 (Tex.App.-Amarillo 1984, no writ).

Doak's affidavit, which was attached to his motion for new trial, did not address his appearance at or the degree of his participation in the March 26th hearing on temporary orders. However, the temporary orders and Lisa's testimony at the default hearing, which were before the trial court at the time Doak's uncontested motion for new trial was denied, showed that Doak attended court, announced "read...