In re R.K.P.

• Decision Date: 23 August 2013
• Docket Number: No. 08–11–00351–CV.,08–11–00351–CV.
• Parties: In the Interest of R.K.P., a child.
• Court: Texas Court of Appeals

417 S.W.3d 544

In the Interest of R.K.P., a child.

No. 08–11–00351–CV.

Court of Appeals of Texas,

El Paso.

Aug. 23, 2013.

Paul Belew, Decatur, TX, for Appellant.

Jennifer Hallman Wren, Decatur, TX, for Appellee.

Before McCLURE, C.J., RIVERA, and RODRIGUEZ, JJ.

OPINION

ANN CRAWFORD McCLURE, Chief Justice.

Lacy Parnell appeals from a default judgment in a suit affecting the parent-child relationship. At issue is the custody of her daughter. We decide today whether Parnell filed an answer, entered a general appearance, or wholly defaulted. Because we conclude she filed an answer, we reverse and remand for trial.

FACTUAL AND PROCEDURAL SUMMARY

Lacy Parnell and Gaston Blake Bounds were appointed joint managing conservators of their daughter by order dated July 27, 2009. On May 23, 2011, Bounds filed a petition to modify the parent-child relationship in which he sought to be named as “the person who has the right to designate the primary residence of the child.” He alleged that Parnell had a history of family violence and abused controlled substances. He asked that the court order supervised visitation with the exchange of possession to occur in a protective setting. He also requested that Parnell refrain from of consumption of alcohol or controlled substances within twelve hours before and during visitation, and that she attend and complete a battering intervention and prevention program. A hearing for temporary orders was set for 9:00 a.m. on June 6, 2011. Parnell was served on May 24th.

According to Parnell's affidavit attached to her motion for new trial, she entered University Behavioral Health of Denton on June 3rd. She informed Bounds that she would be unavailable to attend the hearing on the 6th. His mother, Johnna Bounds, picked up the child and promised to tell the court that Parnell was hospitalized. Parnell gave Ms. Bounds her patient identification number, her phone number and her address. She was later assured that this information had been provided to Bounds. Nevertheless, Parnell prepared a letter to the court advising of her hospitalization and her inability to attend the hearing on June 6th. The hospital staff agreed to fax the letter to the court, but the receiving fax was busy several times. The letter was eventually received by the court clerk, but the hearing had already been completed. In the letter, Parnell asked for a continuance and promised to be physically present at the courthouse on the day of her release from treatment. The docket sheet reflects that the letter was filed of record on June 9th at 1:35 p.m.

Temporary orders were entered appointing Bounds as temporary sole managing conservator, relief he had not yet requested. Parnell was appointed temporary possessory conservator. Visitation was not specified other than that Parnell would have possession and access at times and places as agreed by the parties and under the supervision of persons designated by Bounds. Alternatively, visitation would be scheduled and supervised by the Volunteers Advocating for Children at a minimum of two hours per week. These orders were signed on June 9 and filed with the district clerk at 1:35 p.m. At 1:37 p.m.-two minutes later-Bounds filed a first amended petition to modify in which he sought sole managing conservatorship. The clerk mailed the orders to Parnell on June 10th to the address then on file with the court. The envelope was returned as undeliverable because Parnell no longer lived there.

Parnell was released from the hospital on June 12th. She moved in with her father in Cleburne, Texas, and by the end of June, she had spoken with Bounds at least three or four times. She also provided the court with her new address. The docket sheet confirms this, reflecting that the court knew the Cleburne address and mailed the temporary orders there on June 14th. According to Parnell, she contacted Bounds attorney, Jennifer Wren, in early July. When asked whether a final hearing had been scheduled, Wren told Parnell that no hearing had been set. The record reflects a letter signed by Wren on June 23 confirming that a final hearing had been set for Monday, August 1st.

Parnell never received notice and did not appear at the hearing. Wren admitted that no notice was sent. In a scant four pages of testimony, Bounds asked the court (1) to make the temporary orders permanent, (2) to order Parnell to complete drug screening, (3) to order Parnell to pay child support of $227.72 per month; and (4) to change the child's surname from Parnell to Bounds.¹ The trial court grantedall relief requested and denied Parnell's motion for new trial. She had attached to the motion her affidavit, a copy of the letter to the court dated June 5th; and copies of two telephone text messages with Johnna Bounds dated June 3rd and June 13th. ² This appeal follows.

Parnell brings two issues for review. In Issue One, she alleges she is entitled to a new trial under the requirements of due process while in Issue Two, she contends she is entitled to a new trial because she has met the traditional elements set forth in the landmark case of Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939).

STANDARD OF REVIEW

A trial court's decision on a motion for new trial is reviewed for an abuse of discretion. Rivas v. Rivas, 320 S.W.3d 391, 393 (Tex.App.-El Paso 2010, no pet.); Munoz v. Rivera, 225 S.W.3d 23, 26 (Tex.App.-El Paso 2005, no pet.), citing Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex.1987); American Paging of Texas, Inc. v. El Paso Paging, Inc., 9 S.W.3d 237, 239 (Tex.App.-El Paso, 1999, pet. denied). A trial court must set aside a default judgment when the movant satisfies the requirements articulated in Craddock.Director, State Employees Workers' Compensation Division v. Evans, 889 S.W.2d 266, 268 (Tex.1994); Texas Sting, Ltd. v. RB. Foods, Inc., 82 S.W.3d 644, 650 (Tex.App.-San Antonio 2002, pet. denied). Craddock has been applied to post-answer defaults in which a defendant fails to appear for trial. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex.1966). Parnell must demonstrate that: (1) her failure to appear was not intentional or the result of conscious indifference; (2) she has a meritorious defense; and (3) the granting of a new trial will not operate to cause delay or injury. Evans, 889 S.W.2d at 268. Where the Craddock elements are satisfied, it is an abuse of discretion for the trial court to deny a motion for new trial. Evans, 889 S.W.2d at 268;Texas Sting, Ltd., 82 S.W.3d at 650.

Parnell bears the burden of proof to show that her failure to appear at trial was not the result of conscious indifference. Munoz, 225 S.W.3d at 28;Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d 615, 618 (Tex.App.-El Paso 1988, no writ). In determining whether her failure to appear was due to intentional disregard or conscious indifference, we must look to her knowledge and conduct. Evans, 889 S.W.2d at 269;Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex.1984). Conscious indifference has been defined as failing to take some action which would seem obvious to a person of reasonable sensibilities under the same circumstances. Id; Johnson v. Edmonds, 712 S.W.2d 651, 652 (Tex.App.-Fort Worth 1986, no writ). If the factual assertions in a movant's affidavit are not controverted, the movant satisfies her burden if her affidavit sets forth facts that, if true, negate intentional or consciously indifferent conduct. Evans, 889 S.W.2d at 269;Strackbein, 671 S.W.2d at 38–39. In determining if the factual assertions are controverted, the court looks to all the evidence in the record. Evans, 889 S.W.2d at 269.

CHARACTERIZATION OF THE JUNE 5th LETTER

Parnell wrote the following letter to the trial court the day before the hearing on temporary orders:

Sunday, June 5, 2011

To: Presiding Judge

From: Lacy Parnell (Respondent)

Re: Temporary Custody Hearing for daughter, (RK.P)

I, Lacy Kay Parnell, am the mother of (R.K.P). I am currently in University Behavioral Health, Denton, Texas (U.B.H.) (940–320–8100). My patient identification number is 24891.

I am in in-patient treatment as requested by Gaston Blake Bounds. Therefore, I cannot be physically present today, June 6, 2011 for the custody hearing of my daughter.

Because of this, I am requesting a continuance until I can be physically present once my treatment is completed within 7–10 days. Also, please be advised that I will be in contact and be physically present at the courthouse the day of my release from the treatment center.

Respectfully,

Lacy Parnell

The letter was accompanied by a facsimile cover sheet directed to the attention of the Wise County Court Clerk, bearing the letterhead of UBH, the telephone number of UBH, Cause No. CV–08–09–659, and the name and phone number of a contact person.

The Supreme Court has discussed three types of default judgments that contrast to “a judgment upon trial.” Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex.1979). The first is the traditional no-answer default. Second is the judgment nihil dicit, which occurs when a defendant has (1) entered some plea, usually of a dilatory nature, but one which does not place the merits of the plaintiff's case in issue; or (2) withdrawn his answer. Frymire Engineering Co. v. Grantham, 524 S.W.2d 680, 681 (Tex.1975) (per curiam). A no-answer default and a judgment nihil dicit are so similar that the same rules apply to each with respect to the effect and validity of the judgment. See Stoner, 578 S.W.2d at 682.

A judgment nihil dicit is proper when a party appears but has filed no answer on the merits. O'Quinn v. Tate, 187 S.W.2d 241, 245 (Tex.Civ.App.-Texarkana 1945, no writ). It is stronger than a no-answer default in that a judgment nihil dicit acts as a confession of judgment. Gomperts v. Wendeborn, 427 S.W.2d 904, 905 (Tex.Civ.App.-Austin 1968, no writ). These two types of judgments contrast with a post-answer default judgment, in which an answer is on file but the defendant fails to appear at trial. The...