In the Interest of K.A.C.O., No. 14-07-00311-CV (Tex. App. 3/3/2009)
| Decision Date | 03 March 2009 |
| Docket Number | No. 14-07-00311-CV.,14-07-00311-CV. |
| Court | Texas Court of Appeals |
| Parties | IN THE INTEREST OF K.A.C.O & J.C.C.O. |
On Appeal from the 245th District Court, Harris County, Texas, Trial Court Cause No. 2003-07057.
Reversed and Remanded.
Panel consists of Justices YATES, SEYMORE, and BOYCE.
This case involves a post-answer default judgment and related rulings in a suit affecting the parent-child relationship (SAPCR). In seven issues, appellant Patrick J. Combe-Ovadia contends the trial court abused its discretion by (1) failing to set aside the default judgment entered against him and in favor of Amarit Gonzalez; (2) striking his amended pleadings and jury demand; (3) modifying his periods of possession of his two minor children; (4) issuing permanent injunctions; (5) determining a risk of international child abduction existed and issuing related precautionary orders; and (6) awarding attorney's fees and conditioning his right of appeal. We reverse and remand for a new trial.
On July 20, 2004, Patrick and Amarit were divorced and appointed joint managing conservators of their two minor children, K.A.C.O. and J.C.C.O. The divorce decree designated Amarit as the primary joint managing conservator with the exclusive right to establish the children's domicile and legal residence.
On June 7, 2005, Amarit filed a petition to modify the parent-child relationship. In her petition, she alleged that Patrick, who has dual American and French citizenship, exhibited behavior demonstrating a high risk of international abduction and requested that the court enter temporary orders for the children's safety and welfare. Patrick filed an answer. The trial court issued a scheduling order setting the case for trial on July 10, 2006, at 10:00 a.m.
On June 27, 2006, Amarit filed her second amended petition seeking appointment as sole managing conservator and modification of the parents' possessory rights and access to the children. Due to a vacation letter filed by Patrick's counsel, the parties agreed to re-set the trial date. Amarit's trial counsel filed a notice of trial setting advising the parties that the trial had been re-set to November 13, 2006, at 10:00 a.m.
On October 12, 2006, Patrick filed a jury demand. On October 25, 2006, he filed a counter-petition to modify the parent-child relationship in which he requested appointment as primary joint managing conservator as well as other modifications. Amarit filed a motion to strike Patrick's jury request. Due to a death in her family, Patrick's counsel filed a motion for continuance of the trial setting. On November 9, 2006, the associate judge conducted a hearing at which he granted the motions to strike Patrick's jury demand and for continuance. The trial was re-set for December 11, 2006.
On November 10, 2006, Patrick filed his first amended counter-petition in which he added a jury demand and a request for mediation. Amarit was not served with the amended petition until November 28, 2006. On November 13, 2006, Patrick filed a notice of appeal from the associate judge's ruling striking his jury request. Following a hearing, the presiding judge placed the case on the court's jury docket. On December 1, 2006, Amarit filed a motion to strike Patrick's amended counter-petition.
On December 5, 2006, at 8:00 a.m., a pre-trial conference was held. Due to car trouble, Patrick's counsel failed to appear and her attempts to notify the court of her delay were unsuccessful. At the conference, Amarit re-urged her motion to strike Patrick's jury request and requested that the court strike Patrick's amended counter-petition. The trial court granted both motions in orders signed on December 11, 2006.
A bench trial was held at 8:00 a.m. on December 11, 2006. Patrick and his counsel were not present. Patrick arrived at 8:40 a.m., but trial was already concluding. At the conclusion of trial, the court announced a default judgment (1) granting Amarit's request to maintain the children's American and French passports; (2) prohibiting international travel with the children without first obtaining court approval; (3) finding a risk of international abduction and granting related injunctions; (4) issuing a standard possession order; (5) awarding attorney's fees to Amarit's counsel; and (6) ordering Patrick to deposit $ 10,000.00 to be held in trust for Amarit's attorneys in the event he filed an appeal. Entry of judgment was set for December 15, 2006.
On December 13, 2006, Patrick filed a motion to vacate and set aside the default judgment and to reinstate the case on the jury docket for a new trial. On December 15, 2006, the court held a hearing at which it denied Patrick's motion and signed the final default judgment order.
The issues in this case are subject to review under an abuse of discretion standard. See Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006) (); Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex. 1996) (); State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994) (); Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987) (). To determine whether a trial court abused its discretion, we must decide whether it acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Swaab v. Swaab, No. 14-06-00593-CV, ___ S.W.3d ___, 2008 WL 1838023, at *3 (Tex. App.-Houston [14th Dist.] Apr. 24, 2008, no pet.).
In his first issue, Patrick contends the trial court abused its discretion in failing to set aside the final default judgment entered against him. He argues that the trial court erred in denying his motion for new trial because he had no notice of the time the trial was set to begin.
The seminal case setting forth the elements of proof a defaulting party must show to obtain a new trial following default judgment is Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Tex. 1939). See also Estate of Pollack v. McMurrey, 858 S.W.2d 388, 390 (1993); Lowe v. Lowe, 971 S.W.2d 720, 723 (Tex. App.-Houston [14th Dist.] 1998, pet. denied). Although Craddock was a no-answer default judgment, the Texas Supreme Court has held that it applies equally to post-answer default judgments. See Lowe, 971 S.W.2d at 723 (citing LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989) (per curiam)). Under the Craddock test, a default judgment should be set aside and a new trial ordered when the defaulting defendant (1) shows that the failure to appear was not intentional or the result of conscious indifference, but was due to an accident or mistake; (2) sets up a meritorious defense; and (3) shows that a new trial would cause neither delay nor work an injury to the plaintiff. Craddock, 134 Tex. at 393, 133 S.W.2d at 126.
This court has expressed hesitance about applying the Craddock test to SAPCRs. See Martinez v. Martinez, 157 S.W.3d 467, 469-70 Tex. App.-Houston [14th Dist.] 2004, no pet.) ("Although the Craddock test has been routinely applied to suits affecting the parent-child relationship (SAPCRs) by appellate courts in Texas, this court has previously noted its discomfort in doing so ....") (citation omitted); Lowe, 971 S.W.2d at 725 ().1 Further, we are not the only court to question the appropriateness of using the Craddock test for SAPCRs. See, e.g., Rhamey v. Fielder, 203 S.W.3d 24, 29 (Tex. App.-San Antonio 2006, no pet.) (urging Texas Supreme Court to reconsider whether Craddock is appropriate standard in context of SAPCR); Comanche Nation v. Fox, 128 S.W.3d 745, 750 (Tex. App.-Austin 2004, no pet.) ("Craddock does not fit well into the context of a consideration of the best interests of the child."); In re A.P.P., 74 S.W.3d 570, 575 (Tex. App.-Corpus Christi 2002, no pet.) ( second prong of Craddock test difficult to apply in SAPCR where primary issue before court is child's best interest); see also Dorrough v. Cantwell, No. 2-05-208-CV, 2006 WL 2034016, at * 6 (Tex. App.-Fort Worth July 20, 2006, pet. denied) ( per curiam) () ( reluctance of other courts in applying Craddock test in SAPCRs given overriding consideration of best interest of child). However, absent contrary guidance from the supreme court, we remain bound to apply Craddock, albeit liberally. See Martinez, 157 S.W.3d at 470; Comanche, 128 S.W.3d at 750.
Under the first prong of the Craddock test, the trial court was required to determine whether Patrick's failure to appear at trial was either intentional or the result of conscious indifference on his part. See Craddock, 133 S.W.2d at 126; Martinez, 157 S.W.3d at 470. In making this determination, a court must look to the knowledge and acts of the defendant. See Martinez, 157 S.W.3d at 470. If a defendant's factual assertions are not controverted by the plaintiff, the defendant satisfies his burden if he has set forth facts which, if true, negate a finding of intentional or conscious indifference. See Dir., State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 269 (Tex. 1994). The court reviews the entire record in determining whether the defaulting party's assertions are controverted. Id.
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