Matter of the Marriage of Parker

• Decision Date: 30 May 2000
• Docket Number: No. 06-99-00111-CV,06-99-00111-CV
• Citation: 20 S.W.3d 812
• Parties: (Tex.App.-Texarkana 2000) IN THE MATTER OF THE MARRIAGE OF BRENDA MAY PARKER AND MARK PATRICK PARKER, SR. Date Submitted:
• Court: Texas Court of Appeals

Page 812

20 S.W.3d 812 (Tex.App.-Texarkana 2000)

IN THE MATTER OF THE MARRIAGE OF BRENDA MAY PARKER AND MARK PATRICK PARKER, SR.

No. 06-99-00111-CV

In The Court of Appeals, Sixth Appellate District of Texas

at Texarkana

Date Submitted: May 30, 2000

Date Decided: May 31, 2000

On Appeal from the 202nd Judicial District Court, Bowie County, Texas, Trial Court No. 99-D-210-202

Reversed and remanded.

[Copyrighted Material Omitted]

Before Cornelius, C.J., Grant and Ross, JJ.

O P I N I O N

Opinion by Justice Ross

Mark Patrick Parker, Sr. appeals from the trial court's judgment granting Brenda May Parker's petition for divorce. Mark files his appeal pro se and in forma pauperis.

Mark filed an answer to his wife's petition and requested a jury trial. The trial court held a bench trial at which Mark did not appear, but at which Brenda put on evidence supporting her case. The trial court granted the divorce and awarded each party the personal property in that party's possession or under that party's sole control, with the exception of the motor vehicle in Brenda's possession which the court awarded to both Brenda and Mark.

Mark filed a request for findings of fact and conclusions of law, and a motion for new trial. The trial court filed its findings of fact and conclusions of law. One "finding of fact" made by the court was that:

[A] fair division of the property [the parties] possessed would be to award to each the property which they had in their possession or under their control as of the date of the divorce, the only exception being the motor vehicle in the possession of the Petition [sic], BRENDA MAY PARKER, which was awarded to the Respondent, MARK PATRICK PARKER, SR.

Mark filed a request for additional or amended findings in which he challenged the court's findings. The trial court did not respond, and Mark filed his notice of appeal.

The disparity between the award of property in the court's decree and the "finding" made in the court's findings of fact is not an issue in this appeal.¹ Mark's complaint is that he was not given proper notice of the trial setting in accordance with Tex. R. Civ. P. 245. That rule states, in part:

The court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; . . . .

Mark admits that he received notice from Brenda's attorney fourteen days before trial, but contends that he sent a letter to the court administrator requesting clarification of the actual trial setting. He contends that the court administrator did not respond to his letter. Brenda did not file a brief in this Court.

The trial court entered a post-answer default judgment. A post-answer default judgment occurs when the defendant files an answer but fails to appear for trial. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). It is not an abandonment of the defendant's answer nor an implied confession of any issues joined by the defendant's answer. Id. A court cannot enter judgment on the pleadings; rather, the plaintiff must offer evidence and prove his or her case. Id.

Mark contends that the trial court erred in entering judgment when he was not afforded proper notice of the trial setting. Initially, we must determine whether his complaint has been properly preserved for our review.

In order to preserve error on a complaint on which evidence must be heard, such as the failure to set aside a default judgment, a party must file a motion for new trial. Tex. R. Civ. P. 324(b)(1).

In a civil case, the overruling by operation of law of a motion for new trial . . . preserves for appellate review a complaint properly made in the motion, unless taking evidence was necessary to properly present the complaint in the trial court.

Tex. R. App. P. 33.1(b).

If taking evidence was necessary, the motion must have been presented to the trial court for a ruling. Cecil v. Smith, 804 S.W.2d 509, 511 n.5 (Tex. 1991); see also Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex. App.-Houston [14th Dist.] 1998, no pet.); Garcia v. Arbor Green Owners Ass'n, 838 S.W.2d 800, 802 (Tex. App.-Houston [1st Dist.] 1992, writ denied); Fluty v. Simmons Co., 835 S.W.2d 664, 666-67 (Tex. App.-Dallas 1992, no writ); Cocke v. Saks, 776 S.W.2d 788, 789-90 (Tex. App.Corpus Christi 1989, writ denied); Shamrock Roofing Supply, Inc. v. Mercantile Nat'l Bank at Dallas, 703 S.W.2d 356, 357-58 (Tex. App.-Dallas 1985, no writ). The rationale for this approach is to give the trial court an opportunity to review the evidence and make a ruling.

Arguably, however, this is not a typical default judgment case. In most default judgment cases, the issue is whether the defendant failed to answer or appear intentionally or as the result of conscious indifference, or whether the defendant has set up a meritorious defense. See Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939). These are questions on which evidence must generally be heard.² Estate of Pollack v. McMurrey, 858 S.W.2d 388, 391-92 (Tex. 1993); Strackbein v. Prewitt, 671 S.W.2d 37, 38-39 (Tex. 1984).

In this case, Mark filed a motion for new trial in which he complained about the lack of proper notice. The question is whether addressing this complaint would require the trial court to hear evidence. If so, then we must determine whether Mark preserved error by presenting his motion for new trial to the trial court for a ruling.

Notice of a trial setting does not always appear in the clerk's record and need not affirmatively appear in the record as a whole. Garcia, 838 S.W.2d at 803; Prihoda v. Marek, 797 S.W.2d 170, 171 (Tex. App.Corpus Christi 1990, writ denied). The law presumes a trial court hears a case only after proper notice to the parties. Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.-Houston [1st Dist.] 1997, writ denied); Alexander v. Russell, 682 S.W.2d 370, 375 (Tex. App.El Paso 1984), rev'd on other grounds, 699 S.W.2d 209 (Tex. 1985); Williams v. Holley, 653 S.W.2d 639, 641 (Tex. App.Waco 1983, writ ref'd n.r.e.). A recitation of due notice of the trial setting in the judgment constitutes some, but not conclusive, evidence that proper notice was given. Osborn, 961 S.W.2d at 411. If a judgment recitation is effectively rebutted by other evidence in the record, this presumption of proper notice is no longer taken to be true. Id.

In this case, there was some evidence on the face of the record that Mark did not receive proper notice of trial. Brenda's attorney stated on the record that he had mailed notice to Mark nineteen days before trial. In a letter to the court administrator dated fourteen days before trial, Mark requested clarification of the actual trial setting, if any, and complained about not having received proper notice. Therefore, because taking evidence was not necessary, Mark need not have presented any other evidence to support the contention of insufficient notice in his motion for new trial.

Mark's appeal can also be regarded as a challenge to the factual sufficiency of the evidence supporting the trial court's judgment. In his motion for new trial, which he filed concurrently with a notice of past due findings of fact, Mark complained that the trial court proceeded to judgment without ensuring that he had proper notice of the trial setting. When the trial court filed its findings of fact, it specifically found that Mark was "duly notified of the trial setting." Mark then filed a request for amended findings of fact in which he specifically challenged the court's finding. A challenge to the factual sufficiency of the evidence in a bench trial need not be preserved by a motion for new trial. Tex. R. Civ. P. 324(a),(b); see also Vannerson v. Vannerson, 857 S.W.2d 659, 677 n.8 (Tex. App.Houston [1st Dist.] 1993, writ denied).

Whether it be because there was evidence on the face of the record to rebut the presumption of sufficient notice, or because Mark's contention presents a challenge to the factual sufficiency of the trial court's finding, we find that Mark's complaint is properly preserved for our review.

We now turn to the merits of Mark's appeal. In Craddock, 133 S.W.2d 124, the Texas Supreme Court outlined a three-part test for determining whether a default judgment should be set aside and a new trial ordered. Under Craddock, a default judgment should be set aside and a new trial ordered where (1) the failure leading to default was not intentional or the result of conscious indifference, but was due to mistake or accident; (2) the defendant has set up a meritorious defense to the plaintiff's claim; and (3) granting a new trial will not cause delay or otherwise work injury to the plaintiff. Id. at 126. These requirements apply to a post-answer default judgment as well as to other types of default judgments. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966).

In Lopez v. Lopez, 757 S.W.2d 721, 722 (Tex. 1988), the Texas Supreme Court held that when a defendant did not receive actual or constructive notice of trial, due process prevents application of the second prong of the Craddock test. The court in that case did not discuss the application of the third prong of the Craddock test.

Even after Lopez, reviewing courts have approached the application of the Craddock test differently when notice was the issue. Some courts have not applied the Craddock test at all. Instead, these courts simply analyzed whether the party received notice. See Platt v. Platt, 991 S.W.2d 481, 483-84 (Tex. App.-Tyler 1999, no pet.); Bradford v. Bradford, 971 S.W.2d 595, 597-98 (Tex. App.-Dallas 1998, no pet.); Turner v. Ward, 910 S.W.2d 500, 504-05 (Tex. App.-El Paso 1994, no writ); Hanners v. State Bar of Texas, 860 S.W.2d 903, 907-08 (Tex. App.-Dallas 1993, no writ).

Other courts have conducted a Craddock analysis, but also have separately determined whether the party received notice. See ...