Tresselt v. Tresselt

• Decision Date: 31 January 1978
• Docket Number: No. 1226,1226
• Citation: 561 S.W.2d 626
• Parties: Nancy Mae TRESSELT, Appellant, v. Ernest Frederick TRESSELT, Appellee.
• Court: Texas Court of Appeals

Page 626

561 S.W.2d 626

Nancy Mae TRESSELT, Appellant,

v. Ernest Frederick TRESSELT, Appellee.

No. 1226.

Court of Civil Appeals of Texas, Corpus Christi.

Jan. 31, 1978.

Rehearing Denied Feb. 23, 1978.

Daniel E. Hayes, Bay City, for appellant.

Robin D. Orr, Orr & Hamlin, Bay City, for appellee.

OPINION

YOUNG, Justice.

This appeal arose from a suit originally filed on August 22, 1975, by Nancy Mae Tresselt seeking, among other things, a divorce from Ernest Frederick Tresselt. Thereafter, Mr. Tresselt filed a cross-petition, also seeking a divorce. Each party answered the other party's petition. On October 22, 1976, the matter came on for trial before the court without a jury. Mrs. Tresselt did not appear personally or by attorney, and the case was tried in her absence. On January 24, 1977, the trial court signed the judgment granting Mr. Tresselt a divorce, dividing the property, deciding conservatorship of the children, and providing for child support payments.

Mrs. Tresselt thereafter timely filed her motion for new trial. After a hearing the trial court overruled the motion. Alleging that she was not given adequate notice of the trial held on October 22, 1976, Mrs. Tresselt appeals. We affirm.

In her motion to set aside the trial court's default judgment and secure a new trial, we note that Mrs. Tresselt has not complied with the applicable rule stated in Ivy v. Carrell, 407 S.W.2d 212 (Tex.Sup.1966), as follows:

"A default judgment should be set aside and a new trial ordered in any case in which the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an accident; provided the motion for a new trial sets up a meritorious defense and is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff."

In Ivy, the Supreme Court said that the rule is also applicable to default judgments entered on failure of the defendant (cross-respondent here) or his counsel to appear for trial (after answer). Here the appellant failed to "set up" a meritorious defense in her motion for new trial by factual allegations as required in Ivy. For this reason alone it would have been proper for the trial court to have overruled appellant's motion for new trial.

The appellant here proceeded, however, on her motion for new trial more like the appellants did in Sandoval v. Rattikin, 395 S.W.2d 889 (Tex.Civ.App. Corpus Christi 1965, writ ref'd. n. r. e., writ den., 385 U.S. 901, 87 S.Ct. 199, 17 L.Ed.2d 132). Here, as in Sandoval, the appellant sought and the trial court conducted a complete and thorough evidentiary hearing on appellant's motion for new trial.

Another applicable rule by which we will be guided here was pointed out in Sandoval and is as follows:

"On appeal from an order overruling the motion for new trial the appellate court will take the most favorable view of the evidence that the trial court was authorized to take. The order overruling the motion for new trial amounts to an implied finding adverse to the allegations in the motion and the reviewing court will assume that the trial court found adversely as to all material facts alleged by the complainant . . ."

In that regard, the following is a fair summary of the evidence adduced at the hearing on the motion for new trial. Trial was originally set for February 17, 1976. The trial was postponed, however, and the parties thereafter reconciled.

On June 3, 1976, the parties again separated and began negotiations for a divorce. Several meetings were held in the Matagorda County courthouse during July and August of 1976, but no agreement was reached. The evidence also indicates that there were several trial dates set, but that appellant sought and received a postponement of each trial setting. At a meeting of the parties and their attorneys near the end of August, 1976, a trial date for the week of September 27, 1976, was agreed to. The record further indicates that appellant was instructing her attorney, Ms. Lucille Claybourne, to delay the trial as long as possible; that Ms. Claybourne could not obtain reasonable cooperation from appellant; and that therefore Ms. Claybourne was permitted to withdraw from the case by order dated September 20, 1976. On September 21, 1976, Mr. Oren Hamlin, attorney for appellee, wrote to appellant and to Ms. Claybourne reminding them of the trial setting for the week of September 27.

Ms. Claybourne continued to represent appellant as evidenced by her appearance with the appellant in the district court on September 27, 1976. On this day, the parties met with the trial judge. In appellant's presence, Ms. Claybourne sought a postponement from the trial judge, who agreed to "put off the case until the next time." The parties agreed in open court that divorce day fell on the fourth Friday of each month, which in the instant case would have been the 22nd of the next month, October. Mr. Hamlin then informed appellant and Ms. Claybourne that the case would be set for the week of October 18, 1976. Ms. Claybourne then fully withdrew from the case after advising appellant to retain counsel.

Whereupon appellant contacted another attorney, Mr. Perry Young, in connection with the matter. But she did not retain him as counsel. Sometime between October 4 and October 8, Mr. Hamlin talked on the phone with Mr. Young about the divorce while appellant was in Mr. Young's office. Hamlin told Young that he expected to go to trial on the divorce. On or about October 18, 1976, appellee, Mr. Tresselt, talked with appellant and told her that the trial would be on October 22. Furthermore, Mr. Hamlin wrote a letter to Mr. Young, to appellant and to the District Clerk informing them that the trial would be held on October 22.

At approximately 4:00 a. m., October 22, appellant, who had yet failed to retain new counsel, first saw the letter to her from Hamlin concerning the setting for that day. After reading it, instead of making an appearance, she boarded a bus for Wharton, Texas. As we have mentioned, the matter proceeded to trial that day in her absence.

All of which brings us back to the appellant's specific complaint in her point of error; i. e., that she was not given...