Sometimes, a spouse may fail to take appropriate action when their spouse has filed for divorce. If the spouse fails to participate in the proceedings, the petitioning spouse may seek a default divorce decree. Texas law disfavors default judgments, and in some cases, a default judgment may be set aside. The Texas Supreme Court of Texas recently considered a case in which the wife sought to set aside a default divorce decree.
The parties had been married for 13 years when the wife moved in with her parents due to alleged mistreatment by the husband. The husband petitioned for divorce and informed the wife that he had done so. The wife testified she did not have money for an attorney and did not know what to do. She said she thought she would be served in person. Her father said they waited for service of process.
According to the appeals court, there were multiple unsuccessful attempts of service over several months, and the trial court ultimately authorized alternative service. The papers were posted on the front door at the wife’s parents’ home, but she did not file a timely answer.
The husband moved for default judgment. The judge orally rendered the default judgment at the hearing. The wife was allegedly unaware of the hearing, but contacted an attorney because she said the husband told her he planned to take their child and dog. The wife’s attorney filed an answer and moved for a new trial pursuant to Craddock v. Sunshine Bus Lines, Inc., but the trial court still signed a default decree, however.
The trial court held an evidentiary hearing and found the wife had been consciously indifferent to filing an answer and failed to show that a new trial would not harm or injure the husband. The court denied her motion for a new trial, and the appeals court affirmed.
The appeals court determined the wife’s allegations did not negate her conscious indifference in failing to file an answer. The court pointed out the husband had informed her of the lawsuit and that someone was trying to serve her. Because the wife’s assertions regarding service and her awareness of the lawsuit were controverted, the trial court could have accepted the husband’s evidence instead.
A default judgment may be set aside if the party can meet the three elements of the Craddock test. First the party must show that their failure to answer was due to mistake or accident and was not intentional or the result of conscious indifference. Second, they must “set[] up a meritorious defense…” Finally, they must show that a new trial would not injure the plaintiff or result in delay. In re R.R.
Conscious Indifference
The first element is met if the defendant’s factual assertions are uncontroverted and negate intent or conscious indifference. R.R. Texas case law has held that the excuse for failing to file does not necessarily have to be a good excuse if it shows that the failure was not because the defendant did not care.
The Texas Supreme Court determined that the wife’s excuse in this case was sufficient to meet that standard. She testified that she thought she would be served in person. She also said she had not tried to avoid service and was not aware of any attempts by the process server to serve her. She filed her answer promptly after learning of the default and before the judge even signed the decree. She also stated she had not actually received the citation that had been posted on her parents’ door.
The wife’s father had testified there was construction work at the home on the day of the alternative service. He also testified the security officer at the gate should have informed him of any visitors, but he was not informed that there had been a process server. He also testified he did not see anything posted on the door and the construction workers did not give him any papers that had been posted.
The Texas Supreme Court held that, if true, the wife’s excuse would negate intent or conscious indifference. Previous case law has accepted excuses of not remembering being served or losing the papers.
The Texas Supreme Court distinguished between being aware of a lawsuit and being aware that one has been served with the citation. The Texas Supreme Court rejected the husband’s argument he had controverted the wife’s factual assertions with his evidence service had properly been executed. The process server testified about posting the notice on the door, but also testified she had not seen the wife. There was no evidence the wife actually received the citation that was posted on the door or that she was put on notice that it had been served.
Meritorious Defense
The second element requires the defendant to merely set up a meritorious defense. The defendant must only alleged facts that would constitute a defense and are supported by prima facie proof.
In this case, the wife asserted reimbursement claims for separate funds used to make the down payment on the parties’ home. She provided testimonial and documentary evidence supporting this claim. The husband argued she had not overcome the community property presumption. The Texas Supreme Court concluded, however that she did not have to meet that burden at this stage. She had set up a meritorious defense.
Delay or Injury
The wife alleged a new trial would not cause injury or undue delay. She indicated she was ready for trial. She also agreed to pay the reasonable costs the husband incurred in obtaining the default judgment. The Texas Supreme Court determined she had met her initial burden and the burden shifted to the husband. Although he alleged financial harm from managing the estate and selling the home and strain on the child, the Texas Supreme Court pointed out he had not described harm that would disadvantage him in a new trial.
The Texas Supreme Court concluded the wife met the Craddock elements, reversed the appeals court’s judgment, and remanded the case to the trial court.
Contact a Family Law Attorney
People facing divorce may sometimes fail to act out of uncertainty or fear. Although the wife in this case was successful in getting a new trial, that is not always possible. If you have reason to believe that your spouse is filing for divorce, you should contact a skilled Texas divorce attorney right away. Set up a consultation with McClure Law Group at 214.692.8200.