Default Judgment in a Texas Divorce Case


When a spouse petitions for a Texas divorce, the other spouse must file an answer.  If the other spouse fails to do so, the court may render a default judgment.  Under certain circumstances, however, the other spouse may get the default judgment overturned.  In a recent case, a husband sought to overturn a default judgment entered against him.

According to the Texas Supreme Court’s opinion, the wife filed for divorce.  The trial court granted her motion for alternative service at the home of her husband’s mother.  The trial court ultimately entered a no-answer default judgment the following January.

The husband moved for a new trial.  He attached an affidavit stating he had resided at the same place in Mexico since he was deported in 2012.  He stated the wife visited him there on multiple occasions.  He stated he knew the wife wanted a divorce, and he did not object to a divorce or to the court ordering child support or visitation, but he did not know the wife sought the home in Fort Worth where his mother was living.  He claimed that he and his sister bought it before the marriage, and his mother provided the down payment and made all of the mortgage payments. His sister’s unsworn declaration stated they had purchased the home because of their mother’s credit.  The wife objected to the husband’s affidavit and his sister’s and mother’s unsworn declaration, arguing they were hearsay.  The trial court sustained the objection and denied the husband’s motion for a new trial.

Appellate Court Affirms Trial Court’s Denial on Different Grounds

The appeals court disagreed that the husband’s affidavit was hearsay; nonetheless, it affirmed the trial court’s denial of the husband’s motion for new trial, finding the husband failed to provide a translation for the certification of his affidavit, which rendered it inadmissible. The appeals court also found the unsworn declarations were conclusory and did not have factual support.  The appeals court found no error in the trial court’s exclusion of the affidavit and declarations and further found that the husband had not provided an excuse for failing to file an answer.

The husband petitioned for review by the Texas Supreme Court.

Overturning Default Judgments in Texas

Pursuant to Craddock v. Sunshine Bus Lines, Inc, a trial court must set aside a default judgment if: the defendant’s failure to answer was the result of a mistake or accident and not intentional or due to his conscious indifference, the defendant has a meritorious defense, and a new trial would not cause a delay or injure the other party.  The trial court must hear evidence if the moving party has alleged facts that would entitle him to a new trial and his motion presents a question of fact requiring evidence.  If the moving party’s affidavit is uncontroverted, the affidavit and motion merely have to provide factual information that negate intention or consciously indifferent conduct, if taken as true.  The trial court commits an abuse of discretion if it denies a motion for a new trial when the Craddock factors are met.

The moving party needs to show some reason for failing to file, but it does not have to necessarily be a good reason. A reasonable explanation will overcome the element of conscious indifference.  A mistake in the law leading to an intentional act can be reasonable.

The husband acknowledged knowing his wife wanted a divorce in his affidavit, but stated he did not receive a copy of the papers.  He also stated he was unaware the wife was seeking the home in Fort Worth.

Texas Supreme Court Finds Error at Trial-Court and Appellate Levels

The Texas Supreme Court noted that the uncontroverted factual allegations in a movant’s motion and affidavit are generally accepted as true, but the trial court sustained the wife’s hearsay objection.  The information in the husband’s affidavit was “clearly based on his personal knowledge. . .”  The trial court therefore erred when it found the affidavit was hearsay instead of accepting its uncontroverted factual allegations as true in deciding on the husband’s motion.

The appeals court also erred in affirming the trial court’s judgment based on the husband’s failure to provide a translation of the affidavit certificate.  The opposing party must object to such an error to allow an opportunity for correction.  The appeals court therefore erred because the wife had not objected and therefore not preserved the issue.

The Texas Supreme Court found the husband’s affidavit offered a reasonable explanation for his failure to file an answer.  He “mistakenly understood” his separate property would not be distributed in the divorce.  He stated he had not actually received a copy of the petition, but even if he had, he would not have known that the property he considered separate would be distributed.  The petition stated there would be a division of the community property.  The Texas Supreme Court found he “was reasonably unaware that his separate property would be affected,” and that his failure to answer resulted from that accident and mistake and not conscious indifference or an intentional act.

The Texas Supreme Court further noted that a failure to answer is not necessarily intentional or the result of conscious indifference under Craddock just because it was deliberate.  Craddock requires that the failure be without adequate justification, and the husband provided adequate justification.

The husband also showed a meritorious defense in his motion and affidavit.  He claimed the Fort Worth home was his separate property, and property acquired before marriage is generally separate. He stated he and his sister had bought the home before the marriage and their mother had paid for it. The wife did not contradict these assertions, so the lower courts should have taken them as true in deciding on the motion for a new trial.

The husband’s motion was filed timely.  The wife showed no evidence of harm.  The Texas Supreme Court further found that giving the husband a chance to prove ownership of the home would “not upset the underlying divorce, custody, support, or division of the community assets.”  There was therefore no evidence of undue delay or injury.

The Texas Supreme Court reversed and remanded the case to the trial court for additional proceedings.

Call McClure Law Group Today

Whether you are seeking a divorce or your spouse is, the advice and guidance of a skilled Texas divorce attorney can help you.  Schedule a consultation with McClure Law Group by calling 214.692.8200.

Contact Information