                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH

                                NO. 02-13-00052-CV


IN THE INTEREST OF P.J., JR., A
CHILD




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          FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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      Appellant M.J. (Mother) appeals the trial court’s order in this suit affecting

the parent-child relationship (SAPCR) between her and P.J. Sr. (Father)

concerning their child, P.J. Jr. (Junior). 2 We affirm.




      1
       See Tex. R. App. P. 47.4.
      2
       We use aliases for the child and the parents throughout this opinion. See
Tex. R. App. P. 9.8(b)(2).
                               Background Facts

      Mother and Father began living together in September 2006. Mother gave

birth to Junior in August 2008. Mother and Father separated in February 2011.

      On August 29, 2012, Father filed a SAPCR petition alleging that Mother

had committed family violence during the two-year period before the filing of the

petition, and he requested supervised visitation with Junior for Mother. Father

also sought temporary child support from Mother for Junior and injunctive relief.

Mother was served with citation on September 10, 2012, but did not file an

answer.

      A hearing was held on November 27, 2012. Mother did not appear. After

the hearing, the trial court found that Mother had defaulted. It granted Father

immediate possession of Junior and ordered that Mother’s visitation with Junior

be supervised. The trial court also permanently enjoined Mother from causing

physical contact or bodily injury to Junior or to Father or threatening them with

imminent bodily injury; from communicating with Father except for arranging

visitation or notifying him of circumstances affecting Junior’s best interest; and

from coming within fifty feet of Father’s residence. The trial court ordered that

Mother pay $200 in child support and $25 in medical support each month.

      On December 26, 2012, Mother filed a motion for new trial, arguing that

her failure to file an answer was not intentional or the result of conscious

indifference. On January 11, 2013, Mother filed an amended motion for new trial

to which she attached an affidavit stating that she did not appear because she

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had been in the hospital “soon after getting service” and because she was “taking

care of [Junior,] . . . pay[ing for] lunch, clothing and shoes [and] socks[,] and

pictures.” The trial court held a hearing on Mother’s motion on January 31, 2013.

Mother testified that she did not appear because she was “caught up in

everything that [she] had to deal with at the time” and said she had been busy

“dealing with CPS at the time.” The trial court denied Mother’s motion for new

trial, stating that there was “not good cause for failing to file an answer for two

months despite the pregnancy, and pregnancy is not a disability.” Mother then

filed this appeal. 3

                                     Discussion

I. Mother’s motion for new trial

       In her fourth issue, Mother argues that the trial court abused its discretion

by denying her motion for new trial. She argues that the trial court’s statement

that there was “not good cause for failing to file an answer for two months despite

the pregnancy, and pregnancy is not a disability,” demonstrated that the trial

court applied the wrong standard of review.

       The requirements for setting aside a default judgment by motion for new

trial were set forth by the supreme court in Craddock v. Sunshine Bus Lines, 134

Tex. 388, 393, 133 S.W.2d 124, 126 (1939). The movant must (1) establish that

the failure to answer was not intentional or the result of conscious indifference,


       3
        Father did not file an appellate brief in response.

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(2) set up a meritorious defense, and (3) demonstrate that setting aside the

default will not cause a delay or otherwise injure the plaintiff. Id. “While trial

courts have some measure of discretion in the matter, as, in truth, they have in

all cases governed by equitable principles, it is not an unbridled discretion to

decide cases as they might deem proper, without reference to any guiding rule or

principle.” Id.

      A defaulting party must provide some excuse, though not necessarily a

good excuse, for failing to timely file an answer or appear.       See McClure v.

Landis, 959 S.W.2d 679, 681 (Tex. App.—Austin 1997, writ denied); Ferrell v.

Ferrell, 820 S.W.2d 49, 50 (Tex. App.—Corpus Christi 1991, no writ) (noting that

some excuse, but not necessarily a good excuse, will suffice). If a defendant’s

factual assertions are not controverted by the plaintiff, the defendant satisfies her

burden if she has set forth facts which, if true, negate a finding of intentional or

consciously indifferent conduct. Director, State Emps. Workers’ Comp. Div. v.

Evans, 889 S.W.2d 266, 268 (Tex. 1994).

      In her motion for new trial, Mother’s excuse for not filing an answer or

appearing at trial was that she “was 7 months preg[n]ant in the hospital soon

after getting service with the petition for custody on my child [Junior] that I was

taking care of in school[,] pay[ing for] lunch, clothing and shoes [and] socks[,] and

pictures.” At the hearing on her motion, Mother stated,

            And I didn’t get to reach—to make that court hearing, because
      I had a lot of things that I was dealing with. I was eight[ ]months
      pregnant, back and forth and whatnot. I was going through classes

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      and met on Saturdays, and it was on Lancaster for counseling. And
      I was pretty much, you know, caught up in everything that I had to
      deal with at the time to not appear at the court date that was issued
      on the 26th of November.

      Mother’s stated reasons do not satisfy her burden under Craddock. She

did not say that she had been hospitalized for the entire two months from the

time she was served in early September 2012 to the time the hearing was held in

late November 2012. See Liberty Mut. Fire Ins. Co. v. Ybarra, 751 S.W.2d 615,

617–18 (Tex. App.—El Paso 1988, no writ) (holding that defendant’s affidavit that

contained only general statements with no dates or other verifying information did

not disprove its conscious indifference). She did not claim to have classes or

other obligations on the trial date nor did she request a continuance or otherwise

make any inquiry into the case. See In re R.R., 209 S.W.3d 112, 115 (Tex.

2006) (“Not understanding a citation and then doing nothing following service

does not constitute a mistake of law that is sufficient to meet the Craddock

requirements.”) (citing Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 84 (Tex.

1992)); Johnson v. Edmonds, 712 S.W.2d 651, 652–53 (Tex. App.—Fort Worth

1986, no writ) (stating that default judgments are appropriate when the defendant

failed “to take some action which would seem indicated to a person of

reasonable sensibilities under the same circumstances”). Instead, she made the

intentional choice not to answer Father’s petition, to inquire about the status of

the case, or to notify the trial court of her inability to appear at trial.   See

O’Connell v. O’Connell, 843 S.W.2d 212, 218 (Tex. App.—Texarkana 1992, no


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writ) (upholding a default judgment when defendant “did not act as a reasonable

person would have in preparation for the trial date”); Johnson, 712 S.W.2d at 653

(affirming a default judgment when the appellant “neither sought help nor advice

nor made inquiry about the import of the ‘papers’ he had received”).

      Further, Mother failed to set up a meritorious defense. Merely alleging that

the party has a meritorious defense does not satisfy Craddock. “The motion

must allege Facts which in law would constitute a defense to the cause of action

asserted by the plaintiff, and must be supported by affidavits or other evidence

proving prima facie that the defendant has such meritorious defense.” Ivy v.

Carrell, 407 S.W.2d 212, 214 (Tex. 1966). Mother’s motion states merely that

she has a defense, but in her affidavit, Mother did not testify to any facts

constituting a defense. See Wal–Mart Stores, Inc. v. Kelley, 103 S.W.3d 642,

644 (Tex. App.—Fort Worth 2003, no pet.) (holding there was no showing of a

meritorious defense where there was no evidence submitted regarding a defense

and neither of the affidavits attached to the motion testified to facts regarding

such a defense); Wiseman v. Levinthal, 821 S.W.2d 439, 442 (Tex. App.—

Houston [1st Dist.] 1991, no writ) (holding that unverified factual allegations do

not satisfy the first prong of Craddock).

      Because Mother failed to set up a meritorious defense and because she

exhibited conscious indifference toward the proceedings, the trial court did not err

by denying her motion for new trial. We overrule Mother’s fourth issue.



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II. Sufficiency of the evidence establishing Father’s paternity

      In Mother’s first and second issues, she argues that Father failed to

establish standing because he did not establish his paternity.

      At the beginning of the hearing on Father’s petition, the trial court

erroneously believed that Mother and Father were married and that Father was

seeking a divorce. At the end of the hearing, the trial court realized that Mother

and Father were not married. The trial judge asked Father,

      Q. (BY THE COURT) Okay. Y’all weren't married, y’all just lived
      together?

      A. No, we just lived together.

            ....

      Q. Okay. You’re on the birth certificate?

      A. Yes, on—yes.

      Q. Okay. Okay. Go ahead and have a seat. I thought y’all were
      married. It’s not a divorce, but the SAPCR is approved.

      Mother argues that “[b]eing named on a birth certificate, without more,

does not clothe a man with a presumption of paternity.” In re M.E.H., No. 02-05-

00119-CV, 2006 WL 909936, at *1 (Tex. App.—Fort Worth Apr. 6, 2006, no pet.)

(mem. op.). There is, however, more evidence than Father’s testimony that he is

on Junior’s birth certificate. A man is presumed to be the father of a child if

“during the first two years of the child’s life, he continuously resided in the

household in which the child resided and he represented to others that the child

was his own.”      Tex. Fam. Code Ann. § 160.204(a)(5) (West 2008).        Father

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testified that he and Mother were living together when Junior was born in August

2008, and they continued to live together until February 2011.          Father also

represented that Junior was his child. He testified that he signed up Junior for

Medicaid and food stamps and that he “do[es] most of the providing for [Junior].”

He referred to Junior as “[his] child” in his petition and averred that he had

standing because he was Junior’s parent. The evidence was therefore sufficient

to support the unrebutted presumption that Father is Junior’s father. We overrule

Mother’s first and second issues.

III. Relief granted

      In her third issue, Mother argues that the trial court violated her

constitutional right to due process when it erred by granting Father relief for

which he had not pleaded. She argues that Father failed to request that the court

make provisions for conservatorship and access to Junior and for child support

and medical support.

      Mother did not present this argument to the trial court. See Tex. R. App. P.

33.1; see also In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003), cert. denied, 541

U.S. 1043 (2004) (noting that to preserve issue for appellate review, including

constitutional error, party must present to trial court a timely request, motion, or

objection, state specific grounds therefore, and obtain ruling.); In re S.G., No. 09-

09-00284-CV, 2010 WL 2541919, at *2 (Tex. App.—Beaumont June 24, 2010,

no pet.) (holding that mother waived constitutional due process argument in



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context of a SAPCR). Even if Mother had preserved this issue, we must overrule

it.

      A default judgment must be supported by the pleadings. Stoner v.

Thompson, 578 S.W.2d 679, 682 (Tex. 1979); see Tex. R. Civ. P. 301; In re

A.B.H., 266 S.W.3d 596, 599 (Tex. App.—Fort Worth 2008, no pet.) (op. on

reh’g). The defendant must have fair notice of the plaintiff’s cause of action and

the relief sought. McKnight v. Trogdon–McKnight, 132 S.W.3d 126, 131 (Tex.

App.—Houston [14th Dist.] 2004, no pet.). “Generally, a pleading provides fair

notice of a claim when an opposing attorney of reasonable competence can

examine the pleadings and ascertain the nature and basic issues of the

controversy and the relevant testimony.” Taylor v. Taylor, 337 S.W.3d 398, 401

(Tex. App.—Fort Worth 2011, no pet.) (op. on reh’g) (citing Horizon/CMS

Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000)).

      In the context of SAPCRs, however, detailed pleadings are not required

because the trial court’s paramount concern is the best interests of the child.

See Aguilar v. Barker, 699 S.W.2d 915, 917 (Tex. App.—Houston [1st Dist.]

1985, no writ); Boriack v. Boriack, 541 S.W.2d 237, 242 (Tex. App.—Corpus

Christi 1976, writ dism’d). Therefore, the technical rules of pleading and practice

may be of little importance. See Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.

1967) (holding technical rules of practice and pleadings are of little importance in

determining issues concerning custody of children). A court may even award

child support without any request for it in the pleadings. See Wolters v. White,

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659 S.W.2d 885, 888 (Tex. App.—San Antonio 1983, writ dism’d w.o.j.); Boriack,

541 S.W.2d at 242.

      Father’s petition is a preprinted form with blanks and check boxes. Under

the “Standing” section, Father wrote

            The child [Junior] I feel like is in a dangerous situation
      because[] there are more than 12 or 13 people living in a 3 bedroom
      home in which my child and [his] mother reside in a garage, also
      there are problems with cleanliness and the child ([Junior]) being
      properly cared for, as far as food, clothing, properly nourished . . . .
      There’s also a history of drug use by the mother and the other
      residents in the home. [Junior] is under the age of 5 and unable to
      protect himself. [Mother] is currently pregnant and tested positive for
      marijuana. [Mother] lacks parenting skills and has lost one child to
      CPS custody due to her drug use . . . .

Father did not check any boxes under “Conservatorship & Access” regarding

who he was requesting the trial court name as the managing and possessory

conservators. He did check a box stating, “Respondent has committed family

violence during the two-year period before I filed this case. I ask the Court to

keep Respondent away from the children.            But if the Court will not deny

Respondent visitation, I ask that the Court order that Respondent’s visitation be

supervised . . . .” On the next page, Father wrote, “I think that [Mother] should

continue with supervised visitation because she is not a responsible parent to be

left alone with any child or until evaluated monthly.”

      Father did not check the box under the “Support” section, but under

“Request for Temporary Orders,” he checked a box requesting that Mother “pay

statutory child support, health insurance premiums for the children, and half of


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the children’s uninsured medical expenses, private school tuition or day-care

expenses during this case.”

      Father’s petition, although not an example of clarity, was sufficient to put

Mother on notice that he was seeking possession of Junior and to establish

supervised visitation, which would necessitate a determination of conservatorship

and access. The trial court was also within its discretion to award child support in

Junior’s best interest. See Wolters, 659 S.W.2d at 888. We therefore overrule

Mother’s third issue.

                                   Conclusion

      Having overruled Mother’s issues on appeal, we affirm the trial court’s

judgment.




                                                   LEE GABRIEL
                                                   JUSTICE

PANEL: WALKER, MCCOY, and GABRIEL, JJ.

DELIVERED: December 19, 2013




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