                                    COURT OF APPEALS
                                 EIGHTH DISTRICT OF TEXAS
                                      EL PASO, TEXAS

 PATRICK WM. ANDERSON,                            §
                                                                   No. 08-07-00156-CV
                   Appellant,                     §
                                                                     Appeal from the
 v.                                               §
                                                                    65th District Court
 CYNTHIA DIANE ANDERSON,                          §
                                                                 of El Paso County, Texas
                   Appellee.                      §
                                                                   (TC# 2005CM6242)
                                                  §

                                           OPINION

       Cynthia Diane Anderson (Appellee) sued her husband Patrick Wm. Anderson (Appellant)

for divorce. Appellant filed an Original Answer and Counter-Petition for divorce. A final hearing

was held on February 15, 2007. Neither the Appellant nor his attorney showed up for the final

hearing. A default judgment was rendered on February 15, 2007. On March 9, 2007, a Final Decree

of Divorce was filed. On March 12, 2007, a Motion for New Trial was filed on behalf of the

Appellant. This Motion for New Trial was denied by operation of law on May 26, 2007. On June

20, 2007, the court denied the Appellant’s Motion to Reconsider and Second Motion for a New

Trial. Finally, on June 21, 2007, the Appellant filed his notice of appeal. He presents three issues

for review. First, whether the trial court erred in not granting the Motion for New Trial before it was

overruled by operation of law. Second, whether the award of tract 13Q, Block 1, to the Appellee as

her separate property was error. And third, whether it was error for the trial court to grant a

protective order prohibiting the Appellant from owning a weapon when the Appellee did not file an

application for a protective order. We reverse the trial court’s judgment and remand for further

proceedings.
                            I. STANDARD OF REVIEW ISSUE ONE

        We review the denial of a motion for new trial under an abuse of discretion standard. Munoz

v. Rivera, 225 S.W.3d 23, 26 (Tex.App.–El Paso 2005, no pet.). To set aside a post-answer default

judgment, the defendant must show: (1) that failure to appear at trial was not intentional or the result

of conscious indifference, but was due to mistake or accident; (2) that there exists a meritorious

defense to the suit; and (3) that granting the motion will not delay or otherwise work an injury to the

plaintiff. Id. (citing Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126

(1939)). A trial court abuses its discretion in failing to grant a new trial if all three Craddock

elements are met. Id. (citing Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994)).

        In determining whether there is intentional disregard or conscious indifference, the trial court

examines the knowledge and acts of the parties who failed to appear. In re K.A.R., 171 S.W.3d 705,

717 (Tex.App.–Houston [14th Dist.] 2005, no pet.). A failure to appear is not intentional or due to

conscious indifference merely because it was deliberate; rather, it must also be without justification.

Id. Proof of such justification, accident, mistake, or other reasonable explanation negates intent or

conscious indifference. Id. If the factual assertions in a defendant’s affidavit are not controverted

by the plaintiff, the defendant satisfies his burden if his affidavit sets forth facts that, if true, negate

intentional or consciously indifferent conduct by the defendant. Munoz, 225 S.W.3d at 28 (citing

Director, State Employees Workers’ Compensation Div. v. Evans, 889 S.W.2d 266, 269 (Tex.

1994)). In determining if the defendant’s factual assertions are controverted, the court looks to all

the evidence in the record. Id.

        Keeping in mind the Craddock elements and the standard of review, this Court will analyze

each element individually in order to determine if the trial court abused its discretion in denying the

Motion for New Trial. However, before we review the Craddock elements, we must first determine
if the Motion for New Trial was properly filed and preserved for appellate review. Appellee argues

that because the Motion for New Trial was overruled by operation of law and a hearing was not

heard until after the Motion for New Trial was overruled by operation of law, the Appellant has

waived this issue.

                                II. MOTION FOR NEW TRIAL

        The original Motion for New Trial was filed on March 12, 2007. Appellant submitted a

hearing request form to the trial court on May 4, 2007. The trial court set the hearing for June 4,

2007, a date after the 75th day following the entry of Default Judgment, but still within the trial

court’s thirty days of plenary power. See TEX .R.CIV .P. 329b(e). At the June 4 hearing on the

motion, the trial court ruled that the Motion for New Trial had been overruled by operation of law,

and denied the motion without hearing testimony or receiving evidence. On June 11, 2007,

Appellant filed a Motion to Reconsider and Respondent’s Second Motion for New Trial. The

Appellant presented evidence in the Second Motion for New Trial establishing that a hearing had

been requested on May 4 and that the court set the motion for hearing on June 4, a date after the 75th

day, but within the court’s thirty days of plenary power. Appellant argued that had his Motion for

New Trial been heard, the court would have granted the motion based on the uncontroverted facts

sworn to in the affidavits that met the Craddock requirements. The court denied the Motion to

Reconsider and Second Motion for New Trial on June 20, 2007, before the plenary power of the trial

court expired. A transcript of that hearing was requested by this Court of the official court reporter,

and on February 23, 2009, she reported that none was taken.

       In Hawkins v. Howard, Howard argued that the trial court was not required to hear evidence

on a motion for new trial at a hearing held one hundred days after the final judgment was signed,

because the motion for new trial had been overruled by operation of law. 97 S.W.3d 676, 678
(Tex.App.–Dallas 2003, no pet.). The Dallas Court of Appeals held “[t]he hearing on the motion

for new trial in this case was conducted within thirty days after it was overruled by operation of law.

Because the trial court had plenary power to grant the motion at the time it conducted the hearing,

we conclude it had the same obligation to hear evidence as if the hearing had been conducted within

the seventy five-day period.” Id. When a motion for new trial presents a question of fact upon

which evidence must be heard, the trial court is obligated to hear such evidence if the facts alleged

by the movant would entitle him to a new trial. Hawkins, 97 S.W.3d at 678. We find that the trial

court abused its discretion in denying the first Motion for New Trial on the grounds that the motion

had already been overruled by operation of law and in failing to conduct a hearing at the June 4

setting when the court had plenary power to grant the motion.

       Having found that the issue on the Motion for New Trial is properly before this Court, we

will now review the Motion for New Trial under the Craddock framework.

                                  III. CRADDOCK ELEMENTS

                                  A. Failure to Appear at Trial

       The first Craddock element requires the moving party show that the failure to appear at trial

was not intentional or the result of conscious indifference, but was due to mistake or accident.

Craddock, 133 S.W.2d at 126; Munoz, 225 S.W.3d at 26.

       Appellant’s original Motion for New Trial was supported by the affidavits of Appellant and

Appellant’s counsel. Appellant’s affidavit states that as he was preparing to leave his residence, on

the morning of the final hearing, he received a phone call from the office of his attorney, Eduardo

Vasquez. Appellant was informed that counsel was ill and would not be able to attend the final

hearing and that the court had been called to reschedule the final hearing. Based on this information,

Appellant did not attend the hearing and admits that he mistakenly believed that the hearing would
be moved to another date. Eduardo Vasquez’s affidavit states that on the night before the final

hearing, February 14, 2007, he developed gastrointestinal issues. On the morning of the hearing his

condition had improved, but he was still bedridden and unable to go to work. Vasquez’s office was

informed that it was impossible for Vasquez to go to work and was requested to contact the

necessary entities as to the circumstances. Appellee’s response to the Motion for New Trial rests

on the argument that the Motion for New Trial was overruled by operation of law. Appellee fails

to respond to the three Craddock elements and does not controvert the Appellant’s affidavits. If the

factual assertions in a defendant’s affidavt are not controverted by the plaintiff, the defendant

satisfies his burden if his affidavit sets forth facts that, if true, negate the intentional or consciously

indifferent conduct by the defendant. Evans, 889 S.W.2d at 269; Strackbein v. Prewitt, 671 S.W.2d

37, 38-39 (Tex. 1984).

        We find that the absence of both the Appellant and his attorney although deliberate, was

justified given the circumstances surrounding the morning of February 15, 2007 and that the failure

to appear at the final hearing was not due to intentional disregard or conscious indifference. See In

Re K.A.R., 171 S.W.3d at 717.
                                     B. Meritorious Defense

       The second Craddock element requires the defaulting defendant establish a meritorious

defense. Craddock, 133 S.W.2d at 126. Meaning, the movant “must allege [f]acts 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). That does not mean that a party must conclusively

prove the truth of the defense being raised. Miller v. Miller, 903 S.W.2d 45, 48 (Tex.App.–Tyler

1995, no pet.). The true test is whether or not the defense raised and supported with evidence would

change the result of the default judgment. Id.

       In the default judgment the court awarded a tract of land with the legal description of Tract

13Q, Block 1, Socorro, Grant in its entirety to the Appellee as her sole and separate property. In the

Appellant’s Motion for New Trial, he argues that “[r]espondent owns an interest in separate property

and community property whose just and right division would cause a different result on retrial. The

real property and some personal property awarded to the Petitioner is Respondent’s separate

property.” In his affidavit Appellant states that Tract 13Q, Block 1, Socorro, Grant, El Paso County,

Texas is his separate property, purchased prior to his marriage to Appellee. Appellee did not

controvert Appellant’s assertions in her response to the Motion for New Trial.

       Appellee then argues that because Appellant did not raise a claim of separate property in the

original pleadings, his claim has been waived. A party’s failure to plead a separate property claim

in a divorce proceeding does not bar the trial court from characterizing residential property as

separate property. The general denial properly raises the issue of ownership of the property. Chavez

v. Chavez, 269 S.W.3d 763, 766 (Tex.App.–Dallas 2008, no pet.); see also TEX .R.CIV .P. 92 (general

denial of matters pleaded by adverse party which are not required to be denied under oath, shall be
sufficient to put the same in issue). Further, in a divorce suit, the trial court may construe the

pleadings of the parties with regard to property division more liberally than in other civil cases.

Chavez, 269 S.W.3d at 766; Lindsey v. Lindsey, 564 S.W.2d 143, 145 (Tex.Civ.App.–Austin 1978,

no writ).

       We find that the Appellant’s uncontroverted affidavit sets up a meritorious defense that if

supported by the evidence, will change the result of the default judgment. A court is given discretion

in dividing community property but is not permitted to divest someone of their separate property.

Eggemeyer v. Eggemeyer, 554 S.W.2d 137, 139-40 (Tex. 1977). A divestiture of separate property

would be a violation of the Texas Constitution and Texas Family Code. See TEX .CONST . art. XVI

§ 15; TEX .FAM .CODE ANN . § 7.001 (Vernon 2006).

                                        C. Delay or Injury

       The final Craddock element requires that the motion for new trial be filed at a time when the

granting thereof will occasion no delay or otherwise work an injury to the nonmoving party.

Craddock, 133 S.W.2d at 126. If the appellant’s motion for new trial represented that granting the

motion would not cause delay or prejudice the burden shifts to the nonmoving party to show injury.

See Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987); Estate of Pollack v. McMurrey, 858 S.W.2d

388, 393 (Tex. 1993). The Appellee has failed to show that the granting of the motion would cause

her any disadvantage, delay, or injury. The record indicates that the original petition for divorce was

filed on September 19, 2005, approximately eighteen months later on March 9, 2007, the Decree of

Divorce was filed. Several motions were filed in that time and set for hearing and cancelled or

rescheduled. The record also indicates that both parties bore some responsibility for the delays

caused in that period of time. In his motion Appellant offered to go to trial immediately and to

reimburse Appellee for all reasonable expenses incurred in the default. We find that the Appellant
carried his burden and established that the granting of the Motion for New Trial would not have

caused delay or injury.

                                        IV. CONCLUSION

       Because Appellant met the Craddock elements in his Motion for New Trial, we conclude that

the trial court abused its discretion in failing to set aside the default judgment and grant the Motion

for New Trial. Accordingly, we reverse the default judgment of the trial court and remand the cause

to the trial court for further proceedings consistent with this opinion. Because Issue One is

dispositive, it is unnecessary to rule on Issue Two or Issue Three.



                                               GUADALUPE RIVERA, Justice

March 12, 2009

Before Chew, C.J., McClure, and Rivera, JJ.
