                              In The
                        Court of Appeals
          Sixth Appellate District of Texas at Texarkana


                            No. 06-13-00123-CV




IN THE MATTER OF THE MARRIAGE OF LUCAS WOODS AND JESSICA WOODS AND
           IN THE INTEREST OF L.K.L.W. AND S.B.L.W., CHILDREN




                    On Appeal from the 6th District Court
                          Lamar County, Texas
                          Trial Court No. 82459




                 Before Morriss, C.J., Carter and Moseley, JJ.
                   Memorandum Opinion by Justice Carter
                                          MEMORANDUM OPINION
            Jessica Woods appeals from the final decree of divorce dissolving her marriage to Lucas

Woods and determining conservatorship of the parties’ children, L.K.L.W. and S.B.L.W. Lucas

did not file a brief in this appeal. In one issue, Jessica argues that the trial court erred when it

denied her motion for a new trial. Because we agree, we reverse the judgment of the trial court

and remand for a new trial.

I.          Background

            Lucas and Jessica separated in May 2012 after having married in November 2008. The

separation lasted one year, and during that time, their two young children lived with Jessica. By

agreement, Lucas had possession of the children every other weekend and every other week

during the summer.

            When Jessica and Lucas decided to divorce after approximately one year of separation,

they agreed that the children would continue to live with Jessica after the divorce and that Lucas

would continue with the same visitation schedule the parties’ adhered to during the time of their

separation. 1 Consequently, when Jessica was served with citation and a copy of the petition for

divorce, she did not respond because she believed she and Lucas had resolved all custody issues 2

prior to the time the petition was filed and because Lucas told her a response was unnecessary.

            Without notice to Jessica, a final divorce hearing was conducted in September 2013, at

which time the court determined that Jessica was in default. After an evidentiary hearing—with


1
    Jessica assisted Lucas in drafting the petition and filled out the forms necessary for its filing.
2
    The parties also resolved all property issues, which are not disputed here.

                                                                2
Lucas as the sole witness—the trial court granted Lucas’ petition for divorce. 3 Lucas testified

that Jessica “took the kids and left” and that he was seeking custody of the children. The trial

court granted the divorce and, among other things, named the parties joint managing

conservators, awarded Lucas the right to designate the primary place of the children’s residence, 4

and ordered Jessica to pay child support.

            On the evening of the final hearing, the children left Jessica’s residence with Lucas for

what Jessica believed to be a typical weekend visit. When Lucas failed to return the children to

Jessica on Sunday evening at the usual time, Jessica contacted him by telephone.                                 Lucas

informed Jessica that the final divorce hearing was held on the preceding Friday (September 17,

2013) and that Lucas had been awarded the right to designate the children’s primary residence.

Lucas further informed Jessica that she would have to immediately start paying child support.

            On September 30, 2013, Jessica filed a pro se motion for new trial which was denied on

the date of its filing. Thereafter, the final decree of divorce was entered October 7, 2013. 5 On

October 11, 2013, Jessica filed a timely motion to set aside the default judgment and motion for

a new trial, alleging that she established the necessary elements to set aside the default




3
    In a rather unusual twist, the trial court questioned Lucas for the purpose of proving up the divorce.
4
    The trial court explained, “I’m telling you you’re going to have the right to have the children with you.”
5
 The decree indicates that Jessica, although duly and properly cited, did not appear and wholly made default. The
decree further names Lucas as the party with the exclusive right to designate the primary residence of the children
without regard to geographic location, includes the Standard Possession Order, and orders Jessica to pay child
support.
                                                              3
judgment. 6 This motion was denied without hearing on October 14, 2013. Jessica’s motion for

reconsideration of her October 11 motion was overruled by operation of law.

II.        Analysis

           We review a trial court’s denial of a motion for new trial for an abuse of discretion.

Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009) (per curiam). In the

context of a motion to set aside a default judgment, the Supreme Court of Texas has articulated

the following factors, known as the Craddock elements, that must be analyzed on appeal.

           A trial court must set aside a default judgment if (1) ‘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’; (2) ‘the motion
           for a new trial sets up a meritorious defense’; and (3) granting the motion ‘will
           occasion no delay or otherwise work an injury to the plaintiff.’

Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 309 (Tex. 2012) (quoting

Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939)). In Texas, adjudication

on the merits is preferred. Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 86 (Tex. 1992).

Adjudication on the merits is of primary importance in cases affecting the parent-child

relationship. See Rhamey v. Fielder, 203 S.W.3d 24, 28–29 (Tex. App.—San Antonio 2006, no

pet.) (courts exercise liberality in favor of defaulting party having day in court, particularly in

cases affecting parent-child relationship); Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex. App.—

San Antonio 1987, no writ). “The best interest of the child requires that the issue be as fully

developed as possible.” Rhamey, 203 S.W.3d at 29. When the Craddock elements are met, the




6
    This motion was filed by counsel.
                                                    4
trial court abuses its discretion if it fails to grant a new trial. Lerma, 288 S.W.3d at 926. With

these principles in mind, we must determine whether the Craddock elements are satisfied here.

            A.       Failure to Answer Was Neither Intentional Nor the Result of Conscious
                     Indifference

            When the failure to file an answer is not the result of intentional disregard or conscious

indifference, the first Craddock element is satisfied. Diagnostic Clinic of Longview, P.A. v.

Neurometrix, Inc., 260 S.W.3d 201, 205 (Tex. App.—Texarkana 2008, no pet.). The failure to

file an answer is intentional or results from conscious indifference if “the defendant knew [she]

was sued but did not care.” In re R.R., 209 S.W.3d 112, 115 (Tex. 2006) (quoting Fid. & Guar.

Ins. Co. v. Drewery Const. Co., 186 S.W.3d 571, 576 (Tex. 2006)). “[S]ome excuse, although

not necessarily a good one, will suffice to show that a defendant’s failure to file an answer was

not because the defendant did not care.” R.R., 209 S.W.3d at 115.

            Here, Jessica filed an uncontroverted affidavit in connection with her motion to set aside

the default judgment and seeking a new trial, in which she explained her failure to timely file an

answer: 7

            Lucas and I decided to go ahead and file for a divorce after a year of separation.
            We discussed and agreed as to how property would be distributed and that the
            children would remain with me and he would continue to have visitation as we
            had been doing.

            Lucas obtained the paperwork necessary to file the divorce and I even filled the
            papers out for him. I didn’t think it mattered who was the Petitioner or who was
            the Respondent. I was served with copies of the Petition for Divorce on May 16,
            2013 and when I asked Lucas about this, he told me that it was just a necessary
            part of the divorce and didn’t mean anything since we had agreed to everything.


7
    Jessica filed an answer when Lucas informed her of the results of the final hearing.
                                                             5
“A defendant satisfies its burden under this element when its factual assertions, if true, negate

intentional or consciously indifferent conduct by the defendant and the factual assertions are not

controverted by the plaintiff.” Millstone Operating, Inc., 388 S.W.3d at 310. Accordingly,

because the foregoing factual assertions are uncontroverted, the first Craddock element is

satisfied if these assertions—if true—negate intentional or consciously indifferent conduct. We

conclude that they do.

            In a somewhat analogous case, a default judgment of divorce was entered after the wife

failed to file a response to the petition. Beckman v. Beckman, 716 S.W.2d 83, 84 (Tex. App.—

Dallas 1986, writ dism’d). In her affidavit filed in support of a motion for new trial, the wife

explained that her failure to answer was based on the parties’ agreement that her husband would

dismiss the divorce action. 8 Id. This factual allegation was sufficient to negate intentional or

consciously indifferent conduct. Id. at 85. Because the allegations in the wife’s affidavit were

sufficient to support the remaining Craddock factors, the trial court’s judgment denying the

wife’s motion for new trial was reversed. Id.

            Even when a judgment is obtained following the execution of a waiver of citation, a

motion for new trial can be granted under circumstances similar to those presented here. See

Rhamey, 203 S.W.3d at 27. In Rhamey, as in this case, the parties agreed on and abided by

custody and visitation arrangements during the period of their separation. Id. The wife’s

petition for divorce stated that the parties would enter into an agreement regarding

conservatorship and possession of their son. Id. On the same day the petition was filed, the


8
    The wife previously filed suit for divorce in a different county. Beckman, 716 S.W.2d at 84.
                                                            6
wife’s attorney sent Rhamey a letter indicating, “It is my understanding that you and your wife

have been alternating possession of [your son] every two weeks. It is [your wife’s] desire to

maintain the current schedule and not disrupt the status quo.” Id. Rhamey, thereafter, executed a

waiver of citation, based on his wife’s representation that the status quo of alternating possession

would be maintained. Id. The alternating custody agreement continued until the day the wife

appeared at trial. Id. at 29. At trial, the wife testified that, since the parties’ separation,

possession of their son was alternated. She further testified that Rhamey failed to take their son

to certain extracurricular activities during his periods of possession, that Rhamey had bi-polar

disorder, and that he was not taking his medication. Id. at 27. After hearing this testimony, the

trial court reduced Rhamey’s access to his son. Id. Based on these facts, the appellate court

concluded that Rhamey satisfied the first Craddock element. 9

         Here, as in Rhamey, Jessica relied on Lucas’ assurances that their previously agreed-to

custody and visitation arrangements, which remained in place until the date of the final hearing,

would remain unchanged after the divorce.                 Jessica did not file an answer to the divorce

petition—a petition that she filled out—based on the parties’ agreement to maintain the status

quo. As in Rhamey, the status quo was altered after Lucas testified that he wanted the children to

live with him and that Jessica “took the kids and left.”

         We conclude that Jessica’s failure to answer the divorce petition was neither intentional

nor the result of conscious indifference. See Rhamey, 203 S.W.3d at 27; see also Beckman, 716

S.W.2d at 84; Millstone Operating, Inc., 388 S.W.3d at 310 (defendant’s burden as to first

9
 The court determined that the wife’s actions amounted to extrinsic fraud, in view of both the letter and the parties’
reliance on the status quo for sixteen months. Rhamey, 203 S.W.3d at 30.
                                                          7
Craddock element satisfied when uncontroverted factual assertions, if true, negate intentional or

consciously indifferent conduct); R.R., 209 S.W.3d at 115 (same).

       B.      Meritorious Defense

       We now must determine whether Jessica’s motion sets up a meritorious defense. This

determination is based on the facts alleged in the motion and the supporting affidavit, regardless

of whether those facts are controverted. Dir., State Employees Workers’ Comp. Div. v. Evans,

889 S.W.2d 266, 270 (Tex. 1994). A meritorious defense is a defense that, if proven, would

cause a different result on retrial of the case. In re A.P.P., 74 S.W.3d 570, 574–75 (Tex. App.—

Corpus Christi 2002, no pet.).

       In this regard, we acknowledge that the primary consideration in determining issues

regarding conservatorship, access, and possession is always the best interest of the child. TEX.

FAM. CODE ANN. § 153.002 (West 2014); In re M.T.C., 299 S.W.3d 474, 479 (Tex. App.—

Texarkana 2009, no pet.). As a result, the second Craddock factor is more difficult to apply to a

suit involving conservatorship decisions. See, e.g., A.P.P., 74 S.W.3d at 575. Nevertheless,

Texas courts have long recognized certain (non-exclusive) factors to be considered in

determining the best interest of a child:

       (A) the desires of the child; (B) the emotional and physical needs of the child now
       and in the future; (C) the emotional and physical danger to the child now and in
       the future; (D) the parental abilities of the individuals seeking custody; (E) the
       programs available to assist these individuals to promote the best interest of the
       child; (F) the plans for the child by these individuals or by the agency seeking
       custody; (G) the stability of the home or proposed placement; (H) the acts or
       omissions of the parent which may indicate that the existing parent-child
       relationship is not a proper one; and (I) any excuse for the acts or omissions of the
       parent.

                                                8
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); Matter of Marriage of Bertram, 981 S.W.2d

820, 822–23 (Tex. App.—Texarkana 1998, no pet.) (applying Holley factors for best interest

determination in conservatorship proceeding).

            In her affidavit, Jessica stated that both L.K.L.W. and S.B.L.W. had lived exclusively

with her since the parties separated in May 2012, although Lucas had visits with the children

every other weekend and every other week during the summer. Jessica also averred in her

affidavit that this arrangement continued until the date of the hearing in September 2013 and that

the parties had agreed to maintain the arrangement after their divorce. Additionally, Jessica

stated in her affidavit that her young children (ages six and three at the time of the hearing) had

never been away from her for any extended period of time. According to her affidavit testimony,

the children had an established routine with her, and she believed it would be detrimental to the

children’s mental health and well-being for them to be removed from her household. In support

of this assertion, Jessica also revealed in the affidavit that, when she went to Lucas’ residence

after the hearing, the children cried to come with her. 10 Finally, Jessica averred that, since the

children began living with Lucas, the older child had been withdrawn from his old school and

enrolled in a new one.

            Based on Jessica’s factual assertions together with the applicable Holley factors, we

believe Jessica has set up a meritorious defense to the possession order entered by the trial court,

which modified the living arrangements of the children and raised concerns regarding their best

interests. See Rhamey, 203 S.W.3d at 31 (affidavit coupled with possession until date of trial set


10
     Lucas allowed the children to leave with Jessica at that time.
                                                              9
up meritorious defense to new possession order which altered status quo and raised concerns

regarding best interest of child).

        C.       Delay or Injury

        The purpose of the third Craddock factor is “to protect a plaintiff against the sort of

undue delay or injury that would disadvantage her in presenting the merits of her case at a new

trial, such as a loss of witnesses or other valuable evidence.” Evans, 889 S.W.2d at 270.

Jessica’s motion for new trial was timely filed and urged that granting a new trial would not

result in delay or otherwise injure Lucas. See Craddock, 133 S.W.2d at 126. “Once a defendant

has alleged that granting a new trial will not injure the plaintiff, the burden of going forward with

proof of injury shifts to the plaintiff.” Evans, 889 S.W.2d at 270. Lucas has failed to come

forward with any proof that the granting of a new trial would in some way cause him injury. 11

        Here, the motion to set aside the default judgment and for a new trial was filed four days

after the trial court entered the final decree of divorce. The petition had been on file for

approximately five months. See Lowe v. Lowe, 971 S.W.2d 720, 725 (Tex. App.—Houston

[14th Dist.] 1998, pet. denied) (very little time passed from original trial date to date motion for

new trial was filed, and suit had been on file for one and one-half years). We conclude that

Jessica met the third Craddock requirement.


11
  Jessica’s motion did not include an offer to reimburse Lucas for expenses incurred in obtaining the default
judgment. See Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987) (offer to reimburse plaintiff for costs of default
judgment or readiness for trial are important factors in determining whether to grant new trial, but are not
precondition for granting motion). “An equitable principle is involved and the court should deal with the facts on a
case by case basis in order to do equity.” Evans, 889 S.W.2d at 270. We do not believe it is equitable to permit the
absence of an offer to reimburse Lucas’ expenses in obtaining a default judgment (which were minimal, given that
Jessica completed the petition) to preclude the granting of a new trial.

                                                        10
III.     Conclusion

         Because Jessica’s motion and supporting affidavit satisfied each of the Craddock

elements, the trial court erred in failing to grant Jessica’s motion for a new trial. Jessica’s sole

point of error challenges only those portions of the decree pertaining to conservatorship and child

support. We, therefore, reverse the judgment of the trial court on the issues of conservatorship

and child support only and remand the case to the trial court for further proceedings consistent

with this opinion.12




                                                      Jack Carter
                                                      Justice

Date Submitted:            March 28, 2014
Date Decided:              April 25, 2014




12
 Although Jessica’s notice of appeal states that she “desires to appeal from all portions of the judgment,” her sole
point of error on appeal challenges only those portions of the decree pertaining to conservatorship and child support.
                                                         11
