












 
 
 
 
 
 
                                   NUMBER
13-01-627-CV
 
                             COURT
OF APPEALS
 
                   THIRTEENTH
DISTRICT OF TEXAS
 
                                CORPUS
CHRISTI
___________________________________________________________________
 
                   IN THE INTEREST OF A. P. P., A MINOR CHILD

___________________________________________________________________
 
                         On
appeal from the 25th District Court
                                 of
Gonzales County, Texas.
__________________________________________________________________
 
                                   O
P I N I O N
 
        Before
Chief Justice Valdez and Justices Dorsey and Rodriguez
                                Opinion
by Justice Rodriguez
 
Appellant, the biological mother of A.P.P., a minor child, brings
this appeal following a default judgment removing her as sole managing
conservator of A.P.P., and naming appellee, the
biological father of A.P.P., joint managing conservator.  By three issues, appellant generally contends
the trial court erred by ordering a default judgment and denying her motion for
new trial.  We reverse and remand.
 




                                                 I.  BACKGROUND
On February 7, 1997, by final decree in a paternity suit,
appellant was appointed sole managing conservator of A.P.P. and appellee was appointed possessory
conservator.  On May 30, 2000, appellant
and appellee agreed to an order modifying the
parent-child relationship whereby appellee=s visitation
was changed and his monthly child-support payments were increased.  On May 29, 2001, appellee
filed a petition to modify the parent-child relationship.  In the petition, appellee
alleged that appointing him as sole managing conservator would be a positive
improvement for A.P.P.  In the
alternative, he requested to be appointed joint managing conservator.  Appellant was served with a citation and copy
of the petition on May 30, 2001; making her answer due June 25, 2001.  She did not file an answer.  On July 10, 2001, the trial court found
appellant in default and entered an order modifying the parent-child
relationship.  The order removed
appellant as managing conservator, and appointed appellant and appellee as joint managing conservators with appellee having the exclusive right to establish primary
residence.  Appellant filed a motion for
new trial with accompanying affidavits. 
The trial court denied the motion and made findings of fact and
conclusions of law.[1]  This appeal ensued.
II.  MOTION FOR NEW TRIAL




By her first issue, appellant contends her motion for new trial
should have been granted because she satisfied the Craddock elements.  See Craddock v. Sunshine Bus Lines, Inc.,
134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939).
A.  Standard of Review
As the trial court has wide discretion in denying a motion for
new trial, we will not disturb its ruling absent of an abuse of
discretion.  See Dir., State Emps. Workers= Comp. Div. v.
Evans,
889 S.W.2d 266, 268 (Tex. 1994); Coastal Banc SSB v. Helle,
48 S.W.3d 796, 800 (Tex. App.BCorpus Christi
2001, pet. denied).  However, a trial
court abuses its discretion by not granting a new trial when all three elements
of the Craddock test are met.  Evans,
889 S.W.2d at 268; Bank One, Tex, N.A. v. Moody, 830 S.W.2d 81, 85 (Tex.
1992).  Under Craddock, a trial
court should set aside a default judgment and order a new trial in any case in
which: 
(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 mistake or
accident; (2) provided the motion for new trial sets up a meritorious defense;
and (3) is filed at a time when the granting thereof will occasion no delay or
otherwise work an injury to the plaintiff. 

 
Craddock, 133 S.W.2d at
126. 
 
B.  Conscious
Indifference




Courts have applied the first Craddock prong liberally,
and each case depends on its own facts.  See
Gotcher v. Barnett, 757 S.W.2d 398, 401 (Tex.
App.BHouston [14th
Dist.] 1988, no writ); Harlen v. Pheffer, 693 S.W.2d 543, 545 (Tex. App.BSan Antonio
1985, no writ).  Generally, when a party
relies on an agent or representative to file an answer, the party must
establish that the failure to answer was not intentional or the result of conscious
indifference of either the party or the agent. 
Estate of Pollack v. McMurrey, 858
S.W.2d 388, 391 (Tex. 1993).  Conscious
indifference is the failure to take some action that would seem obvious to a
reasonable person in the same circumstance. 
See Norton v. Martinez, 935 S.W.2d 898, 901 (Tex. App.BSan Antonio
1996, no writ); Johnson v. Edmonds, 712 S.W.2d 651, 652-53 (Tex. App.BFort Worth
1986, no writ).  The defaulting party
must provide some excuse, but not necessarily a good excuse, for failing to
answer in a timely manner.  See Norton,
935 S.W.2d at 901; Gotcher, 757 S.W.2d at
401.  The absence of an intentional
failure to answer is the controlling factor under this analysis.  See Craddock, 133 S.W.2d at 125.  If the factual assertions in the defaulting
party=s motion and
affidavits are not controverted, the defaulting party
satisfies its burden if it sets forth facts that, if true, negate intent or
conscious indifference.  Evans,
889 S.W.2d at 269; Strackbein v. Prewitt,
671 S.W.2d 37, 38-39 (Tex. 1984).  In
determining if the defaulting party=s factual
assertions are controverted, the court looks to all
the evidence in the record.  Evans,
889 S.W.2d at 269.




In the instant case, appellant filed an affidavit indicating
her failure to answer was not intentional or the result of conscious
indifference, but was due to mistake. 
Appellant explained that when she received notice of appellee=s petition to
modify, she planned on setting an appointment with her attorney to deliver the
notice to him, but was unable to because of her work schedule.  Instead, appellant gave the notice and
petition to a co-worker, and instructed her to deliver the documents to
appellant=s attorney=s office.  Upon appellant=s return from a business trip, the
co-worker informed appellant that she had delivered the notice.  Appellant did not think any further action
was needed.  
Appellant=s attorney also
attached an affidavit to her motion for new trial.  He stated that after he found a default
judgment had been taken against appellant, he discovered someone had delivered
the notice to his office.  The notice was
delivered while he was out of town and was inadvertently placed in appellant=s old
file.  It had not been brought to the attorney=s attention.




Appellee filed a
response to appellant=s motion for
new trial with an attached affidavit that controverts some of appellant=s claims.  Appellee
controverts appellant=s assertion
that she filed suit against appellee to establish
paternity and order child support. 
However, appellee does not controvert
appellant=s factual
allegations regarding her failure to answer. 
See Evans, 889 S.W.2d at 269 (holding non-movant
did not specifically controvert the statement of movant=s belief); Moody,
830 S.W.2d at 85 (same); see also Young v. Kirsch, 814 S.W.2d 77, 80
(Tex. App.BSan Antonio
1991, no writ) (Awhere factual
allegations in a movant=s affidavits as to conscious
indifference are not controverted. . . .@) (emphasis
added).  Appellee
also attempts to controvert appellant=s assertions by
questioning what she failed to do.  For
instance, appellee questions why appellant never
called her attorney, or why she Athought so
little of the petition that she sent a co-worker to deliver it instead of
making a personal appearance.@  These questions are not relevant because they
do not controvert the factual assertions that the notice was delivered to
appellant=s attorney=s office and
that it was inadvertently misplaced. A[T]he test for
determining whether a new trial should be granted is the parties= intentional
failure or conscious indifference, rather than mere acts of negligence.@  Miller, 903 S.W.2d 45, 48 (Tex. App.BTyler 1995, no
writ); see O=Hara v. Hexter, 550 S.W.2d 379, 382 (Tex. Civ. App.BDallas 1977,
writ ref=d n.r.e.).  We conclude
appellant=s factual
assertions negating an intentional failure to answer or conscious indifference
were not controverted.  Therefore, appellant has satisfied the first
prong of Craddock.  
C.  Meritorious Defense




To satisfy the second prong of the Craddock test, the
defaulting party must set up a meritorious defense by alleging facts,
supported by an affidavit or other evidence, which in law would constitute a
defense to the cause of action pled by the plaintiff.  See McMurrey,
858 S.W.2d at 392; Lowe v. Lowe, 971 S.W.2d 720, 724 (Tex. App.BHouston [1st
Dist.] 1998, pet. denied).  A meritorious
defense is one that, if proven, would cause a different result on the
retrial of the case.  Gen. Elec.
Capital Auto Fin. Leasing Servs. v. Stanfield,
No. 12-00-00367-CV, 2000 Tex. App. LEXIS 8706, at *13 (Tyler July 11, 2000,
pet. denied).  A party is not required to
prove the truth of a meritorious defense before the party is entitled to a new
trial.  Id.  The court should not deny the motion on
the basis of any contradictory evidence that is offered by the opposing
party.  See Evans, 889 S.W.2d at
270; Stanfield, 2000 Tex. App. Lexis 8706, at *14; Jackson v Mares,
802 S.W.2d 48, 51 (Tex. App.BCorpus Christi
1990, writ denied).
This second prong is difficult to apply in a suit affecting the
parent-child relationship where the primary issue before the court is the best
interest of the child.  See Lowe,
971 S.W.2d at 724-727.  Nonetheless, some
factors to be considered in determining the best interest of the child include:

(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 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.
 
See
Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976); Lowe, 971 S.W.2d at
724.




In this case, appellant alleges it would not be in the best
interest of A.P.P. for appellee to have joint
managing conservatorship.  Appellant states that she has been the sole
managing conservator of A.P.P. and has had possession of her since her
birth.  She also states that she has made
arrangements for A.P.P. to attend a private parochial school.[2]  Because one of the factors in determining a
child=s best interest
includes the stability of the home, see Holley, 544 S.W.2d at 372, we
find these facts are some evidence that, if proven at trial, would entitle
appellant to retain sole managing conservatorship.  See McMurrey,
858 S.W.2d at 392; Lowe, 971 S.W.2d at 724.  Therefore, appellant set up a meritorious
defense and satisfied the second prong of the Craddock test.
D.  Delay or Injury
To satisfy the third prong of the Craddock test,
appellant must establish that the granting of her motion for new trial would
not occasion a delay or otherwise work an injury to appellee.  See Craddock, 133 S.W.2d at 126; Helle, 48 S.W.3d at 801.  In determining whether delay or injury will
occur to the plaintiff, the court considers whether the movant
has offered to reimburse the non-movant for the costs
involved in obtaining a default judgment and whether the defendant is ready,
willing, and able to go to trial.  See
Angelo v. Champion Rest. Equip. Co., 713 S.W.2d 96, 98 (Tex. 1986).




In the instant case, appellant claimed that a new trial would
neither delay nor prejudice appellee.  She also stated she is ready for trial and is
ready and willing to reimburse appellee for all
reasonable expenses incurred in obtaining the default judgment.  Having alleged that the granting of a new
trial will not injure appellee, the burden shifts to appellee.  See
Evans, 889 S.W.2d at 270.  Appellee, however, has failed to offer any evidence of
injury or delay.  Because appellee has failed to rebut appellant=s showing of no
injury, appellant has satisfied the third prong of the Craddock test.  See id.; Cliff v. Huggins, 724
S.W.2d 778, 779 (Tex. 1987). 
Accordingly, her first issue is sustained.[3]

III.  CONCLUSION
Because appellant has satisfied all three elements of the Craddock
test, we find the trial court abused its discretion in overruling appellant=s motion for
new trial and in failing to set aside the default judgment.  See Evans, 889 S.W.2d at 268.  Accordingly, we reverse the judgment of the
trial court and remand this case for trial on the merits.         
NELDA
V. RODRIGUEZ
Justice
 
Publish.
Tex.
R. App. P.
47.3.
 
Opinion delivered and
filed
this 2nd day of May,
2002.
 




[1]When
the facts underlying a default judgment are disputed, the trial court may, but
is not required to, make findings in support of its ruling.  See Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 940 (Tex. App.BAustin
1987, no writ).  


[2]Although
appellee attempted to controvert this statement and
an additional statement about forcing appellee to pay
child support in a previous suit, a meritorious defense is set up by the facts
alleged by appellant in her motion and affidavit, regardless of whether or not
the facts are controverted.  See Dir., State Emps.
Workers= Comp. Div. v.
Evans, 889 S.W.2d 266, 270 (Tex. 1994).


[3]Because
of our disposition of the first issue, we need not address the remaining
issues.  See Tex. R. App. P. 47.1.


