                  In the
             Court of Appeals
     Second Appellate District of Texas
              at Fort Worth
          ___________________________
               No. 02-18-00299-CV
          ___________________________

IN THE INTEREST OF T.F., T.F., AND T.F., CHILDREN



       On Appeal from the 233rd District Court
               Tarrant County, Texas
           Trial Court No. 233-624922-17


        Before Gabriel, Birdwell, and Bassel, JJ.
       Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Rita Ford1 appeals the trial court’s denial of her motion for new trial,

seeking relief from the trial court’s default order entered against her and in favor of

appellee Chris Ford after she failed to appear for a hearing. The order addressed

conservatorship of their children, child- and medical-support obligations, and

visitation. Rita argues that the trial court abused its discretion by denying her motion

for new trial because she provided evidence that her failure to appear was caused by

an adverse reaction to newly prescribed medications, that she had a meritorious

defense, and that a new hearing would not cause delay or prejudice Chris. Chris does

not respond to these arguments.        We conclude that Rita’s evidence sufficiently

showed that she was entitled to a new hearing; thus, the trial court abused its

discretion by failing to grant her motion.

                                 I. BACKGROUND

                          A. MARRIAGE AND SEPARATION

      Rita and Chris married in January 2001 and they had three children together:

twins born in 2001 and a third child born in 2002. On October 30, 2011, Chris was

arrested and charged with disorderly conduct and assault causing bodily injury to a

family member—Rita. Rita immediately moved out of their home, taking the children

with her. The children have continuously lived with Rita since 2011, but Rita and

      1
        We use fictitious names to refer to the parties to protect the involved minors’
identities. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8 cmt.

                                             2
Chris apparently never divorced and remain separated. Rita lives in Grand Prairie,

and Chris lives in Mansfield.

      In 2012, Rita filed for Chapter 7 bankruptcy protection. In 2013, Chris pleaded

guilty to the disorderly-conduct charge and was assessed a $500 fine. Chris pleaded

not guilty to the assault charge, and the trial court adjudged him not guilty of this

offense.2

                           B. ATTORNEY GENERAL’S SUIT

      On August 29, 2017, the Texas Attorney General filed a suit affecting the

parent-child relationship (SAPCR), requesting that the trial court appoint

“appropriate” possessory conservators, establish a child-support order, and order

Chris to produce documents “that will show the nature and extent of his ability to pay

child support.”3 See Tex. Fam. Code Ann. §§ 102.007, 153.005. The trial court set a

hearing on the attorney general’s petition for January 4, 2018. On December 27,

2017, Rita, appearing pro se,4 filed a petition to intervene in the attorney general’s

SAPCR and sought appointment as the children’s sole managing conservator. Chris,


      Rita later incorrectly asserted to the trial court that Chris had pleaded nolo
      2

contendere to the assault.
      3
       Apparently in an earlier, separate SAPCR action, Chris was ordered to pay
spousal maintenance and child support, but our record does not include this order or
any specific information about the nature of this separate action.
      4
       The trial court took judicial notice that Rita is a licensed attorney in Texas. See
Tex. R. Evid. 201.

                                            3
appearing through counsel, filed a counterpetition on January 2, 2018, also seeking

sole managing conservatorship. He pleaded in the alternative for appointment either

as a joint managing conservator with the right to designate the children’s primary

residence or as a joint managing conservator with an altered, standard possession

schedule. See id. § 153.317. He also asked that the trial court order Rita to pay child

and medical support.

       On January 3, 2018, Rita sought to proceed without the payment of court costs

and notified the court that she received food stamps and Medicaid, was a self-

employed attorney earning $900 per month, and had had a stroke on December 28,

2017. See Tex. R. Civ. P. 145. That same day, the court signed an ex parte temporary

restraining order finding that “there [was] a clear and present danger that [Chris

would] attempt to . . . remove” the children and that Rita’s “parental right to

possession and access [would] be immediately and irreparably harmed.” The court

allowed Rita to intervene in the attorney general’s child-support action and granted

Rita “exclusive possession” of the children. The trial court further ordered Rita and Chris

to appear for a show-cause hearing on January 17, 2018.

       On January 17, the trial court reset the hearing “FOR FINAL TRIAL ON

THE MERITS” for March 27, 2018. The attorney general’s representative, Chris, and

Chris’s counsel signed the order; Rita did not sign the order, indicating that she had

not appeared for the hearing. The order specifically warned that a failure to appear

for the March 27 court date “may result in a default order or capias” and that the case
                                            4
would be reviewed for dismissal for want of prosecution. The next day—January

18—Chris’s counsel sent Rita a certified letter, notifying her that the case had been set

for final trial on the merits on March 27 and attaching a copy of the trial court’s

January 17 order. On February 1, the trial court signed a notice of final trial, which

had been prepared by Chris’s counsel and which again notified the parties that “[t]he

final trial of this case” would be on March 27. The notice stated that it should be

served on Rita at her home in Grand Prairie. It appears that Rita was discharged from

bankruptcy protection in February 2018.

      On March 27, both Rita and Chris appeared, and the trial court entered

temporary orders that named them joint managing conservators of the children. See

Tex. Fam. Code Ann. § 105.001. The trial court found that Chris had “a duty of

support” for the children and ordered Rita to enroll the children in a governmental

medical-assistance program or health plan. The trial court set the next hearing for

June 27.

      Rita failed to appear for the subsequent June 27 child-support hearing, and the

trial court found her in default. The trial court took judicial notice that Rita was a

licensed attorney and that she had called “the court coordinator for the other court”

that day. Chris testified that he sought joint managing conservatorship with the sole

rights to designate the children’s primary residence and to make educational and

medical decisions for the children. He further requested that Rita be awarded the

statutory, standard possession schedule. He testified that Rita was unemployed and
                                           5
made no specific request for child- or medical-support payments; he did ask that the

children remain on Medicaid. He believed that each request was in the children’s best

interest. After Chris’s attorney informed the court that Rita had been a licensed

attorney since 1995 and was in good standing with the Texas bar, the trial court

determined that it would “at least set child support based on a gross of 75,000 a year.

And set the nine percent per guidelines for both current support to begin July 1st,

2018.”

         That same day, the trial court entered an order, noting that Rita had not

appeared and appointing Rita and Chris joint managing conservators of the children.

The trial court found that Rita had a duty of support and designated Chris as the

conservator with the exclusive rights to designate the children’s primary residence in

Tarrant County and to consent to any invasive medical procedure. The trial court

awarded Rita a standard possession schedule. See id. § 153.316. The trial court

ordered Rita to pay Chris $1,318 in child support each month and authorized income

withholding from Rita’s earnings. See id. §§ 154.007, .125; see also id. § 154.066

(allowing trial court to determine obligor is intentionally underemployed and to set

support based on earning potential). Chris was ordered to enroll the children in a

governmental medical-assistance or health plan and to maintain that enrollment; Rita

was ordered to pay medical support, as additional child support, of $562.50 per

month. See id. §§ 154.181–.182. Finally, the trial court entered injunctive relief as


                                          6
Chris had requested. The trial-court clerk notified Rita of the June 27 order. See Tex.

R. Civ. P. 306a.3.

                            C. MOTION FOR NEW TRIAL

      On July 26, Rita filed a motion for new trial, arguing that the default should be

set aside because her failure to appear was not consciously indifferent but was due to

an accident, because she had a meritorious defense, and because a new trial would not

prejudice Chris or cause delay. In her attached affidavit, Rita stated that she had been

prescribed “three prescription[s] for blood pressure” on June 26 and purchased four

prescriptions that same day.5     The next morning, Rita took each of the four

medications before she left for court and had an adverse reaction:

      On the morning of June 27, 2018 I took each of the four
      (4) prescriptions. On the way to court for the *:30 am hearing I began
      to feel light headed due to a drop in blood pressure. I phone[d] the
      court to advise the court that I was too light headed to drive to Fort
      W[or]th due to an adverse reaction to the new prescriptions.

Rita averred that her “failure to appear was not due to conscious indifference but

rather to an excusable medical condition and illness due to an adverse reaction to

prescription medication prescribed due to three (3) strokes within six months.” Rita

also attached to her motion the attorney general’s report showing that the office had

received no child-support payments for the children as of July 25. She attached

written statements from each of the children, who were over the age of twelve at that

      5
       Rita attached a receipt dated June 26, showing that Rita had picked up four
prescriptions from her pharmacy.

                                           7
time, showing their desire to continue living with Rita. See Tex. Fam. Code Ann.

§ 153.009. Chris did not file a response. The trial court did not rule on the new-trial

motion; thus, it was overruled by operation of law. See Tex. R. Civ. P. 329b(c); cf. Cecil

v. Smith, 804 S.W.2d 509, 510–12 (Tex. 1991) (recognizing “presentment” of new-trial

motion not necessary in civil cases).

      Rita filed a notice of appeal from “all portions” of the June 27 order. See Tex.

Fam. Code Ann. § 109.002(a), (b). She now argues that the trial court abused its

discretion by denying her motion for new trial, by granting Chris the right to designate

the children’s primary residence, by granting Chris injunctive relief, and by calculating

Rita’s child-support obligation. Chris has not filed a brief on appeal.

       II. ENTITLEMENT TO NEW HEARING AFTER DEFAULT

                                    A. STANDARD

      The order at issue was entered as a result of Rita’s default. We review a trial

court’s failure to grant a motion for new trial for an abuse of discretion. See Cliff v.

Huggins, 724 S.W.2d 778, 778 (Tex. 1987). Ordinarily, the right to a new trial after a

default is governed by an established, three-part test—the Craddock test—which gives

a trial court no discretion to deny a new-trial motion if the test is met. Craddock v.

Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm’n Op.] 1939). Thus, a new

trial is mandatory if (1) the defendant’s failure to answer before judgment was not

intentional or the result of conscious indifference on the defendant’s part, but was

due to a mistake or accident; (2) the motion for new trial set up a meritorious defense;
                                            8
and (3) the motion was filed at a time when its granting would not result in a delay or

otherwise injure the plaintiff. Id. The Craddock test also applies to a post-answer

default judgment entered when a party fails to appear at a trial setting. See Dir., State

Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994); Elite Towing, Inc.

v. LSI Fin. Grp., 985 S.W.2d 635, 642 (Tex. App.—Austin 1999, no pet.). The

supreme court has applied Craddock in SAPCR cases. See, e.g., In re R.R., 209 S.W.3d

112, 114–15 (Tex. 2006) (per curiam).6

                                   B. APPLICATION

                1. Intentional or Consciously-Indifferent Conduct

      The first Craddock prong is satisfied if Rita’s factual assertions, taken as true,

“negate intentional or consciously indifferent conduct” and if these factual assertions

are not controverted by Chris. Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012).

In general, “some excuse, although not necessarily a good one, will suffice to show

that [Rita’s] failure to [appear] was not because [she] did not care.” R.R., 209 S.W.3d

at 115. Here, Rita offered an excuse that was not controverted and, taken as true,

      6
        Intermediate appellate courts, including this court, have noted that the
Craddock test, specifically the second prong, is ill-suited to SAPCR cases because it
fails to expressly consider the best interest of the affected children, which is the
overriding consideration in any SAPCR determining conservatorship, possession, and
access. See Tex. Fam. Code Ann. § 153.002; Dorrough v. Cantwell, No. 2-05-208-CV,
2006 WL 2034016, at *6 (Tex. App.—Fort Worth July 20, 2006, pet. denied) (per
curiam mem. op.); Comanche Nation v. Fox, 128 S.W.3d 745, 749–50 (Tex. App.—
Austin 2004, no pet.); Lowe v. Lowe, 971 S.W.2d 720, 725–26 (Tex. App.—Houston
[14th Dist.] 1998, pet. denied). And while we recognize the tension between the
Craddock test and the broad discretion courts have in determining a child’s best
interest, we continue to be bound by the test. See Comanche Nation, 128 S.W.3d at 750.
                                           9
negated intentional or consciously indifferent conduct on her part. See, e.g., Anderson v.

Anderson, 282 S.W.3d 150, 154 (Tex. App.—El Paso 2009, no pet.); cf. In re E.P.C.,

No. 02-10-00050-CV, 2010 WL 5187691, at *3 (Tex. App.—Fort Worth Dec. 23,

2010, no pet.) (mem. op.) (holding wife failed to meet first prong because she

provided no evidence supporting her claim that her failure to appear was due to

emergency surgery and pain medications). Chris failed to dispute Rita’s proffered

excuse, which was supported by her affidavit.              Accordingly, Rita sufficiently

established that her failure to appear was not intentional or due to conscious

indifference. See R.R., 109 S.W.3d at 115–16; Kelley v. Sweeney, No. 10-04-00233-CV,

2005 WL 2300350, at *2 (Tex. App.—Waco Sept. 21, 2005, no pet.) (mem. op.);

McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.—Austin 1997, pet. denied). See

generally Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994) (per curiam) (“If

the factual assertions in the defendant’s affidavits are not controverted, the defendant

satisfies his or her burden if the affidavits set forth facts that, if true, negate intent or

conscious indifference.”).

                                2. Meritorious Defense

       A meritorious defense is one that, if proven, would cause a different result on

the retrial of the case, although it need not be a totally opposite result. See Comanche

Nation, 128 S.W.3d at 751. In her motion, Rita argued that she had a meritorious

defense regarding the children’s best interest: (1) the children had been living

exclusively with her since 2011; (2) the trial court had awarded her “exclusive possession”
                                             10
of the children six months earlier after finding that Chris posed a clear and present

danger to Rita’s custody; (3) Chris had not paid child support even though ordered to

do so; and (4) the children, all older than twelve, voiced their preference for remaining

with Rita. Chris has disputed none of these facts. We conclude Rita’s uncontroverted

facts raised a meritorious defense on the issue of the children’s best interest that

should be considered by the trial court in the first instance. See id. at 751–52; see also

R.R., 209 S.W.3d at 115–16.

                                3. Delay or Prejudice

      Finally, Rita must show that a new hearing would not cause delay or injury to

Chris. Although Rita asserts in a conclusory manner that a new hearing would cause

Chris no prejudice and would not delay the case, Chris has not controverted this

assertion. Once Rita asserted no delay or prejudice, it was Chris’s burden to show any

injury or delay. See R.R., 209 S.W.3d at 116; Comanche Nation, 128 S.W.3d at 752.

Because Chris failed to do so, Rita has met this prong of the Craddock test.

                                 III. CONCLUSION

      Rita met each of the three parts of the Craddock test, showing her entitlement to

a new hearing on the issues addressed in the June 27 SAPCR order. As such, the trial

court abused its discretion by denying her motion for new trial. We sustain Rita’s first

issue. We need not address Rita’s remaining issues directed to the substance of the

order. See Tex. R. App. P. 47.1. Accordingly, we reverse the trial court’s June 27,


                                           11
2018 order and remand the case to the trial court for further proceedings. See Tex. R.

App. P. 43.2(d), 43.3(a).


                                                    /s/ Lee Gabriel

                                                    Lee Gabriel
                                                    Justice

Delivered: May 9, 2019




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