               In the
          Court of Appeals
  Second Appellate District of Texas
           at Fort Worth
       ___________________________
            No. 02-18-00090-CV
       ___________________________

IN THE INTEREST OF R.F. AND S.F., CHILDREN



     On Appeal from the 431st District Court
             Denton County, Texas
        Trial Court No. 2009-50631-367


     Before Kerr, Pittman, and Womack, JJ.
    Memorandum Opinion by Justice Pittman
                          MEMORANDUM OPINION

                                  I. Introduction

      In two issues, pro se appellant Father appeals the trial court’s order denying his

motions to set aside a default judgment. We affirm.

                                  II. Background

      Father and Mother divorced on March 10, 2011. Two years later, Father was

held in criminal contempt by the trial court because he had violated one of the

divorce decree’s provisions, and the trial court assessed $7,500 in attorney’s fees

against Father.1

      On October 17, 2017, Mother filed a petition to modify the parent-child

relationship with regard to R.F. and S.F., and a hearing on temporary orders was set

for December 20, 2017. Father did not answer.

      On December 14, 2017, the Honorable Brody Shanklin, judge of the 211th

Judicial District Court of Denton County, heard and granted Mother’s request for a

default judgment, finding in his order that Father, “although duly and properly cited,

did not appear and wholly made default.”

      1
        The trial court’s 2013 order in the parties’ suit affecting parent-child
relationship (SAPCR) modified the divorce decree’s terms on possession of and
access to the children and child support, appointed a parenting facilitator, ordered
Mother and Father to complete a parallel parenting/conflict resolution course,
ordered the children to participate in a minimum of 12 twice-monthly counseling
sessions, and ordered Father to participate in a minimum of 12 counseling sessions at
least twice monthly with a licensed psychologist or professional counselor specializing
in marriage and family therapy and anger management.

                                           2
       Four days after Judge Shanklin signed the default judgment against him, Father

filed a form pro se motion to set it aside. Line 5 of the form states, “The default

judgment should be set aside due to: (Check box 5a or box 5b.)” Box 5a covers lack

of notice. The person completing the form can indicate by checking a box that he

“did not file an answer because [he] was not properly served with citation” or that he

“filed an answer but did not appear at the hearing because [he] did not receive proper

notice of the hearing.”      Under the two check box options in 5a, the person

completing the form is asked to state specific facts that show how the failure to file an

answer or failure to appear at the hearing was due to improper service or improper

notice of the hearing. Father did not check any of the boxes under 5a or write in any

explanation with regard to notice.2

       Box 5b covers accident or mistake. See Craddock v. Sunshine Bus Lines, Inc., 133

S.W.2d 124, 126 (Tex. [Comm’n Op.] 1939) (stating that a default judgment should be

set aside and a new trial ordered when (1) the defendant’s failure to answer before

judgment was not intentional or the result of conscious indifference on his part but


       2
         We note that to withstand a direct attack on a default judgment based on
improper service, the party obtaining the default judgment has the burden to show
that it strictly complied with the rules for service of citation. Ins. Co. of State of Pa. v.
Lejeune, 297 S.W.3d 254, 256 (Tex. 2009); Primate Constr., Inc. v. Silver, 884 S.W.2d 151,
152 (Tex. 1994) (per curiam); cf. Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d
571, 574 (Tex. 2006) (explaining that the critical question is why the defendant did not
appear and that if the answer is “I got the suit papers but then . . . ,” the default
judgment should be set aside only if the defendant proves the three Craddock
elements).

                                             3
was due to accident or mistake; (2) the motion for new trial sets up a meritorious

defense; and (3) the motion is filed “at a time when the granting thereof will occasion

no delay or otherwise work an injury to the plaintiff”). Father checked box 5b and

indicated that he did not file an answer because of accident or mistake rather than

intentional or conscious indifference, stating in the space provided on the form,

             I apologize for making a mistake in not filing a response to the
      court in 20 days. I thought signing for the document was the re[s]ponse
      that I would be at the hearing on December 20th 2017 at 1:30pm. I was
      fully prepared to present all my facts and evidence on that day. My
      former attorney . . . told me he was no longer handling family law cases
      and he did not tell me I needed to send a response to the court before
      the Dec. 20th hearing date. He had handled all such hearing requests for
      the many court hearings in the past. I thought I just had to prepare for
      Dec. 20th and didn’t realize another hearing could be called if I didn’t
      actual[ly] send in a written response. I apologize again for my mistake
      and would like a hearing to set aside the judgment in this matter.

The form expressly states, “If you checked 5b, you must also complete 5b(1).” 5b(1)

states, “I have a meritorious (good) defense to this case: (State specific facts.)” See id.

Father left this portion of the form blank.

      Over 30 days after the trial court signed the default judgment, Father hired

counsel who filed a “Motion for Leave of Court to File Supplemental Motion to Set

Aside Default Judgment.” In the motion, Father’s counsel noted that the trial court

had discretion to consider an untimely amended motion for new trial within its

plenary power. To the motion, Father’s counsel attached a “Supplemental Motion to




                                              4
Set Aside Default Judgment” that complied with Craddock3 and attached evidence in

support of the motion.

      Mother responded and filed special exceptions to Father’s pro se motion and to

his motion for leave of court to file supplemental motion to set aside default

judgment, arguing that the supplemental motion was untimely, and complaining that

Father’s December 18, 2017 pro se motion should be denied. Mother attached emails

between the court coordinator and the parties’ attorneys, the September 15, 2017

letter from her counsel to Father about the modification order, a September 20, 2017

letter from an attorney representing Father, who declined her invitation to enter into

the requested modification, and the record of the December 14, 2017 default

judgment hearing.

      The day after Mother specially excepted and responded, Father’s counsel filed

an “Amended Motion for Leave of Court to File Amended Motion to Set Aside

Default Judgment,” raising the same “meritorious defense” arguments set out in his

earlier supplemental motion.

      On February 22, 2018, the Honorable Jonathan Bailey, judge of the 431st

Judicial District Court of Denton County, took judicial notice of the entire contents


      3
       Father’s counsel raised “meritorious defense” arguments in the supplemental
motion but did not complain that the 211th court lacked jurisdiction to enter the
default judgment. Father’s counsel also stated that he was “willing to reimburse
[Mother] for the cost of the default judgment . . . [and] further tender reasonable costs
and expenses incurred by reason of this motion.”

                                           5
of the court’s file and heard Father’s “Motion to Set Aside Default Judgment” and

“Amended Motion for Leave of Court to File Amended Motion to Set Aside Default

Judgment.” During the hearing, Father’s attorney conceded that the trial court had to

deny Father’s timely filed pro se form motion in which he had failed to state his

meritorious defense, and Judge Bailey accordingly denied the motion, stating, “I don’t

think there is any question the original motion to set aside was fundamentally and

fatally flawed.”

       Father’s attorney argued that if Father were allowed to proceed on his amended

motion to set aside the default judgment, he “would have to present evidence

pertaining to what transpired, what the meritorious defense is, et cetera.”         And

Mother’s attorney contended that she was not prepared for an evidentiary hearing.

Judge Bailey acknowledged that “[a]rguments concerning whether the Court should

grant leave to file an amended motion are certainly ripe.” He also acknowledged that

whether he should grant a new trial sua sponte was also ripe and indicated a

willingness to hear argument on both issues.4 Before the parties took a recess,

Mother’s attorney reminded Judge Bailey of the parties’ history, stating,

       This is the same stuff that happened last time. It’s all sanctionable
       activity. And I believe he was doing the same thing all over again, delay
       purposely, not doing it with any mistake or indifference, he knows
       better. I believe it was conscious, no matter who he brings in to testify.

       Mother’s counsel informed Judge Bailey that he had let Judge Shanklin “know
       4

what was going on,” and said that “there was a sign on the door that said all default
prove-ups” were in Judge Shanklin’s court that day.

                                           6
      Even if it comes out of his own mouth, I’ve seen it and heard it, and so
      has Your Honor. So I ask that it be denied. I ask that you not
      reconsider it and give leave. If you’re going to, I ask that I receive
      attorney’s fees and we then set a date and we will go to trial.

Father’s attorney responded by presenting argument, but no evidence, asserting that

Father was prepared to pay child support and the expense of obtaining the default

judgment but not all of the expenses that had been incurred by Mother, and that she

would discuss the outstanding attorney’s fee sanction with Father “so that he does

properly have clean hands.”

      After the recess, Father’s counsel offered to pay the outstanding 2013 order of

sanctions in the amount of $7,500 plus Mother’s attorney’s fees necessitated by his

motion to set aside the default judgment in the amount of $3,000 if a new trial were

granted. Mother’s attorney responded that with interest, the sanctions were over

$9,037.40 and the attorney’s fees for the default judgment and new trial proceedings

were over $3,500. Judge Bailey concluded the hearing by stating, “Okay. Motion is

denied. Y’all are dismissed.” On March 7, 2018, Judge Bailey signed an “Order on

Motion to Set Aside Default Judgment” that denied Father’s December 18, 2017 pro

se motion, and he signed an “Order on Amended Motion for Leave of Court to File

Amended Motion to Set Aside Default Judgment” that denied Father’s February 16,

2018 amended motion for leave. Father then filed a pro se notice of appeal.




                                         7
                                   III. Discussion

      In his first issue, Father asks us to determine

      Whether the trial court erred in denying [Father] a child custody hearing
      in front of Honorable Judge Jonathan Bailey 431st District and denied a
      Motion to Set Aside Judgment after [Mother] unknowingly [sic] and
      without notice changed original jurisdiction to 211[th] District Court
      before Honorable Judge Brody Shanklin on December 14, 2017 before a
      known child custody hearing scheduled in the 431st District Court on
      December 20, 2017[5] to get a judgement [sic] without any evidence or
      testimony from [Father].

In his second issue, Father asks whether his due process rights under the Fifth and

Fourteenth Amendments of the United States Constitution were violated when he

was denied a child custody hearing in front of Judge Bailey.

      We construe Father’s issues as a complaint that the trial court denied his pro se

motion and his amended motion for leave of court to file an amended motion to set

aside the default judgment, as the record reflects that these were the trial court’s two

rulings. We overrule the remainder of his arguments because Judge Bailey, as the

judge of the trial court with continuing, exclusive jurisdiction, considered these

motions.6


      5
       The record reflects that the December 20, 2017 hearing was a temporary
orders hearing, not a final trial.
      6
        This case does not involve the case’s transfer from one court to another, and
by denying Father’s motions, Judge Bailey essentially ratified Judge Shanklin’s default
judgment for Mother. Compare Tex. Const. art. 5, § 11 (“And the District Judges
may . . . hold courts for each other when they may deem it expedient.”), and Tex.
Gov’t Code Ann. § 24.003(b)(2) (providing that a district judge may hear and
determine any case or proceeding pending in another district court in the county
                                          8
      We review a trial court’s denial of a motion for new trial for an abuse of

discretion, and the trial court’s ruling will not be disturbed on appeal in the absence of

a showing of an abuse of discretion. Cliff v. Huggins, 724 S.W.2d 778, 778 (Tex. 1987);

see Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). We likewise

review for an abuse of discretion a trial court’s ruling on other motions. See, e.g., King

Fisher Marine Serv., L.P. v. Tamez, 443 S.W.3d 838, 843 (Tex. 2014) (stating that “[t]rial

courts have ‘inherent power to control the disposition of cases with economy of time

and effort for itself, for counsel, and for litigants’” (quoting Dow Chem. Co. v. Francis,

46 S.W.3d 237, 240 (Tex. 2001) (internal quotation omitted))); Joe v. Two Thirty Nine

Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004) (“When reviewing a trial court’s order


without having the case transferred), (c) (providing that if a district judge in the
county is sick or otherwise absent, another district judge in the county may hold court
for the judge), with In re S.H., No. 13-18-00240-CV, 2018 WL 4624720, at *1, *5 (Tex.
App.—Corpus Christi–Edinburg Sept. 27, 2018, no pet.) (mem. op.) (declaring void
the 343rd District Court of Bee County’s 2017 order terminating father’s parental
rights under chapter 262 when the 36th District Court of Bee County had continuing,
exclusive jurisdiction based on a 2004 SAPCR under chapter 155, there was no
transfer order, and the exchange-of-benches doctrine did not apply), In re L.S., 557
S.W.3d 736, 739–40 (Tex. App.—Texarkana 2018, no pet.) (holding, after abatement
for an evidentiary hearing, that an order terminating father’s parental rights to L.S. by
a Harrison County court was void when a Gregg County court still had continuing,
exclusive jurisdiction in matters connected with L.S.); In re C.G., 495 S.W.3d 40, 44
(Tex. App.—Corpus Christi–Edinburg 2016, pet. denied) (discussing SAPCR
transfers from one county to another under family code chapter 155); Celestine v. Dep’t
of Family & Protective Servs., 321 S.W.3d 222, 227 (Tex. App.—Houston [1st Dist.]
2010, no pet.) (stating that although the family code contains a unique provision
giving a court continuing and exclusive jurisdiction over matters involving the welfare
of a child upon the rendition of a final order in a SAPCR, “this does not preclude the
application of the exchange-of-benches doctrine in such cases”).

                                            9
denying a motion for continuance, we consider whether the trial court committed a

clear abuse of discretion on a case-by-case basis.”); Carpenter v. Cimarron Hydrocarbons

Corp., 98 S.W.3d 682, 686 (Tex. 2002) (op. on reh’g) (“We review a trial court’s ruling

on a motion for leave to file a late summary-judgment response for an abuse of

discretion.”); In re Allstate Vehicle & Prop. Ins. Co., 549 S.W.3d 881, 893 (Tex. App.—

Fort Worth 2018, orig. proceeding) (holding that the trial court did not abuse its

discretion by denying motion to compel appraisal based on trial court’s inherent

authority to control its own docket). A trial court abuses its discretion if it acts

without reference to any guiding rules or principles—that is, if its act is arbitrary or

unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134

S.W.3d 835, 838–39 (Tex. 2004); see also Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).

       With regard to Father’s pro se motion, the three-prong test set out in Craddock

is the guiding rule that trial courts must follow to determine whether to grant a

motion for new trial. Cliff, 724 S.W.2d at 779. “When a defaulting party moving for

new trial meets all three elements of the Craddock test, then a trial court abuses its

discretion if it fails to grant a new trial.” Dolgencorp of Tex., Inc., 288 S.W.3d at 926.

       Based on the Craddock test, the trial court did not abuse its discretion by

denying Father’s pro se motion for new trial because Father failed to set forth a

meritorious defense, one of the required elements.7 See Craddock, 133 S.W.2d at 126;


       Father also did not assert in his pro se motion that he had received no notice
       7

of the default judgment hearing, although he complains of that fact on appeal. When
                                          10
see also Dolgencorp of Tex., Inc., 288 S.W.3d at 926. We overrule this portion of Father’s

two issues.

      Further, the record does not reflect that Judge Bailey abused his discretion by

denying Father’s motion for leave to file the amended motion to set aside default

judgment because the amended motion was untimely, see Tex. R. Civ. P. 329b(b),8 and

Judge Bailey was already familiar with the parties’ history and behavior, including—as

he termed it—the “competing equities.” See Tex. R. Civ. P. 320 (stating that new

trials may be granted for good cause “on the court’s own motion on such terms as the

court shall direct”). He took judicial notice of the entire contents of the court’s file,

and both parties acknowledged that Father still owed payment on an outstanding




a party who has answered receives no notice of a trial setting, he satisfies the first
prong of Craddock and need not meet the remaining two. C.H. v. S.L., No. 02-16-
00386-CV, 2018 WL 4925318, at *8 (Tex. App.—Fort Worth Oct. 11, 2018, no pet.)
(mem. op.). But a defendant who does not file an answer or who has not otherwise
appeared in the case is not entitled to notice of a default judgment proceeding. Tex.
R. Civ. P. 239; Sedona Pac. Hous. P’ship v. Ventura, 408 S.W.3d 507, 512 (Tex. App.—El
Paso 2013, no pet.).
      8
        Under rule of civil procedure 329b(b), one or more amended motions for new
trial may be filed without leave of court before any preceding motion for new trial
filed by the movant is overruled and within 30 days after the judgment or other order
complained of is signed. Tex. R. Civ. P. 329b(b). The default judgment was signed
on December 14, 2017, and Father timely filed his pro se motion for new trial on
December 18, 2017. However, his attorney did not seek permission to file a
supplemental motion until February 9, 2018, 57 days after the judgment was signed.

                                           11
sanction for his conduct in 2013.9 And he lectured Mother’s counsel about taking the

default judgment, stating, “Let me be blunt, counsel. There is nothing improper

about what you did. It is perfectly permissible to do what you did. But I do agree it is

underhanded.” The record accordingly reflects that Judge Bailey did not act arbitrarily

and unreasonably or without reference to guiding principles but rather considered

everything before him before denying the motion for leave to file the amended

motion.10 See Iliff, 339 S.W.3d at 78; Low, 221 S.W.3d at 614. Accordingly, we overrule

the remainder of Father’s two issues.

                                    IV. Conclusion

      Having overruled both of Father’s issues, we affirm the trial court’s judgment.


                                                       /s/ Mark Pittman
                                                       Mark Pittman
                                                       Justice

Delivered: June 13, 2019


      9
       Father contends in his brief that he subsequently paid Mother’s attorney the
attorney’s fees assessed in the 2013 sanction, but we are confined to the record before
us.
      10
         The supreme court has recited that while a court may look to an untimely
motion or amended motion for new trial for guidance in the exercise of its inherent
power, “‘if the court denies a new trial, the belated motion is a nullity and supplies no
basis for consideration upon appeal of grounds which were required to be set forth in
a timely motion.’” Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003) (quoting Kalteyer v.
Sneed, 837 S.W.2d 848, 851 (Tex. App.—Austin 1992, no writ) (citing 4 Roy W.
McDonald, Texas Civil Practice in District and County Courts, § 18.06.02, at 287 (Frank W.
Elliott ed., rev. ed. 1984))).

                                           12
