in the Interest of D.Z. and E.Z., Children ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00203-CV
IN THE INTEREST OF D.Z. AND
E.Z., CHILDREN
----------
FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 322-550611-14
----------
MEMORANDUM OPINION 1
----------
Appellant V.C. (Mother) appeals from the trial court’s default judgment
adjudicating Appellee E.Z. (Father) the father of children D.Z. and E.Z.2,
awarding Father sole managing conservatorship of the children, and allowing her
visitation with the children only when Father agrees. In three issues, Mother
contends that the trial court erred by proceeding to trial without notice to her,
1
See Tex. R. App. P. 47.4.
abused its discretion by failing to grant her motion for new trial because she
satisfied the Craddock 2 standards, and abused its discretion by failing to provide
a specific possession order that can be enforced by contempt. Because we hold
that Mother’s post-citation written document filed with the trial court constitutes
an answer, we sustain her first issue, reverse the trial court’s judgment, and
remand this case for trial.
Father filed a petition to adjudicate paternity on January 30, 2014, and
Mother was served on February 11, 2014. The citation and return affidavit were
filed February 14, 2014. On March 5, 2014, Mother filed a handwritten document
with the trial court containing the following:
Cause #
322-550611-14
᷉ You may contact me at
[her phone number]
[her email address]
[her home address]
[Mother’s name]
There is no indication that she served the document on Father, and he
denied in the trial court that she gave him proper notice.
On March 11, 2014, Father proved up a default judgment. With regard to
Mother’s filed document, the trial court stated that while the filing constituted an
answer in the sense that it was a communication with the court, the trial court
2
Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124
(1939).
2
would not consider it to be a proper answer because it did not address anything
in the petition.
The trial court heard testimony by Father that Mother had not made
attempts to visit the two children in at least a year and a half. The trial court
rendered judgment adjudicating Father’s paternity, naming him sole managing
conservator, and awarding visitation as agreed between the parties. The trial
judge specifically stated that there was “just cause for this visitation order
because the Mother ha[d] not visited her children [in] over one and a half years.”
Mother obtained counsel and filed a motion for new trial due to “the
discovery of new evidence relevant to custody and possession” and on the
ground that failure to file a proper answer was an “honest mistake.” During the
hearing on Mother’s motion for new trial, Father’s attorney admitted to having
had actual notice of the document Mother filed before rendition of the default
judgment:
Yeah. I . . . knew about it when I got to court, and that was—it’s in
my response to the new trial as well. I put that I was not noticed of
it. When we came to court, we did see it that day. We saw there
was no affirmative pleadings or anything, so we went forward
with the default—
I’m sorry[]
—and that’s—that’s where we are. [Emphasis added.]
The trial court denied the motion (1) because it was not verified and
(2) because the trial court held that the reason Mother had cited for not
responding to the pleadings—an honest mistake—was an inadequate reason as
3
it did not satisfy statutory requirements for a new trial. Mother then filed a notice
of appeal and subsequently filed her brief. Father did not file a brief.
In her first issue, Mother contends that the trial court erred by proceeding
to trial without notice to her. We agree. As we explained in Travis v. Coronado, 3
The United States Supreme Court directs us to hold pro se
pleadings “to less stringent standards than formal pleadings drafted
by lawyers.” Further, Texas law favors allowing liberal amendment
of pleadings and giving litigants the chance to cure pleading defects
whenever possible. [Finally], Texas law abhors default judgments.
As the San Antonio Court of Appeals has pointed out,
Traditionally any sort of appearance will defeat a
default. Indeed, the courts have gone to great lengths
to excuse defects in answers to prevent the entry of
default judgments against parties who have made some
attempt, albeit deficient, unconventional, or flat out
forbidden under the Rules of Civil Procedure, to
acknowledge that they have received notice of the
lawsuit pending against them. This is proper because
of the unfair outcome that can result from a default.
....
Default judgments are designed to promote
efficiency in disposing of cases where the defendant
shows no interest in the adjudication of the cause, either
by failing to answer a lawsuit or appear for trial on the
merits in the cause.
....
It makes sense that to grant a default judgment
against a defendant where the defendant has attempted
to acknowledge or dispute a pending lawsuit is
inconsistent with the judicial goals default judgment
seeks to further. The furtherance of these goals justifies
3
No. 02-03-00023-CV, 2004 WL 221227 (Tex. App.—Fort Worth
Feb 5 , 2004, no pet.) (mem. op.).
4
Texas courts’ interpreting any kind of written response
in such a way to elevate it to the level of an answer.
....
Texas courts are willing to bend over backward to
call something that is not an answer an answer to
prevent inequity or injustice in the context of a default
judgment. 4
The document Mother filed is dated after the date of the return of citation.
It contains three ways to contact her and what appears to be her signature.
Following Travis, we hold that this document constitutes an answer. 5
As we further explained in Travis,
When an answer has been filed, well-established law forbids
entering a default judgment against a defendant who has received
no notice of trial. A trial court’s failure to comply with the rules of
notice in a contested case deprives a party of his constitutional right
to be heard, resulting in a fundamental due process violation. If the
respondent does not have notice of the trial setting as required by
rule 245, the default judgment should be set aside. 6
Mother’s answer was filed March 5, 2014, it did not concede any issues,
and the prove-up hearing was held six days later, only forty days from the date
the petition was filed. Thus, the record demonstrates the impossibility of
Mother’s receiving the required forty-five days’ notice of trial. 7 Because the trial
4
Id. at *1–2 (citations omitted).
5
See id. at *2.
6
Id. (citations omitted).
7
See Tex. R. Civ. P. 245.
5
court failed to give Mother notice of trial, 8 we sustain her first issue, which is
dispositive, and we do not reach her remaining issues. 9
Having sustained Mother’s dispositive issue, we reverse the trial court’s
judgment and remand this case for trial.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: May 21, 2015
8
See id.; Travis, 2004 WL 221227, at *2.
9
See Tex. R. App. P. 47.1.
6