Carina Ribeiro Zappavigna v. Joseph Zappavigna

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-11-00472-CV
CARINA RIBEIRO ZAPPAVIGNA APPELLANT
V.
JOSEPH ZAPPAVIGNA APPELLEE
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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. Introduction
In one issue, Appellant Carina Ribeiro Zappavigna, pro se, appeals the
trial court’s denial of her motion for a new trial. We affirm the trial court’s
judgment.2
1
See Tex. R. App. P. 47.4.
2
Although Carina’s pro se brief fails to meet several requirements of rule of
appellate procedure 38.1, including failing to make a clear and concise argument
with citations to authority, see Tex. R. App. P. 38.1(i), we address the merits of
II. Background Facts
Appellee Joseph Zappavigna and Carina were marred in Portugal in 2000,
had two children, and moved to Texas in 2006. In November 2009, Carina
traveled back to Portugal with the children. The parties dispute whether she was
to remain in Portugal or return after the end of the year, but Carina and the
children never returned from Portugal.
Joseph filed for divorce, and although he attempted service on Carina in
Portugal, Carina did not answer or appear. The trial court granted the divorce in
September 2010.
Carina filed a motion for a new trial and appeared via telephone at the
hearing on her motion. She was represented by counsel at the hearing. The trial
court granted Carina’s motion, finding that she was properly served before the
prior default judgment, that the trial court had jurisdiction over the case, and that
property division and child custody issues remained. At a subsequent temporary
orders hearing, the trial court named both parties joint managing conservators,
ordered Joseph to pay $25,000 to Carina’s attorney and to pay child support, and
ordered Carina to deliver the children to Joseph for summer vacation.
With trial set for October 17, 2011, Carina’s attorney filed an unopposed
motion to withdraw on September 29, 2011, citing Carina’s inability to pay due to
her claim in the interest of justice. See Avila v. Avila, No. 03-05-00030-CV, 2006
WL 2986225, at *3 n.3 (Tex. App.—Austin Oct. 20, 2006, no pet.) (mem. op.)
(noting that an appellate court may address the merits of an appeal despite
inadequate briefing).
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Joseph’s failure to pay court-ordered attorney’s fees as the ground for the
motion. The trial court granted the motion to withdraw.
Carina neither obtained new counsel nor appeared at the final trial, and the
trial court again granted the divorce. Carina filed a motion for a new trial, and the
trial court denied her motion. Carina failed to appear at the hearing on her
motion. This appeal followed.
III. Motion for New Trial
In her only issue, Carina appeals the denial of her motion for new trial.
A. Standard of Review
“We review a trial court’s refusal to grant a motion for new trial for abuse of
discretion.” Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009);
see also Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). A
trial court abuses its discretion if it acts without reference to any guiding rules or
principles, that is, if the 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). We cannot conclude that a trial court abused its discretion merely
because we would have ruled differently in the same circumstances. E.I. du Pont
de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low,
221 S.W.3d at 620.
A trial court also abuses its discretion by ruling without supporting
evidence. Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an
abuse of discretion does not occur when the trial court bases its decision on
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conflicting evidence and some evidence of substantive and probative character
supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.
2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
Under Craddock, a trial court should set aside a default judgment and
grant a new trial when (1) the movant’s failure to appear “was not intentional, or
the result of conscious indifference . . . , but was due to a mistake or an
accident”; (2) the motion “sets up a meritorious defense”; and (3) granting the
motion “will occasion no delay or otherwise work an injury to the plaintiff.” See
133 S.W.2d at 126.
Because the best interest of the child is the primary concern in cases
involving parental rights, see Tex. Fam. Code Ann. § 153.002 (West 2008), “the
court should ensure that it is as well informed as the circumstances allow. . . .
[A]nd technical rules of pleading and practice are not of controlling importance.”
In re E.P.C., No. 02-10-00050-CV, 2010 WL 5187691, at *1 (Tex. App.—Fort
Worth Dec. 23, 2010, no pet.) (mem. op.) (citing Williams v. Williams, 150
S.W.3d 436, 446 (Tex. App.—Austin 2004, pet. denied)).
B. Discussion
Carina claims that the trial court erred by denying her motion for new trial
because her absence was excused due to her attorney’s withdrawal seventeen
days before trial. In her motion for new trial, Carina stated that she failed to
appear because she was forced to allow her attorney to withdraw when Joseph
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failed to pay her attorney’s fees and she could not otherwise afford to retain
counsel.
A defaulting party must provide some excuse for failing to appear that is
supported by some evidence. Id. at *2. Proof of adequate justification—such as
accident, mistake, or other reasonable explanation—is required to negate intent
or conscious indifference. Metro A, LLC v. Polley, No. 02-09-00025-CV, 2011
WL 4413233, at *8 (Tex. App.—Fort Worth Sept. 22, 2011, pet. denied) (mem.
op.) (citing Smith v. Babcock & Wilcox Constr. Co., 913 S.W.2d 467, 468 (Tex.
1995)). We consider Carina’s knowledge and acts when determining whether
her failure to appear at the final trial was intentional or due to conscious
indifference. See Green Tree Servicing, LLC v. Travis Cnty., No. 03-10-00709-
CV, 2011 WL 3890408, at *3 (Tex. App.—Austin Aug. 31, 2011, no pet.) (mem.
op.).
The record shows that Carina knew as early as September 5, 2011—forty-
five days before trial—that her attorney was going to file a motion to withdraw.
Indeed, Carina edited the motion and fully consented to it. Further, the record
shows that Carina knew of the trial date but did not contact the trial court
regarding her inability to attend or attempt to secure new counsel. These facts
demonstrate an intentional or conscious failure to appear, not a mistake or
accident. See E.P.C., 2010 WL 5187691, at *3 (holding that appellant’s failure to
respond to her attorney’s withdrawal notice or to inform the trial court that she
could not attend trial reflected intentional or conscious indifference); Fountain v.
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Fountain, No. 03-03-00728-CV, 2005 WL 121865, at *3 (Tex. App.—Austin Jan.
21, 2005, no pet.) (mem. op.) (holding that appellant failed to meet the first
Craddock requirement when she failed to appear at trial, contact the court, or
attempt to find a new attorney even though her attorney withdrew only five days
before trial and appellant alleged that she was incarcerated at the time);
O’Connell v. O’Connell, 843 S.W.2d 212, 217–18 (Tex. App.—Texarkana 1992,
no writ) (affirming trial court’s denial of appellant’s motion for new trial when
appellant had previously filed four motions for continuance, was aware of the trial
setting, and wrote the judge a letter explaining that she could not appear due to
her desperate financial situation, was temporarily out of state, and needed time
to hire a new attorney.) Therefore, we overrule Carina’s sole issue and need not
reach her remaining arguments.3 See Tex. R. App. P. 47.1.
3
Nonetheless, we note that although Carina asserts that the evidence she
attached to her motion for a new trial proves that she has a meritorious defense,
aside from facts and allegations related to events that occurred after the hearing
on Carina’s first motion for new trial, including unpaid child support and attorney’s
fees, and the parties’ argument over video conference arrangements, Carina
offered no new evidence, and many of the facts alleged in Carina’s motion are
conclusory and not supported by the evidence that she attached. See Anderson
v. Anderson, 282 S.W.3d 150, 155 (Tex. App.—El Paso 2009, no pet.) (“The true
test is whether or not the defense raised and supported with evidence would
change the result of the default judgment.”); see also Green Tree Servicing, 2011
WL 3890408, at *4 (holding that conclusory allegations alone are insufficient to
set up a meritorious defense). Those that are supported by the attached
evidence fail to raise a defense that if proved would change the result of the
default judgment. See In re Marriage of Gonzalez, No. 07-02-00528-CV, 2005
WL 354290, at *2–3 (Tex. App.—Amarillo Feb. 14, 2005, no pet.) (mem. op.)
(holding that appellant’s unsupported claim that the trial court wrongly divested
him of a separate property contribution claim failed to set up a meritorious
defense); cf. Anderson, 282 S.W.3d at 155 (holding that appellant raised a
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IV. Conclusion
Having overruled Carina’s sole issue, we affirm the trial court’s judgment.
BOB MCCOY
JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and GABRIEL, JJ.
DELIVERED: March 28, 2013
meritorious defense by claiming in her affidavit that her separate property was
erroneously awarded to appellee); Miller v. Miller, 903 S.W.2d 45, 48 (Tex.
App.—Tyler 1995, no pet.) (holding that appellant set up a meritorious defense
by alleging that she should have been appointed managing conservator and
offering evidence of specific acts of physical violence to support her allegation).
Further, considering the final decree in light of the best interest of the child
standard applicable here, we note that this decree is more consistent with this
state’s policy favoring frequent parent-child contact and the appointment of
parents as joint managing conservators than the first decree. See Tex. Fam.
Code Ann. §§ 153.001(a), .002, .131(b) (West 2008); see also Comanche Nation
v. Fox, 128 S.W.3d 745, 750 (Tex. App.—Austin 2004, no pet.) (advocating
liberal application of Craddock with a view to the best interest of the child in suits
affecting the parent-child relationship). Specifically, the child custody provisions
of the first decree named Joseph as sole managing conservator and granted
Carina only supervised visitations in Texas. The second decree, however,
named both parents joint managing conservators and granted Carina
unsupervised visitation, provided she posts a bond, including the ability to take
the children to Portugal.
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