in the Matter of the Marriage of Grace Wu and Simon Mong Hsiang and in the Interest of K.H., a Child

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-13-00327-CV
IN THE MATTER OF THE MARRIAGE OF GRACE WU
AND SIMON MONG HSIANG AND IN THE INTEREST OF K.H., A CHILD
On Appeal from the 364th District Court
Lubbock County, Texas
Trial Court No. 2011-559,731, Honorable Bradley S. Underwood, Presiding
June 30, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
This appeal arises from a default judgment in a divorce suit entered against
appellant Grace Wu. Wu appeals from the trial court’s order denying her motion for new
trial, arguing (1) that proper notice of the final hearing date was not given; and (2) the
elements for a new trial after a post-answer default were established. We will affirm the
judgment of the trial court.
Background
In 2011, Wu petitioned for divorce from appellee Simon Mong Hsiang. Wu and
Hsiang have one minor child, born in 1996. At the time of the final hearing, the child,
although still a minor, was attending college. Their other child was an adult at the time
of the final hearing.
The final hearing was originally scheduled for a day in April 2013. Both parties
appeared at that time and agreed to postpone the final hearing until certain records and
documents had been exchanged. After leaving the courtroom, both counsel “spoke with
the court coordinator to reschedule the hearing. The court coordinator stated that May
29, 2013 was available for the hearing and that she would hold that date.” No written
notice confirming the May 2013 date appears in the record.
The parties engaged in correspondence regarding the exchange of the requested
documents. The documents from Hsiang were sent by his attorney to Wu’s attorney on
May 28, 2013. The attorneys did not discuss the final hearing that was to take place the
following day. Hsiang appeared with counsel and testified at the hearing. Wu did not
appear.1 At the conclusion of the hearing, the trial court granted the divorce. The court
signed the final decree in July 2013.
1
At the outset of the final hearing, after noting Wu’s failure to appear, the trial court stated, “The
record will reflect that my understanding is that the attorneys had this set, and the attorneys got with the
court coordinator and set today's date at 1:15 for a final hearing.” The reporter’s record of the final
hearing shows the court coordinator attempted to contact Wu’s counsel by telephone but was
unsuccessful. The hearing began at 2:02.
2
Wu timely filed a motion for new trial, which the trial court denied after a hearing.
This appeal followed.
Analysis2
Notice of Final Hearing
Wu initially argues she did not receive proper notice of the May 29, 2013 hearing.
A party who appears in the case is entitled to notice of a trial setting as a matter of due
process. LBL Oil Co. v. Int'l Power Servs., Inc., 777 S.W.2d 390, 391 (Tex. 1989) (per
curiam); Bradford v. Bradford, 971 S.W.2d 595, 597 (Tex. App.—Dallas 1998, no pet.).
Civil rule 245 provides in part that “when a case previously has been set for trial,
the Court may reset said contested case to a later date on any reasonable notice to the
parties or by agreement of the parties.” Tex. R. Civ. P. 245.
It is generally presumed that a trial court hears a case only after notice has been
given to the parties, so the obligation to affirmatively show the lack of notice or non-
compliance with rule 245 lies with the complainant. Campsey v. Campsey, 111 S.W.3d
767, 771 (Tex. App.—Fort Worth 2003, no pet.). A written order is not required when
the record establishes that counsel for each party had adequate notice of the date set
for trial. Guerra v. Alexander, No. 04-09-0004-CV, 2010 Tex. App. LEXIS 4115, at *13
(Tex. App.—San Antonio May 26, 2010, pet. ref’d) (mem. op.) (citing Tewell v. Tewell,
599 S.W.2d 351, 354 (Tex. Civ. App.—Corpus Christi 1980, writ ref'd)). Rule 245 does
2
Hsiang asserts Wu waived her appellate issue because she failed to reference the appellate
record in making her argument. While we agree Wu has failed to present proper citations to the record,
see Tacon Mechanical Contractors v. Gant Sheet Metal, 889 S.W.2d 666, 671 (Tex. App.—Houston [14th
Dist.] 1994, writ denied), we will nevertheless address Wu’s contentions.
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not specify how much notice must be given with regard to reset dates in order for the
notice to be reasonable. Guerra, 2010 Tex. App. LEXIS 4115 at *13.
It is undisputed that counsel for both parties, after their agreement to reset the
final hearing, went to the court coordinator together, and that the coordinator gave them
a hearing date and time for the final hearing. Wu’s motion for new trial asserted her
counsel’s position that he understood the date was tentative, related to the uncompleted
discovery. Hsiang opposed the new trial motion, asserting the hearing date was not
tentative but was the agreed-upon date and time for the hearing. At the new trial
hearing, the court heard from both counsel. Given counsel’s conflicting versions of their
agreement, we will not second-guess the trial court’s implicit finding that Wu failed to
demonstrate a lack of notice of the final hearing or non-compliance with rule 245.
Accordingly, we cannot agree she has shown a violation of her due process rights.
Craddock v. Sunshine
Wu next contends she was entitled to a new trial because she satisfied the
elements necessary for such entitlement. We review the trial court's denial of a motion
for new trial for an abuse of discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006);
Ricks v. Ricks, 169 S.W.3d 523, 526 (Tex. App.—Dallas 2005, no pet.). A court abuses
its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules and
principles. Id.; Loehr v. Loehr, No. 13-08-00380-CV, 2009 Tex. App. LEXIS 6863, at *6
(Tex. App.—Corpus Christi Aug. 28, 2009, no pet.) (mem. op.). A trial court does not
abuse its discretion if there is some evidence of a substantive and probative character
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to support its decision. Garza v. Garza, 217 S.W.3d 538, 549 (Tex. App.—San Antonio
2006, no pet.).
Craddock, 133 S.W.2d at 126, has been applied to divorce proceedings.3 See
Prince v. Prince, 912 S.W.2d 367, 369-70 (Tex. App.—Houston [14th Dist.] 1995, no
writ); Burgess v. Burgess, 834 S.W.2d 538, 539 (Tex. App.—Houston [1st Dist.] 1992,
no writ); cf. Little v. Little, 705 S.W.2d 153, 153-54 (Tex. App.—Dallas 1985, writ dism'd)
(stating that although the Craddock test is applicable to motions for new trial after a
default judgment in a divorce action, it may be superceded by the best interest of the
child test).
The test set out in Craddock contains three prongs, each of which a defaulting
party must satisfy. The new trial movant must: (1) present facts showing that the failure
to appear was not intentional or the result of conscious indifference but was due to
accident or mistake; (2) set up a meritorious defense; and (3) file the motion for new trial
when it would not cause delay or otherwise injure the prevailing party. Craddock, 133
S.W.2d at 126.
We will address the second prong, requiring that Wu set up a meritorious
defense. A meritorious defense is one that, if ultimately proved, will cause a different
result when the case is tried again. State Farm Life Ins. Co. v. Mosharaf, 794 S.W.2d
578 (Tex. App.—Houston [1st Dist.] 1990, writ denied) (citing The Moving Co. v. Whitten,
717 S.W.2d 117, 120 (Tex. App.—Houston [14th Dist.] 1986, writ ref’d n.r.e.)); see
3
Generally, a post-answer default judgment occurs when a defendant who has answered fails to
appear for trial. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979). Here, the parties filed counter-
petitions in the divorce proceeding.
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O’Connell v. O’Connell, 843 S.W.2d 212, 218 (Tex. App.—Texarkana 1992, no writ)
(citing Mosharaf in family law case). The movant is not required to prove her defense
conclusively to satisfy the meritorious defense element, but must allege facts which in
law would constitute the meritorious defense and support the motion with affidavits or
other evidence establishing prima facie the existence of the meritorious defense. Ivy v.
Carrell, 407 S.W.2d 212, 214 (Tex. 1966).
Wu’s assertions in her motion for new trial involve the division of the community
property and the allocation of debt. She specifically states objections to the court’s
valuation of the homestead and to its order that each party bear responsibility for debt
the party incurred after the filing of the initial divorce petition.
The final decree awarded the homestead to Hsiang. He testified that the marital
property should be divided equally, and expressed his agreement to pay Wu her half of
the value of the homestead within thirty days of the final decree. He further testified that
an appraiser had placed a value on the homestead of about $250,000, and that the
Lubbock County Appraisal District valuation was about $40,000 higher. The appraiser’s
valuation was lower, he said, because the appraiser had deducted for some damage to
the house. He testified also that their insurance company had issued checks for the
damage and that Wu’s signature was needed on the checks. The final decree set the
value of the homestead at $259,000.
The trial court also heard evidence concerning the parties’ debts, Wu’s education
and earning capacity and the fact Wu’s student loan debt had been paid. Hsiang
testified to his willingness to assume all the couple’s debt except for a Discover card
6
account. At the close of the hearing, the judge stated, “The divorce is granted. The
Petitioner's request is granted. The 50/50 split is great with the Court.”
Wu’s new trial motion expressed no disagreement with the award of the
homestead to Hsiang nor to the payment to her of half its value. Her affidavit instead
asserted that the $259,000 value was “incorrect. The actual value of the home is
$299,356.00. This amount is the value set forth by the Lubbock County Appraisal
District which I believe to be a more accurate reflection of the actual value of the
home.”4
With regard to the allocation of debt, Wu’s affidavit states the decree’s
requirement that she pay all debts in her name incurred after the filing of the divorce
petition means that she is “wrongly” required to pay $14,000 for charges on the
Discover card account which she used “to purchase items necessary for the
maintenance and operation of the home, including the purchase of food, clothing and
other items necessary for the support of the child, myself and [Hsiang] during the
pendency of the divorce, while [Hsiang] and I lived together with the child."
A trial judge is charged with dividing the community estate in a "just and right"
manner, considering the rights of both parties. TEX. FAM. CODE ANN. § 7.001 (West
2006); Moroch v. Collins, 174 S.W.3d 849, 855 (Tex. App.—Dallas 2005, pet. denied).
The court has broad discretion in making the just and right division. Murff v. Murff, 615
S.W.2d 696, 698-99 (Tex. 1981); Boyd v. Boyd, 131 S.W.3d 605, 610 (Tex. App.—Fort
4
Wu further asserted that $10,000 in proceeds from insurance on the homestead should either
be divided equally or added to the overall value of the home rather than awarded to Hsiang. Wu appears
to contend the trial court awarded the insurance proceeds to Hsiang. We do not read the court’s
judgment as doing so.
7
Worth 2004, no pet.). The record here shows the trial court heard evidence regarding
both the homestead valuation and the parties’ debts. It also shows the trial court took
pains to ensure that Wu received half the value of the homestead. The evidence
presented in Wu’s affidavit may be contrasted with that the court found adequate to set
up a meritorious defense in Morris v. Morris, 717 S.W.2d 189 (Tex. App.—Austin 1986,
no writ). The motion for new trial there alleged that the property division in the divorce
decree was not in accord with the parties' agreement and that community assets both
parties intended to go to the husband, such as his retirement benefits, were not
mentioned in the decree but left undivided. Id. at 192; see Miller v. Miller, 903 S.W.2d
45, 48 (Tex. App.—Tyler 1995, no pet.) (motion for new trial alleged facts bearing on
conservatorship of children and property division, including allegations of husband’s
physical abuse, a subject almost certainly not explored at the trial at which wife was not
present and only the husband testified).
The court here was aware of the difference between the appraiser’s valuation of
the homestead and the appraisal district’s valuation, and Wu’s assertion that the
appraiser’s valuation is “incorrect” because she believed the appraisal district’s
valuation was more accurate merely presented her contrary view on a subject the court
already had considered. The court also heard testimony that the only debt allocated to
Wu was the Discover card account while Hsiang assumed the remaining debt. We see
no abuse of discretion in the trial court’s implicit conclusion that Wu’s assertion it was
wrong for her to be saddled with the Discover card account because both parties
benefitted from its charges failed to state facts which, if proven, would lead to a different
just and right division of property or allocation of debt on retrial. We thus see no abuse
8
of discretion in a conclusion that neither of Wu’s assertions set up a meritorious defense
warranting a new trial.
Accordingly, we find Wu has failed to satisfy the second Craddock prong and,
because Wu failed to establish each of the three Craddock factors, we resolve Wu’s
appellate issue against her. We affirm the judgment of the trial court.
James T. Campbell
Justice
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