in the Interest of B.Q.S., III, a Child

Opinion filed June 26, 2014
In The
Eleventh Court of Appeals
__________
No. 11-13-00043-CV
__________
IN THE INTEREST OF B.Q.S., III, A CHILD
On Appeal from the 158th District Court
Denton County, Texas
Trial Court Cause No. 2012-20640-158
MEMORANDUM OPINION
Wendy M., Appellee, is the mother of B.Q.S., III, a child. Wendy filed a
petition to adjudicate parentage in which she asked the trial court to adjudicate that
Brent S., Appellant, is the child’s father. Wendy served Brent with the petition,
but he did not answer the petition. After a hearing, the trial court entered a default
order of parentage against Brent. The trial court adjudicated Brent a parent of the
child, and it ordered, among other things, Brent to pay Wendy child support and
retroactive child support. Brent filed a motion for new trial. After a hearing, the
trial court entered an order denying the motion. Brent has filed this appeal. We
reverse and remand.
Background
Wendy filed her petition to adjudicate parentage on August 10, 2012. She
alleged in the petition that the child was born in New Orleans, Louisiana, on
December 31, 1996. She stated that service of process could be had on Brent in
New Orleans, Louisiana. Wendy requested in the petition that she be appointed a
joint managing conservator of the child with the exclusive right to designate the
primary residence of the child. Wendy also requested the trial court to enter
appropriate orders related to access to the child, allocation of the rights and duties
of the conservators, and child support, including retroactive child support.
Brent was served with Wendy’s petition on August 20, 2012, at his New
Orleans address. He did not file an answer to the petition. On October 2, 2012, the
trial court held a default judgment hearing. Wendy testified at the hearing. She
said that Brent was the child’s father. Wendy also said that she was aware that
Brent made over $330,000 per year. After the hearing, the trial court entered its
order of parentage in which it adjudicated Brent the father of the child, appointed
Wendy and Brent as joint managing conservators of the child, provided for
visitation of the child, and ordered Brent to pay Wendy child support of $1,500 per
month and retroactive child support of $90,000.
On November 8, 2012, Brent filed a motion for new trial, and on
November 13, 2012, he filed an amended motion for new trial. Brent asserted that
he was entitled to a new trial because he had satisfied the Craddock 1 elements for
obtaining a new trial. On November 14, 2012, the trial court signed an order
granting Brent’s motion for new trial.
On November 16, 2012, Brent filed, in a single document, a special
appearance, a plea to the jurisdiction, a request for the trial court to decline
jurisdiction, and an original answer to Wendy’s petition to adjudicate parentage.
1
Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939).
2
The trial court set the special appearance and plea to the jurisdiction for hearing on
December 18, 2012. At the hearing, the trial court announced that it had signed the
order granting Brent’s motion for new trial on November 14, 2012. Wendy’s
counsel responded by stating that he had not received notice of a hearing on the
motion for new trial or of the trial court’s order granting the motion. The trial
court acknowledged that it had mistakenly signed the order. Wendy’s counsel
agreed to file a motion to set aside the order. The trial court indicated that it would
grant the motion to set aside the order and that the parties could then have a
hearing on Brent’s motion for new trial. The trial court did not conduct a hearing
on Brent’s special appearance and plea to the jurisdiction.
Wendy’s counsel subsequently filed a motion to set aside the order granting
the motion for new trial. The trial court entered an order granting the motion, and
it scheduled Brent’s motion for new trial for hearing on January 2, 2013. Brent
testified by telephone at the hearing. Wendy also testified. After the testimony,
the trial court heard arguments from counsel as to whether Brent had satisfied the
Craddock elements for a new trial. On January 22, 2013, the trial court entered an
order denying Brent’s motion for new trial. Brent has filed this appeal.
Issues Presented
Brent presents three issues for review. In his first issue, he contends that the
trial court erred when it entered its order of parentage because the trial court lacked
personal jurisdiction over him and because the trial court lacked subject-matter
jurisdiction over the case. In his second issue, Brent contends that the trial court
erred when it ordered him to pay retroactive child support because the evidence at
the default judgment hearing was insufficient to support the award of retroactive
child support. In his third issue, Brent contends that the trial court erred by failing
to grant his motion for new trial because he satisfied the Craddock requirements
for a new trial.
3
Jurisdictional Issues
We first address Brent’s contention that the trial court lacked personal
jurisdiction over him. Brent challenged the trial court’s personal jurisdiction over
him in his special appearance. Unlike subject-matter jurisdiction, a lack of
personal jurisdiction may be waived. Arnold v. Price, 365 S.W.3d 455, 458 (Tex.
App.—Fort Worth 2011, no pet.); McGuire v. McGuire, 18 S.W.3d 801, 804 (Tex.
App.—El Paso 2000, no pet.). A defendant who attempts to enter a special
appearance to challenge a court’s jurisdiction must strictly comply with Rule 120a
of the Rules of Civil Procedure in order to avoid making a general appearance.
TEX. R. CIV. P. 120a; Landry v. Daigrepont, 35 S.W.3d 265, 267 (Tex. App.—
Corpus Christi 2000, no pet.).
Rule 120a contains due-order-of-pleading and due-order-of-hearing
requirements. See First Oil PLC v. ATP Oil & Gas Corp., 264 S.W.3d 767, 776
(Tex. App.—Houston [1st Dist.] 2008, pet. denied). Specifically, Rule 120a(1)
provides that a special appearance motion must be filed “prior to [a] motion to
transfer venue or any other plea, pleading or motion.” Rule 120a(2) provides that a
special appearance motion “shall be heard and determined before a motion to
transfer venue or any other plea or pleading may be heard.” A defendant who files
a special appearance must timely request a hearing, specifically bring that request
to the trial court’s attention, and secure a ruling on the preliminary question of
personal jurisdiction. Milacron Inc. v. Performance Rail Tie, L.P., 262 S.W.3d
872, 875–76 (Tex. App.—Texarkana 2008, no pet.). A defendant waives his
special appearance by not timely pressing for a hearing. Id. at 876. A special
appearance not ruled upon by the trial court presents nothing for review. Wilson v.
Chemco Chem. Co., 711 S.W.2d 265, 266 (Tex. App.—Dallas 1986, no writ).
In this case, Brent did not comply with the due-order-of-pleading
requirement or the due-order-of-hearing requirement of Rule 120a. He filed his
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motion for new trial, and the trial court entered an order granting the motion, albeit
mistakenly, before he filed his special appearance. Brent obtained a setting for a
hearing on his special appearance, and his counsel appeared for the hearing.
However, before the trial court heard the special appearance, the trial court
discovered that it had signed the order granting Brent’s motion for new trial. The
trial court did not conduct a hearing on the special appearance. Instead, the trial
court signed an order setting aside its order granting Brent’s motion for new trial.
The trial court then conducted a hearing on the motion for new trial and denied the
motion. The trial court ultimately did not rule on the special appearance.
Brent made a general appearance by filing and presenting argument on his
motion for new trial before his special appearance was determined. Landry, 35
S.W.3d at 267–68. Therefore, he waived his special appearance and his claim that
the trial court lacked personal jurisdiction over him.
Brent also challenges the trial court’s subject-matter jurisdiction. Subject-
matter jurisdiction is never presumed, cannot be waived, and can be raised at any
time. Alfonso v. Skadden, 251 S.W.3d 52, 55 (Tex. 2008); Tex. Ass’n of Bus. v.
Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993). Whether a court has
subject-matter jurisdiction is a question of law that we review de novo. Tex. Dep’t
of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex. 2004). To invoke the
trial court’s subject-matter jurisdiction, the party bringing the suit must allege facts
that affirmatively demonstrate that the court has jurisdiction to hear the case. Id. at
226; Tex. Air Control Bd., 852 S.W.2d at 446. We consider relevant evidence
submitted by the parties when necessary to resolve the jurisdictional issues raised.
Miranda, 133 S.W.3d at 227.
In this case, Wendy’s petition to adjudicate parentage included requests for
the trial court to make orders for the custody, conservatorship, and visitation of the
child. Subject-matter jurisdiction in child custody matters is determined by
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reference to the Uniform Child Custody Jurisdiction and Enforcement Act
(UCCJEA), which is set forth in Chapter 152 of the Texas Family Code. See TEX.
FAM. CODE ANN. §§ 152.001–.317 (West 2014); In re Dean, 393 S.W.3d 741, 746
(Tex. 2012); In re Milton, 420 S.W.3d 245, 270 (Tex. App.—Houston [1st Dist.]
2013, orig. proceeding). Section 152.201 of the Family Code provides the
exclusive jurisdictional basis for a Texas court to make a child custody
determination. In re Dean, 393 S.W.3d at 746.
Section 152.102(3) of the Family Code defines a “child custody
determination” as “a judgment, decree, or other order of a court providing for legal
custody, physical custody, or visitation with respect to a child.” Section
152.102(4) defines a “child custody proceeding” as “a proceeding in which legal
custody, physical custody, or visitation with respect to a child is an issue.” The
term “child custody proceeding” includes “a proceeding for divorce, separation,
neglect, abuse, dependency, guardianship, paternity, termination of parental rights,
and protection from domestic violence in which the [custody] issue may appear.”
FAM. § 152.102(4). Under Section 152.102, “legal custody” is defined as “the
managing conservatorship of a child”; “physical custody” is defined as “the
physical care and supervision of a child”; and “visitation” is defined as “the
possession of or access to a child.” Id. § 152.102(11), (14), (16). The term “initial
determination” is defined as “the first child custody determination concerning a
particular child.” Id. § 152.102(8).
In her petition, Wendy sought an initial determination concerning the
custody of the child. Under Section 152.201(a), a Texas court has subject-matter
jurisdiction to make an initial child custody determination only if:
(1) this state is the home state of the child on the date of the
commencement of the proceeding, or was the home state of the child
within six months before the commencement of the proceeding and
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the child is absent from this state but a parent or person acting as a
parent continues to live in this state;
(2) a court of another state does not have jurisdiction under
Subdivision (1), or a court of the home state of the child has declined
to exercise jurisdiction on the ground that this state is the more
appropriate forum under Section 152.207 or 152.208, and:
(A) the child and the child’s parents, or the child
and at least one parent or a person acting as a parent,
have a significant connection with this state other than
mere physical presence; and
(B) substantial evidence is available in this state
concerning the child’s care, protection, training, and
personal relationships;
(3) all courts having jurisdiction under Subdivision (1) or (2)
have declined to exercise jurisdiction on the ground that a court of this
state is the more appropriate forum to determine the custody of the
child under Section 152.207 or 152.208; or
(4) no court of any other state would have jurisdiction under the
criteria specified in Subdivision (1), (2), or (3).
Id. § 152.201(a).
Brent is a Louisiana resident. Section 152.209(a) of the Family Code
provides that, if a party to a child custody proceeding is not a Texas resident, “each
party, in its first pleading or in an attached affidavit, shall give information, if
reasonably ascertainable, under oath as to the child’s present address or
whereabouts, the places where the child has lived during the last five years, and the
names and present addresses of the persons with whom the child has lived during
that period.” In this case, Wendy did not provide the information required by
Section 152.209.
7
The trial court had jurisdiction over the child custody proceeding if Texas
was the child’s home state. Id. § 152.201(a)(1). As relevant to this case, a child’s
home state is “the state in which a child lived with a parent or a person acting as a
parent for at least six consecutive months immediately before the commencement
of a child custody proceeding.” Id. § 152.102(7). The date of the commencement
of the child custody proceeding is the reference point from which to determine the
child’s home state for the purpose of determining jurisdiction. In re Brown, 203
S.W.3d 888, 891 (Tex. App.—Fort Worth 2006, orig. proceeding); In re Oates,
104 S.W.3d 571, 577 (Tex. App.—El Paso 2003, orig. proceeding).
“Commencement” is defined as “the filing of the first pleading in a proceeding.”
FAM. § 152.102(5).
Wendy commenced this child custody proceeding on August 10, 2012, when
she filed her petition to adjudicate parentage. Accordingly, August 10, 2012, is the
reference point for determining the child’s “home state.” Wendy alleged in her
petition that the child was born in New Orleans, Louisiana. Wendy did not make
any allegations or provide any information as to where and with whom the child
had lived during his lifetime. Thus, Wendy’s allegations did not show that the
child had lived in Texas for the requisite six-month period before the case was
commenced. Wendy failed to meet her burden to allege facts that affirmatively
showed that the trial court had subject-matter jurisdiction over the child custody
proceeding.
Brent submitted an affidavit as an exhibit to his plea to the jurisdiction. In
the affidavit, Brent stated the addresses where the child had lived for the last five
years and also provided the names and addresses of the persons with whom the
child had lived during that time period. Brent stated that the child had lived with
Wendy in Texas from June 1, 2012, to October 26, 2012. Brent also stated that the
child had lived with him in New Orleans from August 1, 2011, to June 1, 2012.
8
Wendy’s testimony at the default judgment hearing was consistent with Brent’s
affidavit. According to Wendy’s testimony, the child attended school in New
Orleans during the 2011–2012 school year, and Wendy went to New Orleans to get
the child in the summer of 2012.
The record shows that the child had lived in Texas for less than three months
(June 1, 2012, to August 10, 2012) when Wendy commenced this proceeding. As
such, Texas was not the child’s “home state” for the purpose of determining
jurisdiction. The trial court did not have subject-matter jurisdiction of the child
custody proceeding under Section 152.201(a)(1). Wendy did not allege, nor did
the evidence show, that the trial court had subject-matter jurisdiction under Section
152.201(a)(2), (3), or (4). See FAM. § 152.201(a)(2), (3), (4). Thus, the record
does not show that the trial court had subject-matter jurisdiction of the child
custody proceeding.
As stated above, the trial court set a hearing on Brent’s special appearance
and his plea to the jurisdiction on December 18, 2012. At that time, the trial court
made statements indicating that it believed it had “home state” subject-matter
jurisdiction over the case because the child had then lived with Wendy in Texas for
more than six months. However, “home state” jurisdiction must be determined
based on the circumstances that existed on the date the suit was commenced. In re
Burk, 252 S.W.3d 736, 740 (Tex. App.—Houston [14th Dist.] 2008, orig.
proceeding); In re McCoy, 52 S.W.3d 297, 304–05 (Tex. App.—Corpus Christi
2001, orig. proceeding.). In this case, the trial court did not have subject-matter
jurisdiction when the suit was commenced. The trial court could not later acquire
jurisdiction when the child had lived in Texas for six months.
Brent’s first issue is sustained to the extent that he complains that the trial
court lacked subject-matter jurisdiction over the child custody proceeding aspect of
the case. The remainder of Brent’s first issue is overruled.
9
Child Support
Child support orders are specifically excluded from the definition of a “child
custody determination.” See FAM. § 152.102(3). Therefore, the trial court did not
lack subject-matter jurisdiction to decide the child support issues. In the default
order of parentage, the trial court ordered Brent to pay Wendy child support in the
amount of $1,500 a month and retroactive child support in the amount of $90,000.
Brent contends in his second issue that the evidence was insufficient to support the
trial court’s award of retroactive child support.
A trial court has discretion to set child support within the parameters
provided by the Texas Family Code. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
A trial court’s order of child support will not be disturbed on appeal unless the
complaining party can show a clear abuse of discretion. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990). A trial court abuses its discretion when it acts
without reference to guiding rules or principles. Iliff, 339 S.W.3d at 78; Worford,
801 S.W.2d at 109. Under the abuse-of-discretion standard, legal and factual
sufficiency challenges to the evidence are not independent grounds for asserting
error but are relevant factors to consider in assessing whether the trial court abused
its discretion. In re J.D.D., 242 S.W.3d 916, 920 (Tex. App.—Dallas 2008, pet.
denied.); Child v. Leverton, 210 S.W.3d 694, 696 (Tex. App.—Eastland 2006, no
pet.). We employ a two-pronged inquiry to determine whether legal or factual
sufficiency of the evidence has resulted in an abuse of discretion: (1) whether the
trial court had sufficient information upon which to exercise its discretion and
(2) whether the trial court erred in its application of discretion. Marquez v.
Moncada, 388 S.W.3d 736, 739 (Tex. App.—Houston [1st Dist.] 2012, no pet.);
Child, 210 S.W.3d at 696. A trial court does not abuse its discretion when there is
some evidence of a probative and substantive character to support its order.
10
Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th
Dist.] 2004, no pet.).
Wendy was the only witness at the default judgment hearing. Wendy
testified about Brent’s income as follows:
Q. Okay. Now, I’d like to ask you some questions regarding
his income. What kind of business is Mr. Smith in?
A. He’s a certified CPA.
Q. Okay. And you know he has had a very successful practice;
is that correct?
A. Very much so.
Q. And you’re aware that he makes over $330,000 per year; is
that correct?
A. Yes.
Q. Is he a specialized CPA of any kind, or does -- he has some
very large clients or what?
A. Yes, he has business and personal.
Q. Okay. And then -- and you have seen records of his which
indicate his income is over 330,000 a year; is that correct?
A. Yes.
Q. Well, and you’re asking the Court to set a child support
amount which is consistent with the Texas Family Code, the child
support guidelines, even though he makes an amount in excess of
$15,000 per month, correct?
A. Yes.
In Newberry, the trial court entered a default judgment that required the
appellant to pay $1,500 a month in child support. 146 S.W.3d at 234–35. In a
11
restricted appeal, the appellant challenged the sufficiency of the evidence to
support the child support award. Id. At the default judgment hearing, the appellee
provided the following testimony about the appellant’s income:
Q: Is it fair to say your husband makes $150,000 a year?
A: Yes.
Q: You are asking for [$]1500 in child support pursuant to [the]
Guidelines?
A: Yes.
Id. at 235. The court concluded that the appellee’s uncontroverted testimony
provided some evidence of a substantive and probative character to support the
trial court’s decision to order the appellant to pay $1,500 in child support per
month and that, therefore, the appellant had failed to show error on the face of the
record. Id. at 236.
In this case, Wendy’s testimony was similar in nature to the appellee’s
testimony in Newberry. Wendy’s testimony, like the appellee’s testimony in
Newberry, was very limited. Wendy answered two leading questions as to the
amount of Brent’s yearly income. Based on Wendy’s uncontroverted testimony,
the trial court ordered Brent to pay $1,500 a month in child support. Brent does
not challenge the sufficiency of the evidence to support the future child support
obligations. Instead, unlike Newberry, this case involves a sufficiency challenge to
an award of retroactive child support.
On a finding of parentage, a trial court may order retroactive child support as
provided in Chapter 154 of the Family Code. FAM. § 160.636(g).
Section 154.009(b) provides that, “[i]n ordering retroactive child support, the court
shall apply the child support guidelines provided by this chapter.” Section
154.131(a) provides that “[t]he child support guidelines are intended to guide the
12
court in determining the amount of retroactive child support, if any, to be ordered.”
Section 154.131(b) provides:
In ordering retroactive child support, the court shall consider
the net resources of the obligor during the relevant time period and
whether:
(1) the mother of the child had made any previous
attempts to notify the obligor of his paternity or probable
paternity;
(2) the obligor had knowledge of his paternity or
probable paternity;
(3) the order of retroactive child support will
impose an undue financial hardship on the obligor or the
obligor’s family; and
(4) the obligor has provided actual support or other
necessaries before the filing of the action.
At the default judgment hearing, Wendy testified that the child had lived
with Brent off and on over the past several years. Wendy said that the child had
gone to private school in New Orleans during the 2011–2012 school year and that
Brent had paid for the child’s school expenses. Wendy also provided the following
testimony:
Q. Okay. Now, [Brent] has provided some support over the
years; is that correct?
A. Not 100 percent.
Wendy also said that Brent had paid the child’s school expenses and other
expenses in the past. Wendy acknowledged that, based on what Brent had
provided, the child’s lifestyle had been “fabulous.” However, Wendy did not
provide any testimony as to the amount of actual support that Brent had provided
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over the years. Nor did Wendy provide any testimony that showed Brent’s net
resources over the relevant time period.
Wendy’s limited testimony at the default judgment hearing was insufficient
to support the trial court’s award of retroactive child support. The record shows
that Brent had provided significant actual support to the child in the past. The
child had lived with Brent off and on over the years. Because Wendy failed to
present evidence as to the amount of actual support or other necessaries that Brent
had provided the child in the past, we conclude that the trial court did not have
sufficient information upon which to exercise its discretion with respect to an
award of retroactive child support. The record lacks evidence of a substantive and
probative character to support the award. The trial court abused its discretion
when it ordered Brent to pay Wendy $90,000 in retroactive child support. Brent’s
second issue is sustained.
Trial Court’s Denial of Motion for New Trial
Brent contends in his third issue that the trial court erred when it denied his
motion for new trial because he met all the requirements of the Craddock test. We
review a trial court’s decision to deny a motion for new trial under an abuse of
discretion standard. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex.
2010). Under Craddock, a trial court must set aside a default judgment and grant a
new trial if (1) the failure of the defendant to answer before judgment was not
intentional or the result of conscious indifference, but was due to a mistake or an
accident; (2) the motion for new trial sets up a meritorious defense; and (3) the
granting of a new trial will not result in delay or otherwise injure the plaintiff. 133
S.W.2d at 126; see also In re R.R., 209 S.W.3d 112, 114–15 (Tex. 2006). When a
movant meets all three elements of the Craddock test, the trial court abuses its
discretion if it fails to grant a new trial. Dolgencorp of Tex., Inc. v. Lerma, 288
S.W.3d 922, 925 (Tex. 2009).
14
As to the first element of the Craddock test, consciously indifferent conduct
occurs when a defendant knew he was sued but did not care. Sutherland v.
Spencer, 376 S.W.3d 752, 755 (Tex. 2012); Fidelity & Guar. Ins. Co. v. Drewery
Constr. Co., 186 S.W.3d 571, 575–76 (Tex. 2006). This standard requires a
showing of more than mere negligence. Smith v. Babcock & Wilcox Constr. Co.,
913 S.W.2d 467, 468 (Tex. 1995). Generally, some excuse, although not
necessarily a good one, will suffice to show that a defendant’s failure to file an
answer was not because the defendant did not care. R.R., 209 S.W.3d at 115.
As to the second element of the Craddock test, a meritorious defense is one
that, if proved, would cause a different result upon a retrial of the case, although it
need not be a totally opposite result. Jaco v. Rivera, 278 S.W.3d 867, 873 (Tex.
App.—Houston [14th Dist.] 2009, no pet.); Ferguson & Co. v. Roll, 776 S.W.2d
692, 698 (Tex. App.—Dallas 1989, no writ). Setting up a meritorious defense does
not require proof “in the accepted sense.” Dolgencorp, 288 S.W.3d at 927–28
(quoting Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966)). Rather, the motion sets
up a meritorious defense if it alleges facts that in law would constitute a defense to
the plaintiff’s cause of action and if the motion is supported by affidavits or other
evidence providing prima facie proof that the defendant has such a defense. Id. If
these requirements are met, controverting evidence offered by the nonmovant
should not be considered. Id.
As to the third element of the Craddock test, the defendant must represent
that granting the motion for new trial will not cause delay or otherwise injure the
plaintiff. Estate of Pollack v. McMurrey, 858 S.W.2d 388, 393 (Tex. 1993); In re
Adams, 416 S.W.3d 556, 562 (Tex. App.—Tyler 2013, orig. proceeding). This
representation shifts the burden to the plaintiff to demonstrate injury. McMurrey,
858 S.W.2d at 393; Adams, 416 S.W.3d at 562.
15
The record shows that Brent was served with citation in this case at his
address in New Orleans on August 20, 2012. The trial court conducted the default
judgment hearing on October 2, 2012, and it entered the default order of parentage
on October 19, 2012.
Brent testified by telephone at the hearing on his motion for new trial. He
said that he was sixty-one years old, was an accountant, and had lived in New
Orleans most of his life. Brent said that he had had a stroke in 2010 that had
minimally affected his speech and ability to communicate.
Brent acknowledged that he was served in this case. Brent said that, at that
time, he did not know that he needed to hire a Texas attorney to represent him in
the case. He said that he took the suit papers to Ms. Mitchell, a New Orleans
attorney, and that he hired her to represent him in connection with the case. Brent
thought that Mitchell was going to handle everything. Brent testified that, on
September 4, 2012, Mitchell filed a suit on his behalf in New Orleans in which he
sought custody of the child.
Brent testified that, at some point, Mitchell told him that he needed to hire a
Texas attorney to represent him in the Texas case. Brent said that he tried to hire a
Texas attorney in September. In early September, Brent tried to contact an
attorney who practiced in Dallas. Brent said that he made numerous calls to the
attorney and left messages for the attorney to call him back but that the attorney
did not call him back. Brent told Mitchell that the attorney had not called him
back. Mitchell asked Brent whether he had paid the attorney. He told her that he
had not paid the attorney. Mitchell told Brent that he had to pay the attorney.
Brent testified that he did not know he was supposed to pay the Dallas attorney
because he had paid her. Brent said that he made additional calls to the Dallas
attorney’s office and that a paralegal at the office repeatedly told him that the
16
attorney would call him back. However, the attorney did not call him back. Brent
said that he made calls to the Dallas attorney’s office for at least a month.
Brent testified that Mitchell told him that she would ask the bar association
for a recommendation as to an attorney to represent him. Later, Brent hired Texas
counsel to represent him in this case. Brent filed his motion for new trial in this
case on November 8, 2012, and he filed an amended motion for new trial on
November 13, 2012. Brent’s counsel signed an affidavit in support of the amended
motion. In the affidavit, Brent’s counsel stated that Brent had contacted him in
early October about hiring him in this case but that the hiring was delayed because
the only means available for Brent to correspond with him was by regular mail.
Brent’s counsel stated that “[he] had to wait on [Brent] to send payment along with
the attorney-client agreement.” Brent’s counsel also stated that the use of regular
mail delayed Brent’s filing of a plea to the jurisdiction in this case. According to
Brent’s counsel, he sent a challenge to the jurisdiction to Brent that needed to be
verified by Brent. Brent’s counsel stated that he learned about the default
judgment in this case before he received the verified document back from Brent.
Brent testified that none of his counsel told him that a default judgment
could be taken against him if he did not timely answer the suit. Brent said that he
read the citation but did not understand from reading it that a default judgment
could be taken if he did not answer the suit. He said that he let his attorneys handle
the case. He believed that he learned about the default judgment in late October.
The evidence showed that Brent hired Mitchell to represent him soon after
he was served with Wendy’s petition. Brent believed that Mitchell was going to
handle everything. Mitchell filed the custody proceeding in New Orleans fifteen
days after Brent was served in this case. In addition to hiring Mitchell, and based
on Mitchell’s advice, Brent also tried to hire a Texas attorney in early September
2012. Brent said that he made numerous calls to the attorney but that the attorney
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did not return his calls. In early October, Brent first contacted his counsel in this
case. Brent hired his counsel, and their efforts to work together were delayed
somewhat due to Brent’s use of regular mail instead of a more expedited manner to
send and receive correspondence.
Brent could have been more diligent in his efforts to hire Texas counsel, and
he could have found a more appropriate way to correspond with his counsel. Thus,
he may have been negligent in connection with his failure to timely file an answer.
However, as stated above, negligence does not arise to consciously indifferent
conduct under Craddock. Smith, 913 S.W.2d at 468. Rather, the Craddock
standard is one of intentional or conscious indifference: whether Brent knew he
was sued but did not care. Fidelity, 186 S.W.3d at 575–76.
The facts do not demonstrate that Brent knew he was sued but did not care.
To the contrary, the steps that Brent took to hire counsel and his hiring of counsel,
both in Louisiana and in Texas, show that he cared about responding to the suit.
Brent thought that his Louisiana counsel would represent him in this case. Brent
relied on his Louisiana and Texas counsel to represent him. Brent was delayed in
hiring counsel because the first Texas attorney did not return his calls. Brent’s
excuse for failing to timely file an answer—his reliance on counsel, his confusion
as to the need to hire Texas counsel, and the amount of time it took to hire Texas
counsel—was sufficient to satisfy the first Craddock element. We conclude that
Brent’s failure to answer the suit before the trial court entered the default judgment
was not intentional or the result of conscious indifference but was due to mistake
or accident. Brent satisfied the first element of the Craddock test.
Brent alleged in his motion for new trial that he had a meritorious defense
based on a lack of subject-matter jurisdiction. Specifically, Brent alleged that
Louisiana, and not Texas, was the child’s home state for the purpose of
determining subject-matter jurisdiction. The evidence showed that Brent had filed
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a custody petition in Louisiana. Above, we concluded that the trial court did not
have subject-matter jurisdiction over the child custody proceeding aspect of this
case. If proved, a lack of subject-matter jurisdiction would cause a different result
upon retrial of the case; therefore, Brent set up a meritorious defense in his motion
for new trial. See Jaco, 278 S.W.3d at 873. Brent satisfied the second element of
the Craddock test.
The trial court entered the default order of parentage on October 19, 2012.
Brent filed his amended motion for new trial on November 13, 2012. Brent stated
in his motion that “[g]ranting Movant’s request will cause neither delay nor cause
injury to Non-Movant” and that “Movant is ready for trial and will reimburse Non-
Movant for reasonable expenses incurred in obtaining the default judgment.” Once
Brent made these representations, the burden shifted to Wendy to show injury.
McMurrey, 858 S.W.2d at 393. Wendy did not present evidence in an effort to
show that the granting of the motion would cause injury to her. Thus, she did not
meet her burden to show injury or undue delay. Brent satisfied the third element of
the Craddock test.
Because Brent satisfied all three elements of Craddock, we conclude that the
trial court abused its discretion when it denied Brent’s motion for new trial.
Brent’s third issue is sustained.
This Court’s Ruling
For the reasons stated above, we reverse the order of parentage of the trial
court, and we remand this cause to the trial court for further proceedings consistent
with this opinion.
June 26, 2014 JOHN M. BAILEY
Panel consists of: Wright, C.J., JUSTICE
Willson, J., and Bailey, J.
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