Opinion
04-22-00008-CV
10-05-2022
IN THE INTEREST OF M.J.E., a Child
From the 150th Judicial District Court, Bexar County, Texas Trial Court No. 2009-EM5-04650 Honorable Cynthia Marie Chapa, Judge Presiding
Sitting: Patricia O. Alvarez, Justice, Luz Elena D. Chapa, Justice, Lori I. Valenzuela, Justice
MEMORANDUM OPINION
Lori I. Valenzuela, Justice
After the trial court entered a default "Order in Suit to Modify Parent-Child Relationship and to Confirm Child Support Arrearages" (the "SAPCR order"), appellant, Brittney G., filed a motion for new trial asserting the SAPCR order should be set aside and a new trial granted (1) because she did not have notice of the September 28, 2021 hearing that resulted in the SAPCR order and (2) based on newly-discovered evidence. The motion was overruled by operation of law. Brittney and another appellant, Sonya J., filed a joint notice of appeal. On appeal, they asserted they did not have notice of the September 28th hearing and that they were improperly denied their right to a jury trial. We affirm.
The reporter's record from this hearing is dated September 27, 2021. However, appellee's motion to set the hearing states the date as September 28th and the SAPCR order states the trial court heard the matter on September 28th. Therefore, we refer to this hearing as the September 28th hearing.
BACKGROUND
Brittney is the mother of the child who is the subject of the underlying suit. Appellee, Mukosolu E., is the child's father. The couple divorced in June 2011. Sonya is the child's maternal grandmother, who at some point in time intervened in the underlying suit. The clerk's record does not contain an order granting Sonya leave to intervene. On March 16, 2020, Mukosolu moved to dismiss Sonya from the suit on the ground Sonya lacked standing.
The parties filed various pleadings leading up to the September 28, 2021 hearing. Relevant to the hearing are two pleadings filed by Mukosolu: (1) First Amended Motion for Enforcement of Child Support and Cash Medical Support Orders ("motion for enforcement") and (2) First Amended Counterpetition to Modify Parent-Child Relationship ("petition to modify"). In his motion for enforcement, Mukosolu alleged Brittney was in arrears on her child support and medical support and asked the court to hold her in contempt and order the support withheld from her income. In his petition to modify, Mukosolu requested that he be awarded sole managing conservatorship of the child and certain conditions be placed on Brittney's possession of the child. Mukosolu filed a Motion to Set the cause on the non-jury docket for trial on the merits on September 28, 2021. Mukosolu appeared at the hearing with his attorney. Brittney and Sonya did not appear.
After the hearing, the trial court signed the SAPCR order in which it, among other things, removed Mukosolu and Brittney as managing conservators and appointed them joint managing conservators of their child; appointed Mukosolu as the parent with the exclusive right to designate the child's primary residence without regard to geographic location; ordered Brittney's access be supervised; and confirmed child and medical support arrearages. The court awarded judgment against Brittney in favor of Mukosolu in the amount of $4,454.60 in child support and $2,050 in medical support. In its order, the trial court also "[found] that based on the pleadings of the parties and the evidence presented to this Court that the Court is without authority to determine the subject in controversy as it relates to Petitioner, [Sonya's], claims because [Sonya] has no standing to assert the claims raised in [Sonya's] Motion to Modify Parent-Child Relationship. Therefore, IT IS ORDERED that the requested modification is DISMISSED."
Only Brittney filed a motion for new trial asking the trial court to set aside the SAPCR order and grant a new trial. The motion was overruled by operation of law. On appeal, appellants raise two issues: they did not have notice of the hearing that resulted in the SAPCR order and they were improperly denied their due process right to a jury trial.
NOTICE OF HEARING
On appeal, appellants contend that from August 26, 2021 through September 28, 2021 they had no actual or constructive notice of the September 28th hearing or the setting for the motion for enforcement filed by Mukosolu. Therefore, they conclude the trial court lacked jurisdiction to enter the SAPCR order.
"Entry of a post-answer default judgment against a defendant who did not receive notice of the trial setting or dispositive hearing constitutes a denial of due process under the Fourteenth Amendment of the United States Constitution." Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (per curiam). One generally attacks a post-answer default judgment by proving that (1) her nonappearance was not intentional or the result of conscious indifference; (2) she has a meritorious defense; and (3) a new trial would cause neither delay nor undue prejudice. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939); see also Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005) (per curiam). The second and third elements need not be established if the movant failed to receive notice of hearing from which the order arose. See Mathis, 166 S.W.3d at 744. That is, "[w]hen a party fails to receive notice of a trial setting, she satisfies the first prong of the Craddock test and need not meet the remaining prongs to be entitled to a new trial." De La Garza v. Riverstone Apartments, No. 04-06-00732-CV, 2007 WL 3270769, at *3 (Tex. App.-San Antonio Nov. 7, 2007, no pet.) (mem. op.). The burden lies with the party attacking the default judgment to prove the aforementioned elements. See Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 309 (Tex. 2012) (per curiam).
"To complain that the trial court abused its discretion by failing to grant [a motion to set aside a default judgment and grant a new trial] under the Craddock rule, the movant must obtain a hearing on its motion." Century Sports Wears, Inc. v. Wallis Bank, No. 02-20-00201-CV, 2021 WL 1685957, at *2 (Tex. App.-Fort Worth Apr. 29, 2021, pet. denied) (mem. op); see also In re D.N.A., No. 07-22-00077-CV, 2022 WL 2673094, at *1 (Tex. App.-Amarillo July 11, 2022, no pet.) (mem. op.) (requiring motion for new trial to be brought to trial court's attention).
"Failure to use diligence to obtain a hearing results in waiver of the point on appeal because the trial court was not given the opportunity to exercise its discretion before the motion was overruled by operation of law." Century Sports Wears, 2021 WL 1685957, at *2. Thus, "[t]here is no abuse of discretion in the overruling of a motion for new trial by operation of law where the record fails to show any attempt to obtain a timely hearing." Lilly v. Tolar, No. 06-01-00163-CV, 2002 WL 1926527, at *3 (Tex. App.-Texarkana Aug. 22, 2002, pet. denied) (mem. op.); see also D.N.A., 2022 WL 2673094, at *3 ("Additionally, nothing of record indicates that MS attempted to obtain a hearing on or otherwise bring to the trial court's attention her motion for new trial. That too prevents us from concluding the trial court abused its discretion in denying it by operation of law.").
Here, Sonya did not file a motion for new trial. Brittney filed a motion for new trial but did not bring it to the trial court's attention or obtain a hearing on her motion. Nevertheless, the overruling by operation of law of a motion for new trial may preserve for appellate review a complaint raised in the motion "only if the taking of evidence was not necessary to properly present the complaint in the trial court." Magna Donnelly Corp. v. DeLeon, 267 S.W.3d 108, 114 (Tex. App.-San Antonio 2008, no pet.). Here, evidence was required on the question of whether Brittney and/or Sonya received notice. See Caldwell, 154 S.W.3d at 98 (holding question of whether appellant was served with process was a question of material fact).
On the question of whether she received actual or constructive notice, Brittney included a "declaration" in her motion for new trial wherein she stated:
I have represented myself in this matter since my attorney withdrew on June 30, 2021. I was not aware that a trial on the merits was set to be heard in this cause on September 28, 2021. Had I known this matter was set for trial, I would have appeared in court to present my case. I was made aware of a default judgment being taken in this cause on October 12, 2021 when the clerk of this Court emailed the parties a signed copy of the default judgment.Brittney does not contend she did not receive notice. She merely states, without explanation or corroboration, that she was "not aware" of the hearing. See Guerra v. Guerra, No. 04-20-00366-CV, 2022 WL 689097, at *4 (Tex. App.-San Antonio Mar. 9, 2022, no pet. h.) (mem. op.) ("Parents have not provided any corroborating evidence to support their contention that the notice was never received at their home.").
As set forth above, a prerequisite for preserving error for appeal from denials of motions to set aside default judgments and grant new trials is that the movant must exercise diligence in having the motion heard by the court before the motion is overruled by operation of law. Brittney never called her motion for new trial to the trial court's attention and never sought a hearing on the motion. Sonya did not file a motion for new trial. Under these circumstances, we conclude both appellants failed to preserve error on this issue.
RIGHT TO A JURY TRIAL
Appellants contend they perfected their right to a jury trial. On appeal, they assert they were denied their due process right to a jury trial because the September 28th hearing was conducted before the bench.
The Family Code provides for trial by jury upon request. See Tex. Fam. Code § 105.002(a). The right to a jury trial exists as a matter of constitutional law; however, the right in a civil case is not self-executing: to invoke and perfect the right to a jury trial in a civil case a party must first comply with the requirements of Texas Rule of Civil Procedure 216. Sunwest Reliance Acquisitions Group, Inc. v. Provident Nat'l Assur. Co., 875 S.W.2d 385, 387 (Tex. App.-Dallas 1993, no writ). Under Rule 216, to make a proper request for a jury trial, a party must make a written request for a jury trial and pay the jury fee at least thirty days before the date trial is set. See Tex. R. Civ. P. 216. Here, we assume without deciding that appellants perfected their right to a jury trial.
"[T]he right to a jury trial may be waived or withdrawn by (a) agreeing to a bench trial, (b) failing to timely pay a jury fee, (c) failing to timely request a jury trial, (d) failing to appear for trial, or (e) failing to object to a bench trial despite a properly perfected request." Matter of Marriage of Harrison, 557 S.W.3d 99, 135 (Tex. App.-Houston [14th Dist.] 2018, pet. denied). "Failure of a party to appear for trial shall be deemed a waiver by [her] of the right to trial by jury." Tex.R.Civ.P. 220; see also In re Willis, No. 01-21-00208-CV, 2021 WL 2006317, at *6 (Tex. App.-Houston [1st Dist.] May 20, 2021, orig. proceeding) (mem. op.) ("waiver of the right to a jury trial may be deemed to occur if the party who paid the jury fee and requested a jury trial fails to appear for trial"); Avila-Gonzalez v. Avila, No. 03-18-00211-CV, 2018 WL 4869290, at *2 (Tex. App.-Austin Oct. 9, 2018, no pet.) (mem. op.) ("even assuming, without deciding, that Avila-Gonzalez perfected his request for a jury trial, we conclude that he waived that right by failing to appear at the final hearing and urge his objection to the bench trial"); Maldonado v. Puente, 694 S.W.2d 86, 89 (Tex. App.-San Antonio 1985, no writ) ("a failure to appear at the designated time constitutes a waiver of trial by jury under Rule 220.").
Because we conclude appellants waived their complaint that they did not receive notice of the September 28th hearing by failing to bring to the trial court's attention a motion for new trial regarding-and evidence on-lack of notice, we also must conclude they failed to establish a reason for their nonappearance at the hearing Therefore, we conclude appellants' failure to appear at the hearing waived their right to a jury trial.
CONCLUSION
For the reasons stated above, we affirm the trial court's default "Order in Suit to Modify Parent-Child Relationship and to Confirm Child Support Arrearages."