Opinion
No. 01-03-00301-CV
Opinion issued May 20, 2004.
On Appeal from the 306th District Court, Galveston County, Texas, Trial Court Cause No. 02-FD-1199.
Kathryn Bradfield Lanan, Texas City, TX, for ad litem.
Shawn Casey, Shawn Casey Associates, Houston, TX, for appellee.
Panel consists of Justices NUCHIA, JENNINGS, and KEYES.
MEMORANDUM OPINION
Appellant, Tami Leigh Steambarge, appeals the agreed order modifying the parent-child relationship rendered against her by default and granting her one hour of supervised visitation per month with her child. We reverse and remand for further proceedings.
BACKGROUND
Steambarge gave birth to a child out of wedlock on October 29, 1998. In December 2000, a Harris County district court signed an agreed order of parentage, naming Carlos E. Rosario, Jr. as the biological father of the child. The order named Steambarge and Rosario as joint managing conservators of the child, gave Steambarge the exclusive right to designate the child's domicile, and granted standard visitation rights to Rosario. In March 2002, Rosario filed a petition to modify the parent-child relationship requesting that he be made sole managing conservator based on Steambarge's history of drug and alcohol abuse. In May 2002, Steambarge's mother, Mary Lou Jackson, filed a petition titled "Motion to Modify for Grandparent Access and Supervised Visitation" in which she agreed that Rosario should have custody of the child, requested that Steambarge's visits with the child be supervised, and asked that Jackson be granted reasonable access to the child. Jackson also requested that venue be transferred to Galveston County, the principal residence of Steambarge and the child.
Following the transfer, the district court in Galveston County entered an order requiring Jackson to be present at all times while Steambarge was with the child and granting Rosario expanded visitation. In September, that court scheduled a pretrial conference for December 6, 2002 and set the case for a December 11 jury trial. The trial court also granted Steambarge's attorney's request to withdraw from the case.
Rosario filed a motion to dismiss Jackson's petition for lack of standing, and the associate judge of the court granted the motion. Jackson appealed the ruling, and a hearing de novo was scheduled for December 11, the day of the jury trial. Rosario also filed a no-evidence motion for summary judgment against Jackson, and that motion was set for a December 11 hearing.
At the December 6 pretrial conference, the trial court first discussed a letter it had received from Steambarge, stating that she could not appear at the December 6 hearing or the December 11 trial because she was entering a rehabilitation program. Steambarge requested that the court reset the trial date for a time when she could be present. The trial court stated on the record that "as far as I'm concerned I'm not granting" the request. The trial court then heard Jackson's motion for a continuance, which was based on Rosario's failure to respond to discovery requests. The trial court indicated that the disposition of other issues to be considered on December 11 — Jackson's appeal of the dismissal of her petition and Rosario's motion for summary judgment — might make a jury trial unnecessary. The judge stated, "We'll have the appeal at 10:30 on Wednesday morning (December 11), and I'm going to continue the jury trial. And whether or not you get that rescheduled would depend on the outcome of the appeal on Wednesday morning." The trial court signed the following order:
On this day the Court considered the Motion for Continuance of MARY LOU JACKSON, Movant, and finds that the motion should be GRANTED.
IT IS THEREFORE ORDERED that the trial presently set for December 11th, 2002, at 10:30 o'clock a.m., in the 306th District Court of Galveston County, Texas, is continued and shall be reset to generally. . . .
SIGNED AND ENTERED THIS THE 6th DAY OF December, A.D., 2002.
On December 11, Rosario, Jackson, their attorneys, and the guardian ad litem for the child appeared before the trial court. The attorneys announced that their clients had entered into a rule 11 agreement settling the case, and the ad litem stated that she believed that the agreement was in the best interest of the child. Under the agreement, Rosario was the sole managing conservator of the child and Jackson would be given periods of possession similar to, but not the same as, a standard possession order. Steambarge was given one hour per month of supervised visitation, and she was specifically not to be permitted any additional contact with the child during Jackson's periods of possession and was not to be permitted to attend any of the child's school activities.
See Tex. R. Civ. P. 11.
The trial court signed an "Agreed Order in Suit to Modify Parent-Child Relationship" that incorporated the provisions of the rule 11 agreement. The order recited, "Respondent, TAMI LEIGH STEAMBARGE, although duly and properly cited, did not appear and wholly made default." Steambarge filed a motion for new trial, contending that the trial setting was continued and that she received no notice that the trial was reset. The trial court denied the motion. In this appeal, Steambarge contends, in two issues, that the trial court erred in denying her motion for new trial because she established that her failure to appear at the trial was not intentional or the result of conscious indifference on her part.
DISCUSSION
We review a trial court's denial of a motion for new trial for abuse of discretion. See Director, State Employees Workers' Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). A court abuses its discretion when it acts without reference to any guiding rules and principles. Downer Acquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Generally, to obtain a new trial after the entry of a default judgment, a defendant must meet the three-pronged Craddock test by showing that (1) the failure to answer was not intentional or the result of conscious indifference, (2) the defendant has a meritorious defense, and (3) a new trial will not work an injury to the plaintiff. Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. Com. App. 1939). These same requirements apply to a post-answer default. Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987). However, in a post-answer default, if a defendant's reason for not appearing at a trial setting is lack of notice of the setting, the defendant is not required to show a meritorious defense. Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (citing Peralta v. Heights Med. Ctr, Inc., 485 U.S. 80, 108 So. Ct. 896 (1988), holding that requirement that defendant show meritorious defense, in absence of notice, violates due-process rights under Fourteenth Amendment). In addition, the defendant is not required to show that a new trial would not cause delay or injury to the plaintiff. Mahand v. Delaney, 60 S.W.3d 371, 375 (Tex. App.-Houston [1st Dist.] 2001, no pet.) (extending Lopez principle to third prong of Craddock).
In this case, Steambarge contends that her failure to appear on December 11 was not intentional or due to conscious indifference because the trial court had granted a continuance of the trial date and she had no notice that there would be a final adjudication of the suit to modify the parent-child relationship. Steambarge argues that she was not a respondent to either of the two matters that were to be heard on December 11 — Jackson's appeal of the associate judge's ruling that Jackson had no standing and Rosario's motion for summary judgment against Jackson — and that her appearance at the December 11 hearing was therefore unnecessary.
Rosario responds that, at the pretrial conference, the trial court left open the possibility of having a non-jury trial on December 11 because the trial court did not say that it would not hear a non-jury trial. The remarks of the trial court at the pretrial conference indicate that the rescheduling of the trial depended on the outcome of the hearing on December 11 regarding Jackson's appeal and Rosario's motion for summary judgment. The trial court's remarks are not evidence that the trial court gave notice that a non-jury trial would be held on December 11.
Rosario asserts, incorrectly, that the trial court "made it clear it would hear a non-jury trial, time permitting." Counsel for Rosario asked the trial court whether, if the court affirmed the dismissal of Jackson's suit and denied Rosario's motion for summary judgment, the court would make a determination as to what visitation Jackson was entitled to. The court said it would do that, "time permitting."
Rosario also relies on the recitation in the agreed order that Steambarge, "although duly and properly cited, did not appear and wholly made default." Rosario cites Osborn v. Osborn for the proposition that such a recitation is some, but not conclusive, evidence that proper notice was given. See 961 S.W.2d 408, 411 (Tex. App.-Houston [1st Dist.] 1997, writ denied). In Osborn, however, the defendant did not offer any evidence to rebut the presumption that he received notice of the trial setting. Id. at 413.
Unlike Osborn, in this case there is evidence in the record rebutting the presumption created by the recitation. See id. at 411 (stating that presumption no longer taken as true if rebutted by other evidence in record). The record affirmatively shows that the trial court signed an order continuing "the trial presently set for December 11th, 2002" "generally," with no specific date set for the trial. Steambarge attached Jackson's affidavit to the motion for new trial. In that affidavit, Jackson states that she told Steambarge that Jackson's motion for continuance had been granted on December 6, 2002 and that there would not be a custody trial on December 11. Finally, there is no evidence in the record that a notice of a non-jury trial was given after the order of continuance was signed.
We hold that Steambarge has established that she did not receive notice that a non-jury trial would be held on December 11. She has met her burden under Lopez and Mahand, and is therefore not required to show the second and third prongs of Craddock. Accordingly, the trial court abused its discretion in denying Steambarge's motion for new trial.
We sustain Steambarge's two issues. We reverse the order of the trial court and remand for further proceedings.