Dallas Divorce Lawyer Blog
You have been served with a petition for divorce and it states you have to file an answer by 10:00 a.m. on the Monday next after the expiration of 20 days. However, you have been working things out with your soon-to-be-ex spouse and you guys have agreed upon everything. Your spouse tells you that the service part is just part of the legal process and you do not have to do anything because you have already signed the agreed decree. However, once everything is said and done the district clerk’s office mails you a copy of the decree and it is not the one you signed. In fact, it contains terms that are the complete opposite as to what you agreed. You are shocked and you have no idea what to do; according to the final decree mailed to you, your ex-spouse is taking the children, the home, and the car.
You contact an attorney and find out that your ex-spouse actually waited for your answer period to expire and then went before the judge and asked for a “default” divorce on the basis of you not answering or making an appearance. The judge, not knowing the background of the case and relying upon the ex-spouse’s allegations, granted the default divorce and now you must work to get that reversed.
The good news is you do have a form of recourse. You can file a motion to set aside the default judgment and a motion for new trial. In order to be successful on this type of motion, it is important that you know the grounds for doing so. Luckily, several appellate courts have discussed this test, also known as the Craddock elements. It was recently discussed again by the Texarkana 6th District Court of Appeals in In the Matter of the Marriage of Lucas Woods and Jessica Woods and In the Interest of L.K.L.W. and S.B.L.W., Children. This Court held that to analyze whether a motion for new trial should be granted and to set aside a default judgment, the trial courts must look at the following factors: “(1) the failure of the defendant to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or accident; (2) the motion for a new trial sets up a meritorious defense; and (3) granting the motion will occasion no delay or otherwise work an injury to the plaintiff.”
In determining the first element, the Court basically said that if a person is sued and they just do not file an answer because they do not care then that person cannot claim that they were not being intentionally indifferent. But, if you do not file an answer because of representations of your spouse, then that obviously is a legitimate reason (at least for this appellate court). In this particular case, the wife did not file an answer because she and her husband had worked out an agreement prior to even filing the divorce and were actually already living out that agreement with their children. Therefore, the Court held that she did not intentionally fail to file an answer and that she did not ignore the petition. She was legitimately relying upon her spouse’s representations that she did not need to answer.
For the second factor, the Court was looking to determine if she had a defense in her affidavit (attached to her motions) that would have led the trial court to make a different decision or reach a different outcome on the final divorce. So, the Court is asking the question: do you have any information that if given to the court would have completely changed the court’s mind and would have caused them to do something different than what was decided in the decree? If so, this is a meritorious defense. In the case at hand, as stated before the parties had an agreement and the case involved children. The spouses had agreed (or so the wife thought) that she would have the exclusive right to determine the primary residence of the children and that the father would have standard possession and they had been exercising this agreement for about a year or more. The wife was specific in her affidavit as to why the decree was wrong (agreement, children were suffering due to switch, etc.). The Court concluded that all of this information was sufficient to meet the second element because the final decree did in fact “modify the living arrangements of the children and raise concerns regarding their best interest.”
Finally, on the third factor, it is one that you must plead and then the other side has the burden of proving otherwise. Therefore, the Court held that once you state that you would not injure the Plaintiff in having the default judgment set aside and granting the motion for new trial, the burden shifts to the Plaintiff to prove that they would in fact suffer some sort of injury (time, money, etc.). In this case, the Court held that the husband failed to produce any proof to this effect and the wife was very timely with her filings in that it was on file within four days after the trial court entered the decree.
Thus, the wife met all three elements and the appellate Court reversed the trial court’s denial of the motion for new trial and remanded back to the trial court.
If this has happened to you, it is important that you not delay and get your pleadings on file for a motion to set aside and motion for new trial as soon as possible. The appellate courts are very analytic in reviewing the pleadings to determine if the elements were met. Do not think that you are without any way to “fix” this problem—you have a solution but there is a time sensitive deadline. Consult with an attorney to discuss your case in detail.