• Beth M. Johnson

Motions for New Trial

New trials may be granted and a judgment may be set aside for good cause. Tex. R. Civ. P. 320.


Ineffective Service


A defendant can directly attack a default judgment by a motion for new trial, a restricted appeal, or a bill of review. See PNS Stores v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). When a no-answer default judgment is challenged by a direct attack, the record must show strict compliance with the manner and mode of service; otherwise, the service is invalid and the default judgment is void. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994).


Craddock Test


Under Craddock, a trial court must set aside a default judgment if:

(1) the failure of the respondent to answer before judgment was not intentional, or the result of conscious indifference on his part, but was due to a mistake or an 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.

Sutherland v. Spencer, 376 S.W.3d 752, 754 (Tex. 2012) (quoting Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). When a motion for new trial presents a question of fact upon which evidence must be heard, the trial court is obligated to hear such evidence if the facts alleged by the movant would entitle him to a new trial. Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979) (per curiam). And, when the factual allegations in a movant’s affidavit are not controverted, it is sufficient if the motion and affidavit provide factual information that, if taken as true, would negate intentional or consciously indifferent conduct. Dir., State Emps. Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994). If the uncontroverted factual allegations are sufficient under Craddock, it is an abuse of discretion to deny a motion for new trial. Bank One, Tex., N.A. v. Moody, 830 S.W.2d 81, 85 (Tex. 1992).


Under Craddock’s first element, “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.” Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012) (citation omitted). Even a mistake of law can satisfy the first prong of the Craddock test. Nalley v. Quevedo, No. 01-20-00400-CV-CV, 2022 WL 1547780, at *6 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (mem. op.) (wife’s attorney believed answer was due at time of initial hearing rather than the actual deadline, 9 days earlier).


Evidence Sufficiency


When the respondent does not file an answer, the petitioner in a divorce suit must offer proof to support the material allegations in the petition, and the judgment of divorce is subject to an evidentiary attack by a motion for new trial and on appeal. Considine v. Considine, 726 S.W.2d 253, 254 (Tex. App.—Austin 1987, no writ); see Cox v. Cox, 298 S.W.3d 726, 731 (Tex. App.—Austin 2009, no pet.).


Evidence of the valuation of the property in question is necessary to know “the size of the community pie” and whether “the slices awarded to each spouse were just and right.” Sandone v. Miller-Sandone, 116 S.W.3d 204, 207–08 (Tex. App.—El Paso 2003, no pet.). In other words, without evidence of valuation, it is impossible to deter-mine whether a trial court has followed the Texas Family Code’s standard of “just and right” in the trial court’s division of the property. See id. at 208.


A NO-ANSWER DEFAULT PROVE-UP IS NOT THE SAME AS AN AGREED PROVE-UP. In a family-law case, if you want to obtain a no-answer default judgment that will stand up on appeal, you need to go to court as if you were going to a final contested trial with the benefit of not having another lawyer to object to anything you say. You should have a sworn inventory and appraisement that shows the value and character of every piece of property and every liability that you are dividing or confirming in the decree. If you are claiming that property is separate, you need to bring your clear and convincing evidence establishing that claim. You should have a spreadsheet showing how the property is being divided, and if you are seeking a disproportionate division, you must present evidence of the Murff factors supporting that division. See e.g., In re Marriage of Williams, No. 06-20-00095-CV, 2022 WL 3204782, at *3 (Tex. App.—Texarkana 2022, no pet. h.) (mem. op.). In a SAPCR, you need to have evidence to support why the requested orders are in the best interest of the children and evidence supporting the obligor’s net resources. Giles v. Giles, No. 01-20-00571-CV, 2022 WL 22-51814, at *8 (Tex. App.—Houston [1st Dist.] 2022, no pet.) (mem. op.) (insufficient evidence to support conservatorship orders); Houston v. Thorpe, No. 04-19-00469-CV, 2020 WL 3547988, at *5 (Tex. App.—San Antonio 2020, no pet.) (mem. op) (sufficient evidence to support child-related orders). Without evidence to support the order, if the other side chooses to appeal or seek a new trial, you will likely have to retry the case.


Undivided Property


If a party discovers that the trial court did not divide certain community property before the judgment becomes final (within 30 days of the judgment being signed), the party should file a motion to modify the judgment or a motion for new trial. See Tex. R. Civ. P. 329b(d); see, e.g., Zicker v. Stewart, No. 03-04-00438-CV, 2006 WL 191787 (Tex. App.—Austin 2006, no pet.) (mem. op.) (one week after court signed decree, husband filed motion to modify it based on inadvertent omission of assets).


Interlocutory Orders


If the decree is silent on the division of the parties’ community estate and the record reveals that the court explicitly severed the division of property from the divorce, reserved the division for future determination, or granted a partial new trial on the division of property, the decree will not be considered final and the parties will remain married (i.e., there is no rendition of judgment in the divorce). See Vautrain v. Vautrain, 646 S.W.2d 309, 315–16 (Tex. App.—Fort Worth 1983, writ dism’d) (spouses continued to acquire community property until court rendered decision in partial new trial for division of property); In re Marriage of Johnson, 595 S.W.2d 595, 902–03 (Tex. App.—Amarillo 1980, writ dism’d w.o.j.) (court enters interlocutory order if it severs or reserves division of property).


Death of a Party


Divorce actions do not survive the death of a party; they are personal to a spouse in a marriage. McKenzie v. McKenzie, 667 S.W.2d 568, 571–72 (Tex. App.—Dallas 1984, no writ). However, if a party to a divorce suit dies after judgment is rendered, the suit is not abated and should not be dismissed. Turner v. Ward, 910 S.W.2d 500, 503 (Tex. App.—El Paso 1994, no writ); see, e.g., In re Marriage of Fannette, No. 10-12-00141-CV, 2013 WL 3533238 (Tex. App.—Waco 2013, pet. denied) (mem. op.) (husband died after oral rendition of judgment and before court signed final decree, so suit was final and could not be abated or dismissed; signing of decree was ministerial act). The trial court retains plenary power to modify its judgment during the time periods provided by Texas Rule of Civil Procedure 329b. Turner, 910 S.W.2d at 503. During that time, the judgment can be modified or withdrawn. Id. at 504. But unless the surviving party shows fraud, duress, or deprivation of due process, the trial court cannot grant a motion for new trial to undo the divorce. In re Marriage of Wilburn, 18 S.W.3d 837, 843 (Tex. App.—Tyler 2000, pet. denied).



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