Opinion
No. 05-11-00034-CV
07-24-2012
MICHAEL JAY FRIEDMAN, Appellant v. LAURA ANN FRIEDMAN, Appelle
AFFIRMED; Opinion Filed July 24, 2012.
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 199-54287-2010
MEMORANDUM OPINION
Before Justices Lang, Murphy, and Myers
Opinion By Justice Lang
Michael Jay Friedman, pro se, appeals the final decree of divorce dissolving his marriage to Laura Ann Friedman now known as Laura Ann Crowley and dividing their marital property. Crowley did not file a brief in this appeal. In one issue, Friedman argues the trial court erred when (1) it denied his motion for new trial and (2) the final decree of divorce was procured by Crowley's alleged false testimony. We conclude the trial court did not err. The trial court's final decree of divorce is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
Crowley filed a petition for divorce seeking to dissolve her marriage to Friedman. Friedman was served in Arizona and did not file an answer to the petition for divorce. As a result, Crowley obtained a no-answer default on her petition for divorce. After an evidentiary hearing, the trial court granted Crowley's petition for divorce and divided the marital property. Friedman filed a motion for new trial, claiming that his failure to answer was the result of an accident or mistake because he was misinformed regarding the procedures he should follow. The trial court denied Friedman's motion for new trial without a hearing.
II. MOTION FOR NEW TRIAL
Friedman argues the trial court erred when it denied his motion for new trial. Friedman asserts that he satisfied the requirements for such a motion in that his failure to answer the divorce petition was unintentional. See Craddock v. Sunshine Bus Lines, 134 Tex. 388, 133 S.W.2d 124 (1939). Also, he contends that the default divorce decree should be set aside because he did not receive notice of the default hearing.
A. Craddock Test
Friedman argues that he satisfied the requirements for such a motion in that his failure to answer the divorce petition was unintentional. See Craddock, 134 Tex. 388, 133 S.W.2d 124. Friedman, an Arizona resident, contends that after being served with the petition for divorce, he contacted a Texas attorney who advised him not to respond to the petition for divorce and let it go to default, that he would be contacted to discuss settlement, and that he would be advised of the hearing date.
1. Standard of Review
An appellate court reviews a trial court's ruling on a motion for new trial for an abuse of discretion. Dolgencorp of Tex. Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). A trial court abuses its discretion if it fails to grant a new trial when all three elements of the Craddock test are met. Dolgencorp, 288 S.W.3d at 926 (discussing Craddock, 134 Tex. 388, 133 S.W.2d 124 (1939)). If no hearing was conducted by the trial court, an appellate court reviews the ruling based on the affidavits attached to the verified motion for new trial following a default judgment. See Ward v. Nava, 488 S.W.2d 736, 737 (Tex. 1972).
2. Applicable Law
Under the Craddock test, a trial court should set aside a default judgment and order a new trial in any case in which: (1) the failure of the respondent 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 a new trial sets up a meritorious defense; and (3) the granting of the motion for new trial will occasion no delay or otherwise injure the petitioner. See Dolgencorp, 288 S.W.3d at 925; Craddock, 133 S.W.2d at 126. These prerequisites have been applied to no-answer default divorce decrees. See Rivas v. Rivas, No. 01-10-00585-CV, 2012 WL 151462 (Tex. App.-Houston [1st Dist.] Jan. 19, 2012, no pet.) (mem. op.). The defaulting respondent has the burden of proving that all three elements of the Craddock test are met before a trial court is required to grant a motion for new trial. Scenic Mountain Med. Ctr. v. Castillo, 162 S.W.3d 587, 590 (Tex. App.-El Paso 2005, no pet.); Padrino Maritime, Inc. v. Rizo, 130 S.W.3d 243, 247 (Tex. App.-Corpus Christi 2004, no pet.); cf. Mathis v. Lockwood, 166 S.W.3d 743, 745 (Tex. 2005) (if challenging notice of trial setting, defaulting party need only prove first element and not second and third elements of Craddock test to have post-answer default judgment set aside). Further, it is not enough to argue all three Craddock elements in a motion for new trial, they must also be raised on appeal. See Stewart v. C.L. Trammell Props. Inc., No. 05-04-01027-CV, 2005 WL 2234607, *3 (Tex. App.-Dallas Sept. 15, 2005, no pet.) (mem. op.); Stewart v. C.L. Trammell Props. Inc., No. 05-04-01027-CV, 2005 WL 2234637, *2 (Tex. App.-Dallas Sept. 15, 2005, no pet.) (supp. mem. op. on motion for reh'g). 3. Application of the Law to the Facts
Friedman's motion for new trial appears to be drafted on a preprinted form. Under the untitled, preprinted section heading "II," Friedman inserted the following paragraph:
I am requesting a new hearing in this matter as I was misinformed regarding the proper process and procedures to follow. I received the petition on September 9, 2010. At that time, my concern was regarding the prayer for judgement against me for the fees associated with this action. Through my employer's Employee Assistance Program, I spoke with . . . a family law attorney from Carrollton, Texas. [He] advised me not to respond to the petition. After our conversation, I was left with the impression that I would be contacted to discuss separation of assets and/or debt and notified of the hearing date. I was not contacted regarding either of these, although I had contacted the Petitioner's attorney and requested he forward a copy of the decree for my review. The next notification I received was a letter from the County Clerk's office advising me of the default judgment, and a week later, received the Final Divorce Decree. Had I been made aware of the proper procedures to follow, I would have made arrangements to either appear personally or retain an attorney to represent me in this action.
In the untitled section "III," the form has this preprinted statement followed by blank lines:
Movant's failure to file an answer before judgment was the result of an accident or mistake, rather than due to an intentional act or the result of conscious indifference.
The accident or mistake that prevented Movant from filing an answer is:
[Describe accident or mistake.]Nothing is set out on the blank lines in section "III" where the "accident or mistake" was to be described.
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Similarly, in untitled section "IV," the form has this preprinted statement followed by blank lines:
Movant has a meritorious defense as to the full amount of the judgment. Movant's meritorious defense is:Again, nothing is set out on the blank lines in section "IV" where the "defense" was to be described.
[Describe defense.]
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Finally, in untitled section "V," the form sets out this preprinted statement: "The granting of a new trial will not prejudice the other parties to this cause. Movant is ready, able and willing to go to trial immediately and no delay, harm, or prejudice will occur to the other parties as a result of Movant's motion."
Attached to the motion for new trial was a preprinted verification affidavit titled "Movant's Supporting Affidavit," which was signed by Friedman and notarized. It states:
[O]n this day personally appeared Michael J. Friedman [], to me well known to be a credible person of lawful age and qualified in all respects to make this Affidavit, who being first sworn on oath, stated that he [] is the Defendant [] in the foregoing Motion for New Trial and that he [] has read the foregoing Motion and that this Motion for New Trial is in every statement and allegation thereof, true and correct to he [sic] [] own personal knowledge.(Underlined statements were handwritten on blanks provided on the preprinted form). No other affidavits or evidence were attached to Friedman's motion for new trial.
We construe the statement set out under section heading "II" to contain the substance of Friedman's argument relating to the accident or mistake that he claims prevented him from filing an answer. Friedman had the burden of proving that all three elements of the Craddock test were met before the trial court was required to grant his motion for new trial. See Scenic Mountain, 162 S.W.3d at 590; Padrino, 130 S.W.3d at 247. Even construed broadly, we cannot say his motion for new trial raised a meritorious defense. Likewise, on appeal, Friedman does not explain how his motion for new trial set up a meritorious defense. See Stewart, 2005 WL 2234607, at *3. On the record before us and based on the issues and arguments raised by Friedman on appeal, we cannot conclude the trial court abused its discretion when it denied Friedman's motion for new trial. Accordingly, the portion of issue one that argues the default divorce decree should be set aside because Friedman satisfied the requirements for a motion for new trial is decided against Friedman.
B. Notice of Default Hearing
Friedman argues that the default divorce decree should be set aside because he did not receive notice of the default hearing. Friedman also claims that, prior to the default hearing, he contacted Crowley's attorney. In his motion for new trial, he claims that he "contacted [Crowley's] attorney and requested [her attorney to] forward a copy of the decree for [his] review. The next notification [he] received was a letter from the County Clerk's office advising [him] of the default judgment." In his brief on appeal, Friedman makes different statements where he says that before the default judgment was rendered, he "spoke with Darla in [Crowley's attorney's] office who advised that anything [he] need[ed] to discuss should be put in writing," and he "[f]axed a letter to [Crowley's attorney] addressing his concerns regarding the costs prayed for as well as advising [of] some issues [he] wanted addressed." There is nothing in the record to support the allegation he makes on appeal.
Friedman concedes that he received notice of Crowley's petition for divorce. However, when he failed to answer, Crowley had no duty to notify Friedman before taking a default judgment. See In re R.R., 189 S.W.3d 915, 917 (Tex. App.-Dallas 2006), rev'd on other grounds 209 S.W.3d 112 (Tex. 2006) (per curiam); Sanders v. Sanders, No. 01-11-00010-CV, 2011 WL 5100912, at *3 (Tex. App.-Houston [1st Dist.] Oct. 27, 2011, no pet.) (mem. op.); Brooks v. Assocs. Fin. Servs. Corp., 892 S.W.2d 91, 94 (Tex. App.-Houston [14th Dist.] 1994, no writ). Accordingly, the portion of issue one that argues the default divorce decree should be set aside because Friedman did not receive notice of the default hearing is decided against Friedman. III. DEFAULT DIVORCE DECREE PROCURED BY "DECEPTIVE ACTS"
Friedman argues the final decree of divorce was supported by two false statements made by Crowley, during her testimony at the prove-up hearing.
A. Applicable Law
Section 6.701 of the Texas Family Code provides that in a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer. See Footnote 1 Tex. Fam. Code Ann. § 6.701 (West 2006). Defendants in divorce suits are not precluded from defending by their failure to plead, and consequently have the same right to rely on the observance of the rules and statutes governing proceedings in courts that other litigants have. Bostwick v. Bostwick, 73 Tex. 182, 187, 11 S.W. 178, 180 (1889). As a result, the respondent's failure to appear or answer is taken only as an admission of the allegations in the petition for divorce regarding residence and domicile. Osteen v. Osteen, 38 S.W.3d 809, 814 (Tex. App.-Houston [14 Dist.] 2001, no pet.). Therefore, even if the respondent fails to answer, the petitioner must adduce proof to support the material allegations in the petition for divorce. Agraz v. Carnley, 143 S.W.3d 547, 552 (Tex. App.-Dallas 2004, no pet.); Osteen, 38 S.W.3d at 814. Accordingly, a default judgment of divorce is subject to an evidentiary attack in a motion for new trial and on appeal. Agraz, 143 S.W.3d at 552; Osteen, 38 S.W.3d at 814.
Dist.] 2001, no pet.). In the context of divorce, that rule is narrower. See Osteen, 38 S.W3d at 814.
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Intrinsic fraud includes fraudulent instruments, perjured testimony, or any matter that was actually presented to and considered by the trial court in rendering the judgment assailed. Montgomery v. Kennedy, 669 S.W.2d 309, 313 (Tex. 1984). If a judgment has been procured by perjured testimony, a party's only remedy is by a direct attack in the same court that rendered the judgment. See generally, In re Cantu, 961 S.W.2d 482, 487 (Tex. App.-Corpus Christi 1997, orig. proceeding).
B. Application of the Law to the Facts
Specifically, Friedman alleges the following two statements made by Crowley during the default hearing, were false:
(1)
COUNSEL:Has your marriage become insupportable due to discord and conflict of personalities that destroys the legitimate ends of the marriage relationship?
CROWLEY:Yes.
(2)COUNSEL:You and your husband have entered into an agreement as to the division of the community property and community debt; is that correct?
CROWLEY:Correct.
We note that, according to the record, during the hearing the proposed final decree of divorce was not admitted into evidence, the divorce decree does not state that it was an agreed decree, Friedman did not sign the proposed divorce decree next to his printed name below the statement "Approved and Consented to as to Both Form and Substance," and other than Crowley's testimony, there is nothing in the record demonstrating that Friedman agreed to the division of the community property. However, even though the default divorce decree is subject to an evidentiary attack on appeal, Friedman did not raise the issue of Crowley's alleged false statements in his motion for new trial. As a result, there was no evidence in the record before the trial court as to this allegation. Accordingly, the portion of issue one that argues the default divorce decree should be set aside because it was procured by Crowley's alleged false testimony is decided against Friedman. IV. CONCLUSION
The trial court did not err when it denied Friedman's motion for new trial. Also, based on the record, we cannot conclude that the default divorce decree was procured by false testimony. The trial court's final decree of divorce is affirmed.
DOUGLAS S. LANG
JUSTICE
110793F.P05
Court of Appeals Fifth District of Texas at Dallas JUDGMENT
MICHAEL JAY FRIEDMAN, Appellant
V.
LAURA ANN FRIEDMAN, Appellee
No. 05-11-00034-CV
Appeal from the 199th Judicial District Court of Collin County, Texas. (Tr.Ct.No. 199- 54287-2010).
Opinion delivered by Justice Lang, Justices Murphy and Myers participating.
In accordance with this Court's opinion of this date, the trial court's final decree of divorce is AFFIRMED.
It is ORDERED that appellee Laura Ann Friedman recover her costs of this appeal from appellant Michael Jay Friedman.
Judgment entered July 24, 2012.
DOUGLAS S. LANG
JUSTICE