Opinion
No. 06-20-00095-CV
04-19-2021
IN THE MATTER OF THE MARRIAGE OF ANTHONY LYNN WILLIAMS AND THERESA GAYLE WILLIAMS
On Appeal from the County Court at Law Walker County, Texas
Trial Court No. D2018093 Before Morriss, C.J., Burgess and Stevens, JJ.
MEMORANDUM OPINION
Anthony Lynn Williams filed a petition for divorce from Theresa Gayle Williams in the County Court at Law of Walker County, Texas. After Theresa failed to answer the lawsuit, the trial court entered a default judgment granting the divorce and entering a division of community property. In her sole point of error on appeal, Theresa challenges the trial court's property division. Consistent with the precedent of the Waco Court of Appeals, we find Theresa's point of error unpreserved. As a result, we affirm the trial court's judgment.
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001. We follow the precedent of the Tenth Court of Appeals in deciding this case. See TEX. R. APP. P. 41.3. --------
I. Factual Background
It is undisputed that Theresa was duly served with citation on August 18, 2020, but failed to answer the lawsuit. As a result, the trial court entered a default judgment dividing the marital estate after a brief hearing. On November 12, Theresa filed a motion for new trial on the ground that Anthony's attorney "lied . . . by telling her he would advise her of the final hearing in this cause and then told her it was not scheduled when he knew same had been heard and final decree has already been entered."
At the motion for new trial hearing, Theresa admitted that she had been served with citation on August 18 but failed to file an answer because she believed that she and Anthony could agree on the disposition of community assets. According to Theresa, she called Anthony's attorney after she was served and received his assurance that he would advise her of any final hearing date. Theresa said Anthony's counsel never called, which resulted in her failure to appear at the final hearing. Theresa also believed that the divorce decree failed to divide some community assets.
Anthony's counsel testified that he made no promises to Theresa and never said that he would inform her of any hearing date. His secretary, Rosa Salgado Snyder, spoke with Theresa, who wanted to see if they could settle the case. Snyder, who was present during the conversation between Theresa and Anthony's counsel, testified that counsel made no promises to Theresa, never told her not to answer the lawsuit, and never said that he would apprise her of upcoming hearing dates.
After the hearing, the trial court denied Theresa's motion for new trial.
II. Theresa Failed to Preserve Her Sole Point of Error
"A trial court's denial of a motion for new trial is reviewed for abuse of discretion." Matter of Marriage of Sandoval, No. 19-1032, 2021 WL 935908, at *2 (Tex. Mar. 12, 2021); see Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009). To set aside a default judgment, a defendant must show the following:
Under Craddock, . . . a trial court's discretion is limited, and it must "set aside a default judgment if (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 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.'"Sandoval, 2021 WL 935908, at *2 (quoting Sutherland v. Spencer, 376 S.W.3d 752, 754 (Tex. 2012) (quoting Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (1939))). "The defaulting defendant 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." Freeman v. Pevehouse, 79 S.W.3d 637, 641 (Tex. App—Waco 2002, no pet.).
Here, Theresa does not complain on appeal that the trial court erred by denying her motion for new trial because she established the Craddock elements. Under the precedent of the Waco Court of Appeals, this omission results in a failure to preserve error of other claims raised on appeal, including whether the trial court erred in its property division. Matter of the Marriage of Jackson, No. 10-17-00403-CV, 2018 WL 4925780, at *1 (Tex. App.—Waco Oct. 10, 2018, no pet.) (mem. op.); see Ellis v. Ellis, No. 13-07-0034-CV, 2008 WL 328025, at *1 (Tex. App.—Corpus Christi Feb. 7, 2008, pet. denied) (mem. op.) (also finding that an appellant fails to preserve error if she only complains that the trial court abused its discretion in dividing the community estate without arguing that the trial court abused its discretion by failing to grant a motion for new trial after analyzing Craddock elements following a default judgment).
As stated by the Waco court, "It is not enough for appellant to argue the Craddock elements only in his motion for new trial; rather, compliance with Craddock must also be raised on appeal." Jackson, 2018 WL 4925780, at *1 (citing Ellis, 2008 WL 328025, at *1; Stewart v. C.L. Trammell Props., Inc., No. 05-04-01027-CV, 2005 WL 2234637, at *2 (Tex. App.—Dallas Sept. 15, 2005, no pet.) (supp. mem. op. on reh'g)). Because Theresa only asks whether the trial court abused its discretion in the property division, and fails to address the Craddock elements on appeal, we overrule her sole, unpreserved point of error.
III. Conclusion
We affirm the trial court's judgment.
Ralph K. Burgess
Justice Date Submitted: March 19, 2021
Date Decided: April 19, 2021