Opinion
No. 04-05-00587-CV
Delivered and Filed: May 10, 2006.
Appeal from the County Court at Law, Val Verde County, Texas, Trial Court No. 1963, Honorable Sergio J. Gonzalez, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Katherine T. Sorenson filed an amended petition for enforcement of a divorce decree. Jeremy Sorenson answered and requested attorney's fees and costs based on his assertion that the petition was frivolous. The amended petition was set for dismissal for want of prosecution; however, Katherine's attorney appeared at the dismissal hearing and obtained a reset for a "final hearing." Although Katherine's attorney believed the final hearing would only result in the dismissal of Katherine's petition, a hearing was held on Jeremy's assertion that the petition was frivolous, and witnesses were examined and cross-examined. The trial court entered an order dismissing Katherine's amended petition and awarding Jeremy attorney's fees and costs.
Katherine's sole issue on appeal is that the trial court erred in denying her motion for new trial under the standards set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (1939). " Craddock sets forth the traditional elements of proof required to obtain a new trial following a default judgment." LeBlanc v. LeBlanc, 778 S.W.2d 865, 865 (Tex. 1989). Craddock has no application where a party's attorney appears for trial, and a trial on the merits is conducted. LeBlanc, 778 S.W.2d at 865; In re K.C., 88 S.W.3d 277, 279 (Tex.App.-San Antonio 2002, pet. denied); Curtis v. Comm'n for Lawyer Discipline, 20 S.W.3d 227, 236 n. 4 (Tex.App.-Houston [14th] 2000, no pet.). In this case, Katherine's attorney appeared at the hearing before the trial court, and a trial on the merits of Jeremy's assertion was conducted. Accordingly, Katherine "is not entitled to avail herself of Craddock, [and] the trial court did not abuse its discretion in denying her motion for new trial." In re K.C., 88 S.W.3d at 279.
The trial court's order is affirmed.