Mallory v. Mallory and OAG, NO. 14-06-01009-CV (Tex.App. - Houston [14th Dist.]
May 7, 2009)(
Brown) (post-answer default judgment reversed, insufficient notice)(due
process)(default judgment in
child support arrearage confirmation action was error)(motion
for new trial after default judgment entered)
Reversed and Remanded and Memorandum Opinion filed May 7, 2009.
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 1989-12935

M E M O R A N D U M   O P I N I O N

Joel Mallory appeals from a post-answer default judgment for child-support
under Chapter 231 of the Texas Family Code.  

Mallory argues that the trial court erred in granting the default judgment and denying
him a new trial because he did not receive proper notice of the hearing, thereby
denying him due process, he did not receive forty-five days’ notice of the hearing
pursuant to Texas Rule of Civil Procedure 245, and, alternatively, he satisfied the
standards set forth in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.
2d 124 (1939).  Mallory further argues that he is entitled to a new trial because the
reporter’s record is missing.

We reverse the trial court’s judgment and remand for a new trial.


Mallory and his wife divorced in 1991.  The couple had one minor child and, as part of
the divorce decree, the trial court ordered Mallory to pay child support in the amount
of $200.00 semi-monthly.  In January 2006, the Office of the Attorney General moved
to confirm child-support arrearage.  In July 2006, Mallory was served with the motion
to confirm and he timely filed an answer to the motion.

The attorney general sent notice to Mallory that a hearing in his case had been
scheduled for August 28, 2006.  The notice contained no detail as to what would
occur at the hearing or what motion had been set for hearing, only that a hearing was
scheduled.  The record does not reflect when the attorney general sent the notice, but
Mallory states on appeal that he received actual notice of the hearing on August 21,

A Title IV-D associate judge[1] held a hearing on the motion to confirm on August 28,
2006, and, when Mallory failed to appear, signed a default order in favor of the
attorney general in the amount of $24,022.01.[2]  On September 22, 2006, Mallory
filed a verified motion to set aside default judgment and for new trial.  The attorney
general did not file a response to or otherwise challenge the motion.  Mallory initially
set the motion for hearing, but later passed the hearing, and the motion was overruled
by operation of law.  Mallory appeals from the denial of his motion for new trial.


In his second issue, Mallory argues that the trial court erred in denying his motion for
new trial and failing to set aside the default judgment because he did not receive
proper notice of the potential for a disposition of his case or default setting.  We
agree that the notice sent to Mallory did not give him proper notice that his case could
be determined on the merits or a final default judgment taken in his absence.  The
trial court abused its discretion in denying the motion for new trial.

A trial court’s order denying a motion to set aside a default judgment or for new trial is
reviewed under an abuse-of-discretion standard.  Strackbein v. Prewitt, 671 S.W.2d
37, 38 (Tex. 1984); Martinez v. Martinez, 157 S.W.3d 467, 469 (Tex. App.-Houston
[14th Dist.] 2004, no pet).  The trial court abuses its discretion if it acts without
reference to any guiding rules or principles.  Goode v. Shoukfeh, 943 S.W.2d 441,
446 (Tex. 1997).

The trial court abuses its discretion in denying a motion for new trial if all of the
Craddock elements are met.  Bank One, Tex., N.A., v. Moody, 830 S.W.2d 81, 85
(Tex. 1992). Under Craddock, the defendant must demonstrate that (1) his failure to
appear was not intentional or the result of conscious indifference; (2) there is a
meritorious defense; and (3) the granting of a new trial will not operate to cause delay
or injury to the opposing party.  Craddock, 133 S.W.2d at 126; Ashworth v. Brzoska,
274 S.W.3d 324, 328-29 (Tex. App.-Houston [14th Dist.] 2008, no pet.).  The
Craddock requirements apply to post-answer default judgments.  Ivy v. Carrell, 407 S.
W.2d 212, 214-15 (Tex. 1966).

The law presumes that a trial court will hear a case only after giving proper notice to
the parties.  Ashworth, 274 S.W.3d at 329; Jones v. Tex. Dep’t of Public Safety, 803
S.W.2d 760, 761 (Tex. App.-Houston [14th Dist.] 1991, no writ).  Specifically, to
satisfy due- process requirements, a defendant in a post-answer default case must
have been given notice that the case could be decided on the merits in the event the
defendant failed to appear.  See Masterson v. Cox, 886 S.W.2d 436, 439 (Tex. App.-
Houston [1st Dist.] 1994, no writ).  If a defendant establishes that he did not receive
proper notice, he satisfies the first Craddock element and need not prove a
meritorious defense.[3]  See Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988).  In
that case, a new trial is warranted.  See Ashworth, 274 S.W.3d at 329.

The notice sent to Mallory stated in pertinent part:

A hearing in the above-referenced child support case has been scheduled before the
on 8/28/2006 at 8:00 A.M.

Please be aware that your case may require that you stay all day if necessary.  Much
depends upon the nature of your case and the size of the court’s docket.  In addition,
your case may require that you appear in court several times.

(emphasis in original).

The notice Mallory received did not give him notice that dispositive action would be
taken in his case in the event he failed to appear.  The notice did not even state what
motion or issue would be heard on August 28, 2006, much less that a default could
occur if Mallory failed to appear.  In Masterson, the court addressed whether notice of
a pretrial conference could support a default judgment rendered after the defendant
failed to appear.  886 S.W.2d at 437.  The court held that notice of a pretrial
conference did not provide sufficient notice that, if the defendant failed to appear, the
conference would become a disposition on the merits resulting in a default judgment.  
Id. at 439.  The Masterson court reversed the default judgment because it did not
comply with the requirements of due process.  Id.; see also Murphree v. Ziegelmair,
937 S.W.2d 493, 496 (Tex. App.-Houston [1st Dist.] 1995, no writ) (holding that
defendant who has appeared must be given notice that a failure to appear at pretrial
conference may result in dismissal or default to satisfy due process).

As in Masterson, Mallory had notice that a hearing would occur, but he did not have
notice that the hearing would be dispositive and a default judgment rendered in the
event he failed to appear.  

A post-answer default judgment rendered without proper notice is an abuse of
discretion.  See Masterson, 886 S.W.2d at 439.  The trial court did not give Mallory
notice that his failure to appear at the hearing could result in dispositive action being
taken in the form of a default order on child-support arrearage.  As a result, the trial
court abused its discretion in denying Mallory’s motion for new trial or to set aside the
default judgment.  Id.

Accordingly, we reverse the judgment of the trial court and remand for proceedings
consistent with this opinion.

Jeffrey V. Brown, Justice

Panel consists of Chief Justice Hedges and Justices Guzman and Brown.

[1]  In 2003, the legislature changed the title of a child support master to associate judge for
Title IV-D cases.  See Act of May 27, 2003, 78th Leg., R.S., ch. 1258, §§2-15, 25-28, 2003
Tex. Gen. Laws 3564, 3564-68, 3570 (eff. Sept. 1, 2003).

[2]  Mallory did not appeal the IV-D default judgment order to the referring court; therefore,
the order became the order of the referring court by operation of law.  See Tex. Fam. Code
Ann. §201.1041(a) (Vernon 2008).  

[3]  Whether a defendant who does not receive notice of a trial setting must satisfy the third
Craddock element appears to be the subject of disagreement among Texas appellate
courts.  See In re Marriage of Parker, 20 S.W.3d 812, 817 (Tex. App.-Texarkana 2000, no
pet.) (surveying approaches).  We need not decide that issue here, however, because the
attorney general does not contend, nor does the record indicate, that a new trial will work an
injury to it.  See Cliff v. Huggins, 724 S.W.2d 778, 779 (Tex. 1987).