Mallory v. Mallory (Tex.App.- Houston [14th Dist.] Jul. 2, 2009)(Substituted Opinion by
Brown)(post-answer default judgment for child-support arrearage reversed for lack of proper
notice)(objection to affidavit made on best knowledge and belief waived by failure to preserve
error)
A post-answer default judgment rendered without proper notice is an abuse
of discretion. 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.
REVERSED AND REMANDED: Opinion by Justice Brown
Before Chief Justice Hedges, Justices Guzman and Brown
14-06-01009-CV Joel Mallory v. Sharon W. Mallory and The Office of the Attorney General of
Texas Appeal from 310th District Court of Harris County
Trial Court Judge: LISA A. MILLARD
Appellee's Motion for Rehearing Overruled, Opinion of May 7, 2009, Withdrawn, Reversed and
Remanded and Substitute Memorandum Opinion filed July 2, 2009.
In The
Fourteenth Court of Appeals
____________
NO. 14-06-01009-CV
____________
JOEL MALLORY, Appellant
V.
SHARON W. MALLORY AND THE OFFICE OF THE ATTORNEY GENERAL OF
TEXAS, Appellees
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 1989-12935
S U B S T I T U T E M E M O R A N D U M O P I N I O N
We originally issued our opinion reversing and remanding the trial court's judgment on
May 7, 2009. The Office of the Attorney General filed a motion for rehearing on June 8,
2009. We overrule the motion for rehearing, vacate our May 7, 2009 judgment, withdraw
our previous opinion, and issue this substitute memorandum opinion in its place.
Our disposition of the appeal is unchanged.
Joel Mallory appeals from a post-answer default judgment for child-support arrearage
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.
Background
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, 2006.
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. After the motion for new trial was
overruled by operation of law, Mallory filed this appeal.
Analysis
As a preliminary matter, the attorney general contends that Mallory's verification was
insufficient to support his motion for new trial because Mallory attests in the affidavit that
the facts in his motion are true and correct only “to the best of his knowledge and belief,"
and not within his personal knowledge. But the attorney general waived this objection
when he failed to raise it in the trial court. See, e.g., Grand Prairie Indep. Sch. Dist. v.
Vaughan, 792 S.W.2d 944, 945 (Tex. 1990) (per curiam); Hou-Tex, Inc. v. Landmark
Graphics, 26 S.W.3d 103, 112 & n.9 (Tex. App.- Houston [14th Dist.] 2000, no pet.).
On rehearing, the attorney general argues that Mallory's recitation is “inconsistent with
personal knowledge" and cites Dailey v. Albertson's, Inc., 83 S.W.3d 222 (Tex. App.- El
Paso 2002, no pet.), for the proposition that the defect is one of substance and so may
be raised for the first time on appeal. In Dailey, the affiant recited that the facts in his
affidavit were based on his personal knowledge, but the content of the affidavit
affirmatively showed that he lacked personal knowledge. See id. at 227. Here, Mallory
stated in his motion that he received the attached notice of hearing from the attorney
general, a matter clearly within his personal knowledge. Further, the attorney general
does not dispute that the attached notice was the notice he sent, and he does not
contend that he sent any other notices to Mallory. Although the attorney general cites
additional authorities, none of them hold that a complaint about the recitation of personal
knowledge in a verification may be made for the first time on appeal. For this reason, we
overrule the attorney general's motion for rehearing.
We next turn to the substance of this appeal. 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
Court IV-D MASTER'S COURT #3, 49 SAN JACINTO, 2ND FLOOR, HOUSTON, TX 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.
/s/ 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).
CLAIMS AND DEFENSES IN TEXAS COURTS | INDEX TO HOUSTON CASE LAW PAGES |
TEXAS COURT OF APPEALS OPINIONS
HOUSTON OPINIONS HOME PAGE