Send this document to a
colleague

Close
This Window

Reversed and Remanded and Memorandum Opinion filed March
3, 2009.

In The

Fourteenth Court
of Appeals

_______________

NO. 14-07-00311-CV

_______________

IN THE INTEREST OF K.A.C.O &
J.C.C.O.

On Appeal from the 245th District
Court

Harris County, Texas

Trial Court Cause No. 2003-07057

M E M O R
A N D U M   O P I N I O N

This case involves a
post-answer default judgment and related rulings in a suit affecting the
parent-child relationship (SAPCR).  In seven issues, appellant
Patrick J. Combe-Ovadia contends the trial court abused its discretion by
(1) failing to set aside the default judgment entered against him and in
favor of Amarit Gonzalez; (2) striking his amended pleadings and jury
demand; (3) modifying his periods of possession of his two minor children;
(4) issuing permanent injunctions; (5) determining a risk of international
child abduction existed and issuing related precautionary orders; and (6)
awarding attorney=s fees and conditioning his
right of appeal.  We reverse and remand for a new trial.

I.
BACKGROUND

On July 20, 2004, Patrick and
Amarit were divorced and appointed joint managing conservators of their
two minor children, K.A.C.O. and J.C.C.O.  The divorce decree
designated Amarit as the primary joint managing conservator with the
exclusive right to establish the children=s domicile and legal
residence.

On June 7, 2005, Amarit filed a
petition to modify the parent-child relationship.  In her petition,
she alleged that Patrick, who has dual American and French citizenship,
exhibited behavior demonstrating a high risk of international abduction
and requested that the court enter temporary orders for the
children=s safety and welfare.
Patrick filed an answer.  The trial court issued a scheduling order
setting the case for trial on July 10, 2006, at 10:00 a.m.

On June 27, 2006, Amarit filed
her second amended petition seeking appointment as sole managing
conservator and modification of the parents= possessory rights and access
to the children.  Due to a vacation letter filed by
Patrick=s counsel, the parties agreed
to re-set the trial date.  Amarit=s trial counsel filed a notice
of trial setting advising the parties that the trial had been re-set to
November 13, 2006, at 10:00 a.m.

On October 12, 2006, Patrick
filed a jury demand.  On October 25, 2006, he filed a
counter-petition to modify the parent-child relationship in which he
requested appointment as primary joint managing conservator as well as
other modifications.  Amarit filed a motion to strike
Patrick=s jury request.  Due to a
death in her family, Patrick=s counsel filed a motion for
continuance of the trial setting.  On November 9, 2006, the associate
judge conducted a hearing at which he granted the motions to strike
Patrick=s jury demand and for
continuance.  The trial was re-set for December 11,
2006.

On November 10, 2006, Patrick
filed his first amended counter-petition in which he added a jury demand
and a request for mediation.  Amarit was not served with the amended
petition until November 28, 2006.  On November 13, 2006, Patrick
filed a notice of appeal from the associate judge=s ruling striking his jury
request.  Following a hearing, the presiding judge placed the case on
the court=s jury docket.  On
December 1, 2006, Amarit filed a motion to strike Patrick=s amended
counter-petition.

On December 5, 2006, at 8:00
a.m., a pre-trial conference was held.  Due to car trouble,
Patrick=s counsel failed to appear and
her attempts to notify the court of her delay were unsuccessful.  At
the conference, Amarit re-urged her motion to strike Patrick=s jury request and requested
that the court strike Patrick=s amended
counter-petition.  The trial court granted both motions in orders
signed on December 11, 2006.

A bench trial was held at 8:00
a.m. on December 11, 2006.  Patrick and his counsel were not
present.  Patrick arrived at 8:40 a.m., but trial was already
concluding.  At the conclusion of trial, the court announced a
default judgment (1) granting Amarit=s request to maintain the
children=s American and French
passports; (2) prohibiting international travel with the children without
first obtaining court approval; (3) finding a risk of international
abduction and granting related injunctions; (4) issuing a standard
possession order; (5) awarding attorney=s fees to Amarit=s counsel; and (6) ordering
Patrick to deposit $10,000.00 to be held in trust for Amarit=s attorneys in the event he
filed an appeal.  Entry of judgment was set for December 15,
2006.

On December 13, 2006, Patrick
filed a motion to vacate and set aside the default judgment and to
reinstate the case on the jury docket for a new trial.  On December
15, 2006, the court held a hearing at which it denied Patrick=s motion and signed the final
default judgment order.

II.
ANALYSIS

A.
Standard of Review

The issues in this case are
subject to review under an abuse of discretion standard.  See Am.
Flood Research, Inc. v. Jones, 192 S.W.3d 581, 583 (Tex. 2006)
(reviewing imposition of sanctions for abuse of discretion);
Mercedes-Benz Credit Corp. v. Rhyne, 925 S.W.2d 664, 666 (Tex.
1996) (reviewing denial of jury demand under abuse of discretion
standard); State Bar of Tex. v. Kilpatrick, 874 S.W.2d 656, 658
(Tex. 1994) (trial court=s decision to allow or deny
trial amendment may be reversed only upon showing of clear abuse of
discretion); Cliff v. Huggins, 724 S.W.2d 778, 778-79 (Tex. 1987)
(applying abuse of discretion standard to review of denial of motion to
set aside post-answer default judgment and for new trial).  To
determine whether a trial court abused its discretion, we must decide
whether it acted without reference to any guiding rules or principles; in
other words, whether the act was arbitrary or unreasonable.
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) ;
Swaab v.
Swaab, No.
14-06-00593-CV, ___S.W.3d ___, 2008 WL 1838023, at *3 (Tex.
App.CHouston
[14th Dist.] Apr. 24, 2008, no pet.).

B.
Default Judgment

In his first issue, Patrick
contends the trial court abused its discretion in failing to set aside the
final default judgment entered against him.  He argues that the trial
court erred in denying his motion for new trial because he had no notice
of the time the trial was set to begin.

The
seminal case setting forth the elements of proof a defaulting party must
show to obtain a new trial following default judgment is Craddock
v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124 (Tex.
1939).  See also Estate of Pollack v. McMurrey, 858 S.W.2d
388, 390 (1993); Lowe v. Lowe, 971 S.W.2d 720, 723 (Tex.
App.CHouston
[14th Dist.] 1998, pet. denied).  Although Craddock was a
no-answer default judgment, the Texas Supreme Court has held that it
applies equally to post-answer default judgments.  See Lowe,
971 S.W.2d at 723 (citing LeBlanc v. LeBlanc, 778 S.W.2d 865, 865
(Tex. 1989) (per curiam)).  Under the Craddock test, a default
judgment should be set aside and a new trial ordered when the defaulting
defendant (1) shows that the failure to appear was not intentional or the
result of conscious indifference, but was due to an accident or mistake;
(2) sets up a meritorious defense; and (3) shows that a new trial would
cause neither delay nor work an injury to the plaintiff.
Craddock, 134 Tex. at 393, 133 S.W.2d at
126.

This court
has expressed hesitance about applying the Craddock test to
SAPCRs.  See Martinez v. Martinez, 157 S.W.3d 467, 469-70 Tex.
App.CHouston
[14th Dist.] 2004, no pet.)  (AAlthough
the Craddock test has been routinely applied to suits affecting the
parent-child relationship (SAPCRs) by appellate courts in Texas, this
court has previously noted its discomfort in doing so ....@)
(citation omitted); Lowe, 971 S.W.2d at 725 (AAlthough
we have found that Mrs. Lowe met the three prongs of the Craddock
test, we feel obligated to note our reluctance to apply it to a suit
affecting the parent-child relationship.@).[1]
Further, we are not the only court to question the appropriateness of
using the Craddock test for SAPCRs.  See, e.g.,
Rhamey v. Fielder, 203 S.W.3d 24, 29 (Tex. App.CSan
Antonio 2006, no pet.) (urging Texas Supreme Court to reconsider whether
Craddock is appropriate standard in context of SAPCR); Comanche
Nation v. Fox, 128 S.W.3d 745, 750 (Tex. App.CAustin
2004, no pet.) (ACraddock
does not
fit well into the context of a consideration of the best interests of the
child.@); In
re A.P.P., 74 S.W.3d 570, 575 (Tex. App.CCorpus
Christi 2002, no pet.) (finding second prong of Craddock test
difficult to apply in SAPCR where primary issue before court is
child=s best
interest); see also Dorrough v. Cantwell, No. 2-05-208-CV, 2006 WL
2034016, at * 6 (Tex. App.CFort Worth
July 20, 2006, pet. denied) ( per curiam) (mem. op., not designated for
publication) (noting reluctance of other courts in applying
Craddock test in SAPCRs given overriding consideration of best
interest of child).  However, absent contrary guidance from the
supreme court, we remain bound to apply Craddock, albeit
liberally.  See Martinez, 157 S.W.3d at 470; Comanche,
128 S.W.3d at 750.

Under the
first prong of the Craddock test, the trial court was required to
determine whether Patrick=s failure
to appear at trial was either intentional or the result of conscious
indifference on his part.  See Craddock, 133 S.W.2d at 126;
Martinez, 157 S.W.3d at 470.  In making this determination, a
court must look to the knowledge and acts of the defendant.  See
Martinez, 157 S.W.3d at 470.  If a defendant=s factual
assertions are not controverted by the plaintiff, the defendant satisfies
his burden if he has set forth facts which, if true, negate a finding of
intentional or conscious indifference.  See Dir., State Employees
Workers= Comp.
Div. v. Evans, 889
S.W.2d 266, 269 (Tex. 1994).  The court reviews the entire record in
determining whether the defaulting party=s
assertions are controverted.  Id.

Notice of
a trial setting does not ordinarily appear in the transcript and need not
affirmatively appear in the record.  See Bruneio v. Bruneio,
890 S.W.2d 150, 155 (Tex. App.CCorpus
Christi 1994, no writ); see also Garcia v. Arbor Green Owners
Ass=n,
Inc., 838
S.W.2d 800, 803 (Tex. App.CHouston
[1st Dist.] 1992, writ denied).  Rather, the law presumes that a
trial court will hear a case only after proper notice to the
parties.  Boateng v. Trailblazer Health Enters., L.L.C., 171
S.W.3d 481, 492 n.4 (Tex. App.CHouston
[14th Dist.] 2005, pet. denied); Hanners v. State Bar, 860 S.W.2d
903, 908 (Tex. App.CDallas
1993, writ dism=d).
To rebut this presumption, an appellant has the burden to affirmatively
show a lack of notice by affidavit or other competent evidence.
Jones v. Tex. Dep=t of Pub.
Safety, 803
S.W.2d 760, 761 (Tex. App.CHouston
[14th Dist.] 1991, no writ).

In his
motion for new trial, Patrick asserted that his failure to timely
appear at trial was not intentional but rather because he had no notice of
the 8:00 a.m. setting on December 11.  In support of his motion,
Patrick attached his affidavit which established the following
facts.  His lawyer advised him that the trial was scheduled to begin
at 10:00 a.m. on December 11.  He spent most of the Friday preceding
trial with his counsel and witnesses to prepare for trial on Monday.
He had arranged for witnesses to come from France and Belgium to testify
at the trial.  Patrick and one of his witnesses, David Martin,
arrived in the courtroom at approximately 8:40 a.m. on December 11.
In Martin=s
affidavit, also attached to the motion, Martin stated he was told by
Patrick=s attorney
that trial would begin on December 11, 2006, at 10:00 a.m.  In
addition to the affidavits, Patrick attached copies of three subpoenas
instructing witnesses to appear in the courtroom on December 11, 2006, at
10:00 a.m.

At the
December 15 hearing, Patrick testified that he believed the trial was
scheduled to begin at 10:00 a.m. on December 11 based on his
attorney=s
representation.  Patrick=s counsel
also testified that, at the November 9 hearing, the associate judge had
advised her off the record that the trial would begin at 10:00 a.m. on
December 11.  She further testified that, following that hearing, she
never received written or oral notice that the trial was set to begin at
8:00 a.m. on December 11.

Amarit did
not file a written response to Patrick=s motion
to vacate or otherwise controvert his factual assertions in the trial
court.  On appeal, she contends the trial court properly concluded
that Patrick had notice of the 8:00 a.m. trial setting based upon the
following: (1) the docket sheet; (2) the judge=s
statements during the November 28 hearing; (3) the judge=s
statements during the December 15 hearing on Patrick=s motion
for new trial; and (4) the fact that she, her attorney, her witnesses, the
judge, and the court coordinator were present at 8:00
a.m.

The docket
sheet in this case reflects the following notation for November 28, 2006:
AJury trial
12-11-06 @ 8am - be prepared.@
However, Amarit=s reliance
on the court=s docket
sheet is misplaced.  In general, a docket entry forms no part of the
record that may be considered on appeal; instead, it is merely a
memorandum made for the convenience of the clerk and the trial
court.  See Rush v. Barrios, 56 S.W.3d 88, 95 (Tex.
App.CHouston
[14th Dist.] 2001, pet. denied); Guyot v. Guyot, 3 S.W.3d 243, 246
(Tex. App.CFort Worth
1999, no pet.).  One reason for not considering docket entries on
appeal is that they are inherently unreliable.  See Daniel v.
Falcon Interest Realty Corp., 190 S.W.3d 177, 188 (Tex.
App.CHouston
[1st Dist.] 2005, no pet.); Guyot, 3 S.W.3d at 246.

Amarit
also asserts that the judge notified the parties of the 8:00 a.m. start
time during the November 28 hearing on Patrick=s appeal
from the associate judge=s ruling
granting Amarit=s motion
to strike his jury demand.  However, a review of the hearing
transcript reveals no mention of the trial start time.  Instead,
after being informed by counsel that the case was set for December 11, the
judge responded, AGive me a
few minutes and I=ll get
back to all of you,@ after
which the hearing concluded.  Amarit asserts that because the docket
sheet reflects an 8:00 a.m. start time, A[i]t can
be inferred that in open court [] Judge Kuntz announced the trial date and
time on November 28, 2006, in the presence of both counsel.@  As
previously discussed, Amarit=s reliance
on the docket sheet to prove Patrick had notice of the trial setting is
without merit.  See Rush, 56 S.W.3d at 95; Guyot, 3
S.W.3d at 246.

Next,
Amarit argues that the trial court=s
conclusion that Patrick had proper notice is supported by the
judge=s
statements during the December 15 hearing on Patrick=s motion
for new trial.  After denying a request by Patrick=s counsel
to solicit testimony from Amarit=s attorney
on the issue of notice, the trial court stated as follows:

THE
COURT:          And this
court from the bench announced that there would be pretrial, that I would
give you your jury trial, but we will have a pretrial because this
court=s pretrial
procedures for trial is very strenuous because we don=t bring
juries over here until we=re ready
for trial and every pretrial would be at 8:00 o=clock.
We would go to trial as scheduled on the 11th starting at 8:00
o=clock
because we call the jury at 8:00 o=clock.
The jury=s called
at 8:00 o=clock.
Every trial in this court and from the bench that day, it was announced at
8:00 o=clock.

We find
Amarit=s argument
unavailing for several reasons.  First, a trial court applying the
Craddock standard must review the record to determine whether a
defaulting party=s
assertions are controverted.  The above statements did not form part
of the record before the trial court; rather, they reflect the
court=s
disagreement with Patrick=s
assertion that he had not received notice of the 8:00 a.m. start
time.  Second, it is the plaintiff who must
controvert the defendant=s factual
assertions.  Patrick has provided an excuse and Amarit did not
factually controvert this excuse in the record.  See Fid. &
Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 576 (Tex .
2006) (per curiam) (where plaintiff did not controvert
defendant=s
affidavits setting forth excuse for losing lawsuit service papers, trial
court was not at liberty to disregard it).  If a
defendant=s factual
assertions are not controverted by the plaintiff, the defendant satisfies
his burden if he has set forth facts which, if true, negate a finding of
intentional or conscious indifference.  See Evans, 889 S.W.2d
at 269.  Third, in determining whether a defendant has satisfied the
first prong, a court must look to the knowledge and acts of the defendant.
See Martinez, 157 S.W.3d at 470. A[T]he
Craddock standard is one of intentional or conscious
indifferenceCthat the
defendant knew it was sued but did not care.@
Fid. & Guar. Ins. Co., 186 S.W.3d at 575-76.  In his
affidavit, Patrick stated that he did not know that the trial was set to
begin at 8:00 a.m.; had spent most of the preceding Friday with his
counsel and witnesses to prepare for trial on Monday; had arranged for
witnesses to come from France and Belgium to testify at the trial; and had
arrived in the courtroom with Martin at 8:40 a.m.  This
evidenceCuncontroverted
by AmaritCdoes not
demonstrate intentional or conscious indifference.

Finally,
Amarit argues that Patrick had notice of the trial setting because
everyone else involved with the trial was present at 8:00 a.m.  We
decline to indulge such a presumption.  Further, Amarit cites no
authority to support this proposition, nor are we aware of any.  In
any case, Amarit failed to raise this argument in a response to
Patrick=s motion
or controvert it in an affidavit and, thus, it was not part of the record
before the trial court.

We note
that a defaulting party must provide some excuse, though not necessarily a
good excuse, for failing to appear.  Fox, 128 S.W.3d at 750;
McClure v. Landis, 959 S.W.2d 679, 681 (Tex. App.CAustin
1997, pet. denied).  We need not evaluate the veracity of
Patrick=s excuse;
rather, a Aslight
excuse@ often
will suffice to set aside a default judgment.  See Fox, 128
S.W.3d at 750.  Liberally construing Craddock in this SAPCR,
and in light of the fact that Amarit did not factually controvert his
excuse, we conclude that Patrick has satisfied Craddock=s first
element.

As to the
second Craddock element, Amarit argues that Patrick failed to set
up a meritorious defense.  However, we need not consider whether
Patrick has satisfied this element because when a defaulting defendant
shows that he was not given notice of a trial setting, the party is
relieved of his burden to show a meritorious defense.  See Mathis
v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005); see also Garcia v.
Vera, No. 01-05-01161-CV, 2006 WL 2865033, at *4 (Tex. App.
C Houston
[1st Dist.] Oct. 5, 2006, no pet.) (mem. op., not designated for
publication).  Patrick alleges in his motion for new trial that he
did not receive notice of the 8:00 a.m. setting.  At the December 15
hearing, his trial counsel testified that she never received written or
oral notice that the trial was to begin at 8:00 a.m. on December 11.
Amarit did not controvert Patrick=s factual
allegations in the record.  We conclude that Patrick need not show
the second prong of Craddock.

Similarly,
Patrick is not required to satisfy Craddock=s third
prong.  Where a party did not receive notice of a trial setting,
courts dispense with the burden to show that a motion for new trial would
not cause delay or injury to the plaintiff.  See Garcia, 2006
WL 2865033, at *4; Mahand v. Delaney, 60 S.W.3d 371, 375 (Tex.
App.CHouston
[1st Dist.] 2001, no pet.).

We
conclude that Patrick met the requirements of Craddock and that the
trial court erred in overruling his motion for new trial.  We sustain
his first issue.

C.
Striking Patrick=s Amended
Pleading

In his
second issue, Patrick contends the trial court abused its discretion by
striking his amended counter-petition.  His argument is
two-fold.  First, he argues that Amarit failed to demonstrate
surprise as required by Texas Rule of Civil Procedure 63.  Second, to
the extent the trial court struck his amended pleading as a sanction for
his counsel=s failure
to appear at the pre-trial conference, he contends the sanction was
neither appropriate nor just.

1.
Texas Rule of Civil Procedure 63

When no
pre-trial order is in place, a party has a right to amend its pleadings up
to seven days before trial as long as the amendment does not operate as a
surprise to the opposing party.  See Tex. R. Civ. P. 63;
Kilpatrick, 874 S.W.2d at 658.  A judge may not refuse a trial
amendment unless (1) the opposing party presents evidence of surprise or
prejudice, or (2) the amendment asserts a new cause of action or defense
and is thus prejudicial on its face.  Kilpatrick, 874 S.W.2d
at 658 (citing Greenhalgh v. Serv. Lloyds Ins. Co., 787 S.W.2d 938,
939 (Tex. 1990)); Flo Trend
Sys., Inc. v. Allwaste, Inc., 948
S.W.2d 4, 7 (Tex. App.CHouston
[14th Dist.] 1997, no writ).

On October
25, 2006, Patrick filed a counter-petition seeking to be
appointed the children=s primary joint managing
conservator.
After the trial was re-set to December 11, 2006, Patrick filed a first
amended counter-petition on November 10, 2006, in which he requested a
jury and mediation.  Amarit filed a motion to strike the amended
pleading.  On December 5, 2006, at 8:00 a.m., the court conducted a
pre-trial conference during which Amarit=s motion
to strike was considered.  Due to car trouble, Patrick=s counsel failed to appear at
the hearing and her attempts to notify the court of her delay were
unsuccessful.  The court granted Amarit=s motion.

In her
motion to strike, Amarit objected to being served with Patrick=s amended
counter-petition less than two weeks before trial because her answer would
not be due by the trial date and the case had been on file since June
2005.  In support of the motion, Amarit=s counsel
stated at the pre-trial conference, A[w]e feel that it was
untimely....  We feel that they filed frivolously a motion for
custody less than two weeks before trial and there is just no reason to do
that other than to harass my client and to run up attorney=s fees.@[2]  This does not constitute
evidence of surprise.  Moreover, the only substantive differences
between the original and amended pleadings are the inclusion of
Patrick=s jury demandCwhich previously was filed on
October 12, 2006Cand a request for
mediation.  Such amendments do not operate as a surprise.

2.
Sanctions

Patrick also contends that the
trial court=s order striking his amended
pleading appears to be a sanction against him for his counsel=s failure to appear at the
pre-trial conference.  He argues that such a sanction was neither
just nor reasonable.

At the December 5, 2006
hearing, the trial judge asked her staff whether anyone had heard from
Patrick or his counsel.  After being told they had not, the judge
stated,

THE
COURT:
No contact has been made with the Court [sic] whatever.  The Court
having considered the fact that the other side was requesting this jury,
the Court has arranged to give them their jury, having stressed the
importance of the pretrial in getting ready for a jury, it=s not too late to impanel that
jury once we bring them over and them not appearing and it=s after 8:15 and we have not
heard from them, the Court will grant your motion to strike their
pleadings, their first amended counterpetition and also, to strike their
request for the jury trial and we will proceed as scheduled to trial on
Monday, nonjury.

We agree with Patrick that the
court=s decision to strike his
amended counter-petition appears to be in the nature of a
sanction.

Texas Rule of Civil Procedure
166 permits trial courts to hold pre-trial conferences and to enter orders
establishing agreements of the parties as to any of the matters considered
which control the subsequent course of the case up to trial.  Tex. R. CIV. P. 166.  The
trial court has power, implicit under Rule 166, to sanction a party for
failing to obey its pre-trial orders.  Koslow=s v. Mackie, 796 S.W.2d
700, 703 (Tex. 1990); Taylor v. Taylor, 254 S.W.3d 527, 532 (Tex.
App.CHouston [1st Dist.] 2008, no
pet.).  We review a trial court=s imposition of sanctions under
an abuse of discretion standard.  See Koslow=s, 796 S.W.2d at 704.  In
conducting our analysis, we recognize that the trial court=s discretion in imposing
sanctions is governed by the standards set out in TransAmerican Natural
Gas Corp. v. Powell, 811 S.W.2d 913 (Tex. 1991).  See
Taylor, 254 S.W.3d at 532 (concluding TransAmerican standard
applies to sanctions imposed for violating pre-trial order); Wal-Mart
Stores, Inc. v. Butler, 41 S.W.3d 816, 817-18 (Tex. App.CDallas 2001, no pet.) (applying
TransAmerican standard to sanctions imposed for violation of
pre-trial order).

In TransAmerican, the
supreme court developed a two-part test for courts to apply when
determining whether a sanction is just.  811 S.W.2d at 917.
First, there must be a direct relationship among the offensive conduct,
the offender, and the sanction imposed. Spohn Hosp. v. Mayer, 104
S.W.3d 878, 882 (Tex. 2003) (citing TransAmerican, 811 S.W.2d at
917).  A just sanction must be directed against the abuse and
tailored to remedy any prejudice caused to the innocent party, and the
sanction should be imposed upon the offender.  Id.
Second, just sanctions must not be excessive.
TransAmerican, 811 S.W.2d at 917; Taylor, 254 S.W.2d at
533.  In other words, a sanction imposed should be no more severe
than necessary to satisfy its legitimate purposes, which include securing
compliance with discovery rules, deterring other litigants from similar
misconduct, and punishing violators.  Taylor, 254 S.W.2d at
533.  For this reason, courts must be certain that less stringent
sanctions would not have sufficed to fully promote compliance.
TransAmerican, 811 S.W.2d at 917; Taylor, 254 S.W.2d at
533.

We first consider whether the
sanction imposed here was directly related to the abusive conduct.
Patrick and his counsel do not dispute that they were aware of the
pre-trial conference.  The record reflects that Patrick=s counsel experienced car
trouble on her way to the hearing and that she attempted to contact the
court beginning at approximately 7:30 a.m.  She left a message on the
court coordinator=s voice mail system at 8:01
a.m. to advise of her delay, and her husband left a similar message on her
behalf at 8:20 a.m.  She arrived at the courtroom between 8:45 a.m.
and 9:00 a.m., after the hearing had concluded.  She asked the clerk
and the coordinator whether her messages had been received.  The
coordinator checked her messages and played them aloud.  After
advising the judge of counsel=s arrival, the coordinator
returned and relayed a message from the judge to Patrick=s counsel.[3]
Patrick=s counsel ordered a copy of the
hearing transcript from the court reporter, filed two motions, and spoke
with the coordinator regarding the procedure for obtaining a copy of the
voice mail messages.  Nothing in the record indicates that
counsel=s failure to appear at the
pre-trial conference was due to any lack of diligence on her part.
More importantly, her failure to appear was in no way attributable to
Patrick.

We next consider whether the
sanction was excessive.  Nothing in the record indicates that the
trial judge considered lesser sanctions or that lesser sanctions would not
have been effective.  See Taylor, 254 S.W.3d at 533; In re
Bledsoe, 41 S.W.3d 807, 814 (Tex. App.CFort Worth 2001, orig.
proceeding).  Nor did the court=s scheduling order warn Patrick
that his counsel=s failure to timely appear at
the hearing could result in sanctions against him.  See In re
Bledsoe, 41 S.W.3d at 814 (noting trial court=s docket control order did not
warn party that non-compliance with order would result in imposition of
sanctions striking his pre-trial pleadings).  Further, the order
striking Patrick=s amended pleading was not
supported by a motion for sanctions or the court=s invocation of its own power
to sanction, and Patrick had no opportunity to be heard on the
issue.  The record also does not reflect any past conduct by Patrick
that would warrant the imposition of such a harsh sanction.  We are
unaware of any evidence that Patrick or his counsel engaged in any type of
bad faith conduct, abused the discovery process, or otherwise failed to
comply with the trial court=s orders prior to the pre-trial
conference.  See Taylor, 254 S.W.3d at 534.

We conclude that to the extent
the court=s order was intended as a
sanction, such a sanction fails under both TransAmerican
prongs.  Accordingly, we conclude the trial court abused its
discretion by striking Patrick=s amended
counter-petition.  We sustain his second issue.

D.
Striking Patrick=s Jury Demand

In his third issue, Patrick
contends the trial court abused its discretion by striking his jury demand
as a sanction for his counsel=s failure to appear at the
pre-trial conference.

As previously noted, after the
associate judge initially granted Amarit=s motion to strike
Patrick=s jury demand, the presiding
judge placed the case on the jury docket.  However, at the December
5, 2006 pre-trial conference, Amarit re-urged her motion to strike.
The trial judge granted the motion and struck Patrick=s jury demand.

A request for a jury trial made
more than 30 days in advance of trial is presumed to be reasonable.
Halsell v. Dehoyos, 810 S.W.2d 371, 371 (Tex. 1991) (per
curiam).  A party opposing the request may rebut the presumption by
showing that a jury trial will (1) injure the party; (2) disrupt the trial
court=s docket; or (3) impede the
ordinary handling of the court=s business.
Id.  Patrick=s jury demand was filed 31 days
before the November 13, 2006 trial setting and, thus, is presumed to be
reasonable.  Amarit did not establish the existence of any of the
foregoing factors in her motion to strike or at the pre-trial conference;
rather, her counsel asserted that the jury demand was Aunfair surprise@ and A[w]e don=t feel a jury is
necessary.@  Thus, Amarit failed to
rebut the presumption of reasonableness.

Moreover, in light of the
judge=s statements at the pre-trial
conference, we are persuaded that she struck Patrick=s jury demand as a sanction for
his counsel=s failure to appear at the
hearing.  As with the striking of his amended pleading, we likewise
find this sanction to be neither just nor reasonable under the
TransAmerican standard.  The sanction imposed was not directly
related to the offensive conduct.  We find no evidence that
counsel=s failure to appear at the
pre-trial conference was due to any lack of diligence on her part or in
any way attributable to Patrick.  Moreover, nothing in the record
suggests that the trial judge considered lesser sanctions or that lesser
sanctions would not have been sufficient.

In her brief, Amarit argues
that even if the trial court erred in striking Patrick=s jury demand, any error was
harmless because there remained no claims upon which Patrick was entitled
to a jury trial.  Under the Texas Family Code, a party is entitled to
a jury verdict on the issues of appointment of a sole managing conservator
and joint managing conservators, and the determination of which joint
managing conservator has the exclusive right to designate the primary
residence of the child.  Tex.
Fam. Code Ann. ' 105.002(c) (Vernon
2009).  In support of her position, Amarit relies on the fact that
she abandoned her request to be sole managing conservator at the
conclusion of the pre-trial conference, and that the court struck
Patrick=s amended counter-petition in
which he requested to be appointed primary joint managing
conservator.

Amarit=s contention is without
merit.  Although it is true that Amarit abandoned her request for
sole managing conservatorship, she agreed to do so only if the case was
tried to the bench rather than a jury.  Thus, if the court had not
erroneously struck Patrick=s jury demand, it appears that
Amarit would not have abandoned her request.  In addition, although
the court struck Patrick=s amended counter-petition, his
original counter-petitionCin which he sought primary
parent statusCremained a viable pleading at
the time of trial.

Amarit also contends that any
error in striking Patrick=s jury request was harmless
because Patrick waived his right to a jury by his failure to appear at
trial.  See Tex. R.
Civ. P.  220 (AFailure of a party to appear
for trial shall be deemed a waiver by him of the right to trial by
jury.@).  Her argument is
misplaced.  Although it is undisputed that Patrick and his counsel
did not appear at trial, the trial court struck Patrick=s jury request at the pre-trial
conferenceCsix days before
trial.

We conclude the trial court
abused its discretion by striking Patrick=s jury demand.  His third
issue is sustained.[4]

III.
CONCLUSION

We hold the trial court abused
its discretion in failing to set aside the default judgment and in
overruling Patrick=s motion for new trial because
he satisfied the requirements of Craddock.  We further hold
the trial court abused its discretion in striking Patrick=s amended counter-petition and
jury demand.  Accordingly, we reverse the judgment of the trial
court, order that the case be reinstated on the trial court=s jury docket, and remand for a
new trial.

/s/
William J. Boyce

Justice

Panel consists of Justices
Yates, Seymore, and Boyce.

[1]
In Lowe, this court articulated several reasons why Craddock
is not an appropriate test for suits involving the parent-child
relationship.  See Lowe, 971 S.W.2d at 725-27.  First,
Craddock was designed to be applied to traditional civil
litigationCpersonal injury, products liability, consumer, and
commercial litigationCin which only two competing interestsCthe plaintiff=s and the defendant=sCare involved.  See id. at
725.  By contrast, in suits involving the parent-child relationship,
there are three interests involvedCthe mother=s, the father=s and, of paramount importance, the
child=s.  See id. (ACraddock does not inquire into the child=s interests and leaves no maneuvering room for a
judge to consider the child=s interests.@).  Further, Craddock=s second prong does not easily lend itself to the
family law area.  Id. at 726.  Unlike other suits in
which clear defenses and claims exist, in family law there are only
factors to be considered by the court in determining best interest.
Id. Third, whereas the Craddock test assumes an
adversarial relationship between the parties, our legislature has made
great attempts to rid family law proceedings of an adversarial nature
(e.g., styling petitions in SAPCRs as AIn the Interest of _______, a child@).  Id.  Finally, one of the main
goals behind the Craddock test, as with other default judgment
rules, is the desire for finality in judgment.  Id.
However, in family law, the trial court hearing the issues in a SAPCR
retains continuing jurisdiction because the Family Code contemplates that
substantive changes will occur in the decree and to the family
unit.  See id. at 726-27.

[2]
Contrary to Amarit=s contention, Patrick=s original counter-petition was filed 18 days
before the second trial setting on November 13, 2006.  After a motion
for continuance was granted, the trial was re-set for December 11,
2006.

[3]
The record does not reflect the substance of the message.

[4]
Because of our disposition of Patrick=s first issue, we need not address issues four
through seven.