in the Matter of the Marriage of Gabriela S. Jackson and Randy Jackson and in the Interest of C.N.J., a Child

• Court: Court of Appeals of Texas
• Decided: October 10, 2018
• Docket: 10-17-00403-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-17-00403-CV

IN THE MATTER OF THE MARRIAGE OF GABRIELA S. JACKSON AND RANDY JACKSON AND IN THE INTEREST OF C.N.J., A CHILD

From the 413th District Court Johnson County, Texas Trial Court No. DC-D201700773

MEMORANDUM OPINION

In two issues, appellant, Randy Jackson, challenges the trial court’s final divorce

decree. Specifically, appellant argues that: (1) the trial court erred in awarding to

appellee, Gabriela S. Jackson, indefinite child support, medical support as additional

child support, and post-majority college expenses because such relief exceeded the relief

pled for in appellee’s original petition for divorce, and because the evidence supporting

the awards is insufficient; and (2) the evidence supporting the division of property is not

supported by sufficient evidence. Because we conclude that appellant has not properly

preserved his complaints on appeal, we affirm. I. BACKGROUND

On June 23, 2017, appellee filed her original petition for divorce. Three days later,

appellant was served with a copy of appellee’s divorce petition. However, despite being

timely served, appellant did not file an answer or any affirmative pleadings in this matter.

On October 27, 2017, the trial court held a final hearing on appellee’s divorce

petition. Neither appellant nor his attorney appeared for the final hearing.1 After hearing

testimony from appellee, the trial court granted a default judgment in favor of appellee.

Thereafter, appellant filed a motion for new trial, arguing that, among other

things, that the default judgment should be set aside because his failure to answer was

not intentional or the result of conscious indifference, but was due to his mistaken belief

that he did not need to file an answer given the parties purportedly were in settlement

negotiations. Appellant also lodged several complaints about the trial court’s division of

the community estate. The trial court denied appellant’s motion for new trial, and this

appeal followed.

II. ANALYSIS

It is well established Texas law that in order to set aside a default judgment, the

defendant must show: (1) the failure of the defendant to answer was not intentional or

the result of conscious indifference on his part, but was due to accident or mistake; (2) the

1Indeed, the final decree of divorce specifically stated: “Respondent, Randy Jackson, although duly and properly cited, did not appear and wholly made default.”

In the Matter of the Marriage of Jackson & In the Interest of C.N.J., a Child Page 2 motion for new trial sets up a meritorious defense; and (3) granting a new trial will

occasion no undue delay or otherwise injure the party taking the default judgment.

Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939). The

defaulting party 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. See Freeman v.

Pevehouse, 79 S.W.3d 637, 641 (Tex. App.—Waco 2002, no pet.).

On appeal, appellant complains that the trial court abused its discretion by

dividing the community estate unequally and by awarding appellee indefinite child

support, medical support as additional child support, and post-majority college

expenses. Nowhere in his brief does he argue that the trial court abused its discretion

because he established the Craddock elements. See 133 S.W.2d at 126; see also Freeman, 79

S.W.3d at 641. Because appellant does not complain on appeal that the trial court erred

by denying his motion for new trial given that he established the Craddock elements, we

conclude that appellant has failed to preserve error. 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. See TEX. R. APP. P. 33.1; see also Ellis v. Ellis, 2008

Tex. App. LEXIS 906, at **2-3 (Tex. App.—Corpus Christi Feb. 7, 2008, pet. denied) (mem.

op.); Stewart v. C.L. Trammell Props., Inc., No. 05-04-01027-CV, 2005 Tex. App. LEXIS 7637,

at *8 (Tex. App.—Dallas Sept. 15, 2005, no pet.) (supp. mem. op. on re’hg) (“{I]t is not

enough for [appellant] to argue all three Craddock elements in her motion for new trial.

In the Matter of the Marriage of Jackson & In the Interest of C.N.J., a Child Page 3 She must also raise and address them on appeal.”). Therefore, based on the foregoing,

we overrule all of appellant’s issues on appeal.

III. CONCLUSION

We affirm the judgment of the trial court.

AL SCOGGINS Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins (Chief Justice Gray dissenting with a note)* Affirmed Opinion delivered and filed October 10, 2018 [CV06]

*(Chief Justice Gray dissents. A separate opinion will not issue. He notes, however, that a Craddock issue on appeal is unnecessary to preserve the issues raised by the appellant.)

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