Opinion
NO. 03-16-00195-CV
08-24-2017
Abayomi Adekoya, Appellant v. Adedolapo Adekoya, Appellee
FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 425TH JUDICIAL DISTRICT
NO. 15-1919-F425 , HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING MEMORANDUM OPINION
Appellant, Abayomi Adekoya (Husband), appeals from a post-answer default judgment rendered by the district court of Williamson County in a divorce case. Appellee is Adedolapo Adekoya (Wife). We will affirm the judgment.
At mediation, the parties were able to agree on all issues except the custody and support for the children. In December 2015, counsel for the parties discussed possible dates for a trial of the undetermined issues. Husband claims in his motion for new trial that Wife's attorney "firmly confirmed" January 27, 2016, as the date for the hearing. Wife asserts in her brief that, to the contrary, the hearing date was scheduled by agreement for January 22, 2016.
On January 22, Wife and her counsel were present for the hearing. Neither Husband nor his attorney appeared. Wife's attorney represented to the district court that Husband's counsel had notice of the hearing. The court then proceeded to hear testimony, and thereafter announced its judgment. The court signed the judgment several weeks later. The judgment recited that Husband "has made a general appearance and was duly notified of trial but failed to appear and defaulted."
Husband filed a motion for new trial seeking to set aside the default judgment before it was signed. Husband asserted in his motion for new trial that Wife "never served any notice to [Husband] about any hearing."
We will treat the motion for new trial as if it had been filed after the default judgment was signed. See Tex. R. App. P. 27.2.
A docket-sheet entry shows that on February 23, 2016, the district court heard Husband's motion for new trial, among other matters. Counsel for both parties were present. Husband did not file a reporter's record of that hearing.
Husband claims that the default judgment should be set aside because he did not receive notice of the January 22 hearing. Failure to give notice to a party of a trial setting is ground for the reversal of a default judgment. Hanners v. State Bar of Tex., 860 S.W.2d 903, 907 (Tex. App.—Dallas 1993, writ dism'd). However, the trial court is presumed to have heard the case only after proper notice to the parties. Jones v. Texas Dep't of Pub. Safety, 803 S.W.2d 760, 761 (Tex. App.—Houston [14th Dist.] 1991, no writ). To rebut this presumption, the movant must affirmatively show a lack of notice. Trevino v. Gonzalez, 749 S.W.2d 221, 223 (Tex. App.—San Antonio 1988, writ denied). Here, Husband claims lack of notice based solely on statements in his motion for new trial. The motion for new trial was not verified, and no supporting affidavits or other competent evidence demonstrating lack of notice were produced. Accordingly, Husband failed to rebut the presumption of proper notice.
Husband also argues that he is entitled to a new trial pursuant to the rule announced in Craddock v. Sunshine Bus Lines, 133 S.W.2d 125, 126 (Tex. 1939). The Craddock requirements mandate that a new trial be granted when: (1) the failure to answer was not intentional or the result of conscious indifference, but rather was due to an accident or mistake; (2) a meritorious defense is set up in the motion for new trial; and (3) the motion for new trial is filed at a time when its granting will cause no delay or injury to the opposing party. The facts alleged in the motion for new trial must be supported by affidavits or other competent evidence. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966). As Husband's motion for new trial was not supported by affidavits or other competent evidence, it did not meet the Craddock requirements.
The Craddock rule is also applicable to post-answer default judgments. Ivy v. Carrell, 407 S.W.2d 212, 213 (Tex. 1966).
Finally, Husband complains of a temporary order signed by the district court during the pendency of this appeal. Two days after Husband perfected an appeal, Wife filed a motion for attorneys fees pending appeal. See Tex. Fam. Code § 109.001(a)(5). The district court conducted a hearing at which the parties and their counsel were present. The court's docket sheet shows that testimony was taken, but Husband did not file a reporter's record. After hearing the district court found that payment by Husband of reasonable interim attorneys fees of $4,000 to Wife's counsel was necessary to properly prepare for appeal and to protect the best interests of the children.
Husband argues that the temporary order awarding attorneys fees was "unjust, unfair and improper in view of [Husband's] financial circumstances." He claims further that the temporary order has nothing to do with the "welfare and well-being or best interest of the children." Rather, he asserts that the order was entered to "hamstrung" his appeal by aggravating his financial circumstances. Husband's argument is, we think, that the district court abused its discretion in signing the temporary order.
A temporary order rendered under Texas Family Code section 109.001 is not subject to an interlocutory appeal. See Tex. Fam. Code § 109.001(c). The provision in section 109.001(c) prohibiting an interlocutory appeal has been construed to mean that an appellate court lacks jurisdiction, in the pending appeal, over a complaint concerning a temporary order rendered during the pendency of the appeal. See Marcus v. Smith, 313 S.W.3d 408, 416 (Tex. App.—Houston [1st Dist.] 2009, no pet.); see also Brejon v. Johnson, 314 S.W.3d 26, 33 (Tex. App.—Houston [1st Dist.] 2009, no pet.) (citing Marcus, 313 S.W.3d at 416). Mandamus is the appropriate remedy to attack a temporary order under section 109.001. Marcus, 313 S.W.3d at 416.
Even if we were authorized to consider Husband's complaint, in the absence of a transcript of the testimony we would be unable to review and evaluate the district court's order.
The judgment is affirmed.
/s/_________
Bob E. Shannon, Justice Before Chief Justice Rose, Justices Goodwin and Shannon* Affirmed Filed: August 24, 2017 * Before Bob E. Shannon, Chief Justice (retired), Third Court of Appeals, sitting by assignment. See Tex. Gov't Code § 74.003(b).