Irma J. Leal v. Daniel Lopez

Opinion filed May 8, 2025

In The

Eleventh Court of Appeals
__________

No. 11-24-00015-CV
__________

IRMA J. LEAL, Appellant
V.
DANIEL LOPEZ, Appellee

On Appeal from the 446th District Court
Ector County, Texas
Trial Court Cause No. E-21-09-1286-FM

MEMORANDUM OPINION
This appeal concerns the trial court’s denial of a timely filed motion for new
trial that challenged the trial court’s entry of a default judgment. Appellee, Daniel
Lopez, filed the underlying suit for divorce against Appellant, Irma J. Leal. Leal
failed to appear at a rescheduled final hearing setting, and the trial court signed a
default judgment in favor of Lopez. In its judgment, the trial court granted Lopez’s
request for a divorce, appointed Leal and Lopez as joint managing conservators of
their child, ordered that the child’s primary residence be restricted “within Ector
County, Texas and Hidalgo County, Texas,” ordered the parties to comply with the
terms of the standard possession order in the absence of a mutual agreement
regarding the possession of their child, set Lopez’s support obligations, and divided
the parties’ marital estate.
In two issues, Leal asserts that the trial court abused its discretion when it
denied her motion for a new trial because (1) neither she nor her trial counsel
received “proper notice” of either the final hearing setting or resetting, and (2) she
presented sufficient evidence to satisfy the three Craddock prongs. See Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. 1939). We reverse and remand.
I. Factual Background
Leal and Lopez were married on or about August 22, 2020; one child was born
during their marriage. On September 14, 2021, Lopez filed his original petition for
divorce. On December 2, 2021, Lopez filed an amended petition, and Leal was
thereafter served with the amended petition, a temporary restraining order (TRO),
and a notice of hearing to show cause on December 17. Leal’s first trial attorney,
Ismael Rivera, filed a motion to transfer venue and a plea to the jurisdiction on
January 7, 2022, which the trial court set for a hearing for February 10.
On March 15, 2023, the trial court signed a TRO and set a hearing on the TRO
for March 30.1 At some point, the trial court reset the TRO hearing for April 13. On
April 11, Leal’s second trial attorney, Lane Haygood, filed an amended motion to
continue the TRO hearing, which the trial court granted on April 12; the trial court
reset the TRO hearing for April 20.2 At the April 20 hearing, Leal and Lopez
negotiated a Rule 11 agreement, which the trial court accepted.
On May 17, 2023, Leal’s third trial attorney, Teresa Sanchez, filed a motion
to withdraw in which she requested that the trial court allow her and Haygood

1
The record does not contain an application by either party for a TRO.
2
The record does not contain Rivera’s motion to withdraw.
2
to withdraw as Leal’s trial counsel. The trial court granted Sanchez’s motion on
June 13. Two days later, the trial court signed a TRO and set the TRO for a hearing
on June 29.3 On June 23, the trial court signed an order setting a pretrial hearing for
July 28, 2023, at 10:00 a.m. The trial court’s order informed the parties that
“[a]ttendance at Pre-Trial is mandatory.” On July 7, Leal, through her fourth trial
attorney, Bruce Foster, filed a “Final Rule 11 Agreement.” Following this, on
July 12, Leal, acting pro se, filed a document titled “Self-Represented Litigant
Request and Consent for Electronic Court Notices” with the trial court. 4
The trial court held a pretrial hearing on July 28 and, among other things,
addressed the parties’ July 7 Rule 11 agreement; however, Leal did not appear at this
hearing.5 At the pretrial hearing, Lopez’s trial counsel also requested that the trial
court schedule a final “prove-up” hearing. Upon the conclusion of the pretrial
hearing, the trial court orally announced that a “prove-up” hearing would be set for
August 1; later that day, the trial court signed a written order to that effect, stating
that the case was set for a final hearing. 6 See TEX. R. CIV. P. 21(f)(10).

3
The certificate of service attached to the trial court’s order indicates that Haygood and Sanchez,
and another individual, JoAnna Keese, were served with the June 15 TRO, which included the June 29
hearing date.
4
The record does not contain a motion to withdraw that was purportedly filed by Foster prior to
Leal’s filing of her “Self-Represented Litigant Request.” However, we note that the trial court discharged
Foster as Leal’s trial counsel on August 14 when it granted the motion to substitute counsel filed by Luis
De Los Santos, Jr.
5
At a subsequent “prove-up” hearing on August 1, the trial court made the following statements
concerning what occurred at the July 28 hearing: “[Leal has] missed multiple hearings, and [the August 1
hearing] was set from the pretrial docket on Friday [July 28]. [Leal] was present at the pretrial docket, but
she refused to follow the Zoom rules, and was finally and subsequently removed from the hearing and not
allowed to participate.” Despite the trial court’s comments, we note that the appellate record does not
indicate whether Leal participated in the July 28 hearing via Zoom, nor does the reporter’s record from the
July 28 hearing show that Leal refused to comply with the trial court’s requirements for a party’s remote
appearance at a court proceeding via Zoom.
6
The trial court’s July 28 order that set a final “prove-up” hearing for August 1 does not include a
certificate of service, as it should have.
3
Leal appeared pro se at the August 1 “prove-up” hearing, which the trial court
treated as the parties’ final hearing; the trial court also arranged for a Spanish-
language interpreter to be present to assist Leal during the hearing. At the beginning
of this hearing, the trial court outlined the past events that were pertinent to the case.
In its narration, the trial court explained that Leal “had stated to the Court that she
just received the divorce decree” and that “[s]he needed a moment to read it.” The
trial court then stated that Leal had “been sitting in the first row of the gallery in the
Court, and watched the two cases go before her . . . and never read her documents.”
According to the trial court, it believed that at some point after having observed the
disposition of other cases before the trial court that day, Leal “realized that there was
a defense, and said that instead she had been coerced into the [Rule 11] agreement
by [Lopez] and by his attorney.” Based on Leal’s statements and representations to
the trial court at this hearing, the trial court found that “[Leal] has backed into a
defense today” and stated that it “[would] not accept any agreement . . . [y]ou will
go to trial . . . [and it would] get [Leal] a trial setting.”7
After it decided to reset the final hearing, the trial court heard testimony from
Lopez’s attorney concerning attorney’s fees that Lopez incurred for the July 28
pretrial hearing and the August 1 hearing. The trial court asked Leal if she had “any
questions for this witness” as it related to the attorney’s fees. In response, Leal stated
“I don’t agree . . . I don’t have an attorney, because I don’t have money.” The trial
court then awarded Lopez attorney’s fees in the sum of $825. In addition, the trial
court orally announced that the final hearing would be reset for September 6 at
10:00 a.m. However, the record does not contain a written order or other written

7
We note that any statements or representations purportedly made by Leal—as described by the
trial court in its narration—are not contained in the reporter’s record.

4
confirmation signed by the trial court indicating that the final hearing was reset for
September 6.
On August 3, Luis De Los Santos, Jr., Leal’s fifth trial attorney, filed a motion
to substitute counsel,8 which the trial court granted on August 14. On September 6,
the trial court held a final hearing; neither Leal nor De Los Santos appeared. Lopez
presented his evidence, and at the conclusion of the hearing, the trial court orally
rendered a default judgment, stating that it was granting “all of [Lopez’s] requested
relief.”
On September 18, Leal filed a motion for new trial. In her motion, Leal argued
that (1) “[a] new trial should be granted to [Leal] because . . . [t]he time frame
allotted between August 14th through September 6th is not sufficient for counsel to
review the file and meet with the client to adequately prepare for any hearings
scheduled”; and (2) “[a] new trial should be granted to [Leal] because [the trial court]
did not give noti[ce] [to] new counsel of any hearings scheduled.” The trial court
signed its final decree of divorce on October 25.
After a continuance was granted, the trial court set the hearing on Leal’s
motion for new trial for December 12. Leal and De Los Santos appeared at the
motion-for-new-trial hearing. During the hearing, De Los Santos informed the trial
court that he had been retained as Leal’s trial counsel in early August, and that the
trial court approved his substitution as counsel for Leal on August 14.9 De Los

8
The motion to substitute counsel filed by De Los Santos stated that Foster was the attorney for
Leal at the time the motion was filed. The motion also requested that the trial court discharge Foster as
Leal’s attorney.
9
While De Los Santos was not sworn-in by the trial court as a witness either before or while he
made his statements and proffer to it, we note that unsworn statements made by an attorney may be
considered as evidence and be binding on a party. See Estate of Brown, 704 S.W.3d 428, 435 (Tex. 2024);
Boucher v. Warrior Crane Serv., LLC, 698 S.W.3d 344, 352 n.3 (Tex. App.—Eastland 2024, pet. filed)
(citing Banta Oilfield Servs., Inc. v. Mewbourne Oil Co., 568 S.W.3d 692, 704 (Tex. App.—Texarkana
2018, pet. denied)).

5
Santos further stated he did not attend the September 6 final hearing setting because
he “was unaware of the court setting . . . [and he] didn’t receive notice.” In
explaining his absence, De Los Santos said that Leal had informed him of the
September 6 final hearing setting; however, based on his alleged communication
with the trial court, he believed that the September 6 setting would be reset. De Los
Santos stated that he “suspected” that the trial court had reset the final hearing to a
future date because the trial court did not send any written order or other writing to
him or Leal confirming the September 6 setting; as such, this misunderstanding
resulted in his failure to appear. In addition, De Los Santos stated that there was a
“big [communication] confusion” between himself and Leal regarding the
September 6 setting because Leal had appeared at the August 1 hearing pro se. After
De Los Santos concluded his proffer to the trial court, it stated that the failure to
appear at the September 6 final hearing setting “sound[ed] like it was an accident,
that it was a mistake, [and] that [De Los Santos] didn’t just willfully and intentionally
skip out on [the] court date.”
Leal testified at the hearing. She stated that Lopez was a danger to their child
and that he had not seen their child since May 2023. She testified that Lopez does
not have a relationship with their child and does not interact or communicate with
their child telephonically or via in-person visits. Leal testified that Lopez had been
to her home and threatened her, and as a result she filed a complaint with law
enforcement. Leal stated that (1) Lopez had pending charges against him for family
violence, (2) she had received a letter from CPS regarding Lopez’s family violence
charges, and (3) Lopez had physically abused her in the past. Leal also stated that
their child and Lopez’s mother had witnessed Lopez’s violent and aggressive
behavior toward Leal, and that emergency services were dispatched to her home
after an incident where Lopez had struck her.

6
When asked about her knowledge of Lopez’s pending family violence
charges, Leal confirmed that she had “checked with the district attorney” and that
two charges of domestic violence were pending against Lopez. When questioned
during cross-examination concerning her meeting with the district attorney, Leal was
unable to recall the district attorney’s name or the date the meeting took place.
Regarding the August 1 hearing, Leal initially testified that she appeared at
the hearing and the trial court informed her that there would be a setting on
September 6 because Leal did not “follow through” with the parties’ Rule 11
agreement. Later, when Leal was questioned by Lopez’s trial counsel about the final
hearing reset date, Leal stated that she believed the trial court had reset the
final hearing for August 21. Leal testified that she confirmed this setting date
(August 21) with Lopez’s attorney on August 1 outside the courtroom after the
hearing concluded that day, and she then noted the August 21 date in her cell phone
calendar.
According to Leal, on or around August 3, she contacted De Los Santos
regarding possible legal representation, and she retained De Los Santos that same
day. Leal confirmed that she “never intended to skip out on [the September 6]
proceeding,” and that it was her understanding that “[they] were going to file some
paperwork[,]” the hearing “was going to be changed, and [she] was going to be
notified of the next court [date].”
II. Standard of Review and Applicable Law
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. In re R.R., 209 S.W.3d 112, 114 (Tex. 2006) (citing Dir., State Emps.
Workers’ Comp. Div. v. Evans, 889 S.W.2d 266, 268 (Tex. 1994)); Strackbein v.
Prewitt, 671 S.W.2d 37, 38 (Tex. 1984). In determining whether a trial court abused
its discretion, we must determine whether the trial court acted without reference to
any guiding rules or principles; in other words, we must decide whether the trial
7
court acted arbitrarily or unreasonably. Cire v. Cummings, 134 S.W.3d 835, 838–
39 (Tex. 2004).
It is axiomatic that a default judgment should be set aside, and a new trial
granted, if: (1) the defendant’s failure to answer was not intentional or the result of
conscious indifference but, rather, was due to an accident or mistake; (2) the
defendant sets up a meritorious defense to the plaintiff’s asserted claims; and (3) the
motion is filed at such time that granting a new trial would not result in delay or
otherwise injure the plaintiff. See Craddock, 133 S.W.2d at 126. When a defaulting
party moves for a new trial and meets each Craddock prong, a trial court abuses its
discretion if it fails to grant a new trial. Dolgencorp of Tex., Inc. v. Lerma, 288
S.W.3d 922, 926 (Tex. 2009) (citing Old Republic Ins. Co. v. Scott, 873 S.W.2d 381,
382 (Tex. 1994)).
When, as in this case, a trial court grants a default judgment because the
defendant fails to appear for trial or a final hearing, the same Craddock test applies.
See LeBlanc v. LeBlanc, 778 S.W.2d 865 (Tex. 1989) (The Craddock factors apply
to all default judgments, those “entered on [the] failure of a defendant to file an
answer and those entered on failure to appear for trial.” (citing Ivy v. Carrell, 407
S.W.2d 212, 213 (Tex. 1966))). Further, in the absence of findings of fact and
conclusions of law, the trial court’s denial of a motion to set aside a default judgment
and for new trial must be upheld on any legal theory supported by the evidence. See
Strackbein, 671 S.W.2d at 38.
III. Analysis
A. Appendices and Documents Attached to Appellant’s Brief
At the outset, we note that Leal refers to and relies on multiple documents—
some of which are photocopies of other documents—that are included in an
appendix that is attached to her appellate brief; apart from the divorce decree, these
documents do not appear in the appellate record. See TEX. R. APP. P. 34.1 (“The
8
appellate record consists of the clerk’s record and, if necessary to the appeal,
the reporter’s record.”). An appendix is not a substitute for the clerk’s record. See
Bell v. State for S.E.G., 659 S.W.3d 21, 24 (Tex. App.—El Paso 2021, pet. denied).
As such, we may only consider an appeal that is based upon the evidence and
documents contained within the appellate record, not upon documents attached as
an appendix to an appellate brief. See Watson v. Schrader, No. 11-18-00064-CV,
2020 WL 976939, at *1 (Tex. App.—Eastland Feb. 28, 2020, pet. denied) (mem.
op.); see also TEX. R. APP. P. 38.1. Therefore, because the appendix and its
inclusions attached to Leal’s appellate brief are not part of the appellate record, we
cannot and do not consider them. See Children of the Kingdom v. Central Appraisal
Dist. of Taylor Cnty., 674 S.W.3d 407, 415 n.3 (Tex. App.—Eastland 2023, pet.
denied); Creekside Rural Invs., Inc. v. Hicks, 644 S.W.3d 896, 906 n.5 (Tex. App.—
Eastland 2022, no pet.); Bell, 659 S.W.3d at 24; WorldPeace v. Comm’n for Lawyer
Discipline, 183 S.W.3d 451, 465 n.23 (Tex. App.—Houston [14th Dist.] 2005, pet.
denied).
B. Notice of the Final Hearing – Preservation of Complaint
In her first issue, Leal argues that because she did not receive “proper notice”
of either the August 1 final hearing setting or the September 6 reset date, to be
entitled to a new trial, she is only required to establish the first Craddock prong. See
Mathis v. Lockwood, 166 S.W.3d 743, 744 (Tex. 2005). Lopez argues that Leal did
not preserve this complaint for our review.
A party may waive a complaint regarding inadequate notice of a trial setting
if the party does not properly preserve the complaint. Abend v. Fed. Nat’l Mortg.
Ass’n, 466 S.W.3d 884, 886 (Tex. App.—Houston [14th Dist.] 2015, no pet.); see
also Dreyer v. Wislicenus, No. 11-18-00234-CV, 2020 WL 5490727, at *6 (Tex.
App.—Eastland Sept. 11, 2020, no pet.) (mem. op.). To preserve a complaint for
appellate review, a party must (1) make a timely request, objection, or motion in the
9
trial court that states the specific grounds for the ruling sought, unless the specific
grounds are apparent from the context, and (2) obtain a ruling from the trial court
or object to the trial court’s refusal to rule. TEX. R. APP. P. 33.1(a); Ad Villarai,
LLC v. Chan Il Pak, 519 S.W.3d 132, 137 (Tex. 2017); Matter of Guardianship of
E.M.D., No. 11-20-00042-CV, 2020 WL 6193990, at *10 (Tex. App.—Eastland
Oct. 22, 2020, pet. denied) (mem. op.).
Although Leal complains about the lack of “proper notice” for the August 1
hearing setting, it is the lack of “proper notice” for the final hearing setting that the
trial court rescheduled for September 6 that is of significance here. In her motion
for new trial, which was timely filed, and at the hearing on the motion, Leal and De
Los Santos clearly expressed that neither of them received proper notice of the
September 6 final hearing reset date. Because Leal timely objected to the trial
court’s default judgment on this basis, and because she requested and obtained a
ruling on her motion—the grounds and context of which are apparent—we conclude
that she preserved her complaint for our review on this point. Therefore, we will
address the merits of Leal’s complaints.
C. The Craddock Factors
When the first prong of the Craddock test is established by proof that the
defaulted party was not provided notice of a trial or final hearing setting, it is a
violation of due process if the trial court further requires that the second and third
Craddock prongs be established before it grants a new trial. Mathis, 166 S.W.3d at
744; see Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex. 1988) (citing Peralta v. Heights
Med. Ctr., Inc., 485 U.S. 80 (1988)). Here, Leal asserts that she sufficiently
established each Craddock prong and, because all elements were met, the trial court
abused its discretion when it denied her motion for new trial. In this instance,
because she also claims that neither she nor De Los Santos received proper notice of
the September 6 final hearing setting, her satisfaction of the first Craddock prong,
10
without more, would necessarily require that we vacate the trial court’s judgment
and remand this cause to the trial court for a new trial. Therefore, in light of Leal’s
assertion of the lack of proper notice, the initial question that we must determine is
whether she has satisfied the first Craddock prong.
1. Intentional or Consciously Indifferent Conduct
Leal may satisfy the first Craddock prong if the factual assertions in her
verified motion for new trial and the evidence she presented, when taken as true,
would negate any intentional or consciously indifferent conduct by her or De Los
Santos. Sutherland v. Spencer, 376 S.W.3d 752, 755 (Tex. 2012); Dolgencorp, 288
S.W.3d at 925; R.R., 209 S.W.3d at 115; Strackbein, 671 S.W.2d at 39; Ivy, 407
S.W.2d at 214; Craddock, 133 S.W.2d at 126. Whether a defendant’s failure to
appear was intentional or due to conscious indifference is determined based on the
knowledge and acts of the defendant. R.R., 209 S.W.3d at 115. “Consciously
indifferent conduct occurs when ‘the defendant knew it was sued but did not care.’”
Sutherland, 376 S.W.3d at 755 (quoting Fid. & Guar. Ins. Co. v. Drewery Constr.
Co., 186 S.W.3d 571, 576 (Tex. 2006) (per curiam)); R.R., 209 S.W.3d at 115.
The historical trend in default judgment cases has been in favor of the liberal
granting of new trials and allowing litigants to resolve their disputes on the merits.
In re A.J.M., No. 11-20-00222-CV, 2021 WL 3923300, at *4 (Tex. App.—Eastland
Sept. 2, 2021, no pet.) (mem. op.); see, e.g., Tex. Sting, Ltd. v. R.B. Foods, Inc., 82
S.W.3d 644, 650 (Tex. App.—San Antonio 2002, pet. denied). To set aside a default
judgment, “some excuse, although not necessarily a good one” is sufficient to show
that the defendant did not act intentionally or with conscious indifference. R.R., 209
S.W.3d at 115 (quoting Drewery, 186 S.W.3d at 576); Craddock, 133 S.W.2d at 125.
Thus, almost any offered excuse will carry the day. Moreover, if the record shows
that the movant’s factual assertions are uncontroverted, the trial court must accept
the uncontroverted assertions as true. See Drewery, 186 S.W.3d at 576; Strackbein,
11
671 S.W.2d at 38. Therefore, the reason(s) or excuse(s) offered by Leal or De Los
Santos for failing to appear at the September 6 final hearing, if accepted as true,
would be enough to meet Leal’s burden as to the first Craddock prong. Walker v.
Gutierrez, 111 S.W.3d 56, 64 (Tex. 2003).
Here, De Los Santos explained to the trial court that he failed to appear for
the September 6 final hearing because: (1) he was unaware of and did not receive
notice of this setting; (2) he believed the final hearing setting would be reset to a
future date; (3) he did not receive any written order or other written confirmation
from the trial court that the final hearing was scheduled for and would proceed on
September 6; and (4) there was a significant lapse in communication regarding
whether the final hearing would proceed on September 6. Moreover, Leal
testified about two different dates that she believed the final hearing would be held—
August 21 and September 6—and that she never intended to avoid appearing at the
final hearing. De Los Santos’s explanations and Leal’s testimony on this point are
uncontroverted. And, after De Los Santos’s proffer, the trial court stated that De Los
Santos’s failure to appear at the September 6 final hearing “sound[ed] like it was an
accident, that it was a mistake, [and] that [he] didn’t just willfully and intentionally
skip out on [the] court date.”
A fundamental requirement of due process is notice. Mullane v. Cent.
Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950); Barrientos v. Barrientos, 675
S.W.3d 399, 405 (Tex. App.—Eastland 2023, pet. denied). The United States
Constitution’s Due Process Clause and the Texas constitution’s Due Course of Law
Clause require that adequate procedural due process be afforded to all parties to a
judgment, which includes notice of trial court proceedings. Mitchell v. MAP Res.,
Inc., 649 S.W.3d 180, 188–89 (Tex. 2022); Barrientos, 675 S.W.3d at 405. Such
notice must be “reasonably calculated, under all the circumstances, to apprise [all]
interested parties of the pendency of the action and afford them an opportunity to
12
present their objections.” Mullane, 339 U.S. at 314. That opportunity “must be
granted at a meaningful time and in a meaningful manner.” Armstrong v. Manzo,
380 U.S. 545, 552 (1965). When parties are not afforded a meaningful opportunity
to be heard, “the remedy for a denial of due process is due process.” Univ of Tex.
Med. Sch. at Hous. v. Than, 901 S.W.2d 926, 933 (Tex. 1995); Barrientos, 675
S.W.3d at 405.
We conclude that the uncontroverted explanations proffered by De Los
Santos—which the trial court accepted as true—and the reasons or excuses offered
by Leal for failing to appear at the September 6 final hearing, i.e., the lack of proper
notice, are sufficient to carry Leal’s burden as to the first Craddock prong. See R.R.,
209 S.W.3d at 115 (citing Craddock, 133 S.W.2d at 125); Drewery, 186 S.W.3d at
576. Therefore, because Leal satisfied the first Craddock prong, due process
requires that we set aside the trial court’s default judgment and remand this cause to
it for a new trial. Mathis, 166 S.W.3d at 744; see Lopez, 757 S.W.2d at 722 (citing
Peralta, 485 U.S. 80); see also A.J.M., 2021 WL 3923300, at *5.
Accordingly, we sustain Leal’s first issue. Because of our holding, typically
it would not be necessary for us to consider the application of the other two Craddock
factors. See TEX. R. APP. P. 47.1. However, in this instance, we will because
(1) even if Leal’s due process argument either fails or was not preserved for our
review as Lopez suggests, Leal, as we have held, satisfied the first Craddock prong,
and (2) based on the record before us and the application of the other two factors,
which we discuss below, we conclude that Leal satisfied the second and third
Craddock prongs and would still be entitled to a new trial.
2. Meritorious Defense
Next, to obtain a new trial, and in the absence of a due process/lack of “proper
notice” complaint, Leal would be required to set up a meritorious defense. A
meritorious defense may be set up by facts alleged in her motion, any supporting
13
affidavits, and other presented evidence, regardless of whether the proffered facts
are controverted. See Evans, 889 S.W.2d at 270; Estate of Pollack v. McMurrey,
858 S.W.2d 388, 392 (Tex. 1993); see also Konkel v. Otwell, 65 S.W.3d 183, 187
(Tex. App.—Eastland 2001, no pet.).
Leal argues that she set up a meritorious defense to the issues addressed by
the trial court in its default judgment concerning (1) the parties’ conservatorship and
possession of their child, and (2) Lopez’s child support obligations. To the contrary,
Lopez argues that Leal did not “identify” a defense to the child support issue at the
motion-for-new-trial hearing, and that her testimony is insufficient to show that a
legitimate defense exists to his family violence charges.
The second Craddock prong is difficult to apply in family law cases that
concern conservatorship, child custody, and child support obligations because the
trial court’s primary consideration in such circumstances is the best interest of the
child. In re A.P.P., 74 S.W.3d 570, 575 (Tex. App.—Corpus Christi–Edinburg
2002, no pet.) (citing Lowe v. Lowe, 971 S.W.2d 720, 724–727 (Tex. App.—
Houston [1st Dist.] 1998, pet. denied)). When the parties’ dispute focuses on the
custody and possession of a child, trial courts consider the Holley factors in making
its best interest determination. Id. These factors include, but are not limited to:
(A) the desires of the child; (B) the emotional and physical needs
of the child now and in the future; (C) the emotional and physical
danger to the child now and in the future; (D) the parental
abilities of the individuals seeking custody; (E) the programs
available to assist these individuals to promote the best interest
of the child; (F) the plans for the child by these individuals or the
agency seeking custody; (G) the stability of the home or
proposed placement; (H) the acts or omissions of the parent
which may indicate that the existing parent-child relationship is
not a proper one; and (I) any excuse for the acts or omissions of
the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
14
The record shows that Leal testified at the motion-for-new-trial hearing about
Lopez’s violent tendencies and the incidents of domestic violence he allegedly
committed. In describing one such incident, Leal stated that their child and Lopez’s
mother witnessed Lopez physically abuse Leal, which resulted in emergency
services being dispatched to her home. Leal further testified that Lopez had
threatened and abused her in the past, and that CPS contacted her about Lopez’s
domestic violence charges. According to Leal, Lopez had not developed a
relationship with their child, he had not been involved in their child’s life since
May 2023, that she has primary custody of their child, and that Lopez had made no
effort to interact with their child.
Leal’s testimony presents facts that apply directly to several of the Holley
best-interest factors, including, but not limited to (1) the emotional and physical
needs of the child now and in the future, (2) the emotional and physical danger to
the child now and in the future, (3) the acts or omissions of the parent, (4) the stability
of the home, and (5) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one. See Holley, 544 S.W.2d at
372. As such, Leal presented facts that, if shown at trial, could result in a different
outcome regarding the custody and possession of the child in the underlying divorce
suit. See McMurrey, 858 S.W.2d at 392; A.P.P., 74 S.W.3d at 575; Lowe, 971
S.W.2d at 724. Accordingly, we conclude that Leal has satisfied the second
Craddock prong. See Ivy, 407 S.W.2d at 215.
3. Delay or Undue Injury
Finally, to satisfy the remaining Craddock prong, Leal must show that the
granting of a new trial will not cause delay or injury to Lopez. See Craddock, 133
S.W.2d at 126. Factors that must be considered in determining whether delay or
injury would result if a new trial was granted are if the movant offers (1) to proceed

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to trial immediately, and (2) to reimburse the prevailing party for the expenses that
party incurred in securing the default judgment. See Evans, 889 S.W.2d at 270.
In his closing argument during the motion-for-new-trial hearing, De Los
Santos offered to personally reimburse Lopez for the attorney’s fees that Lopez
incurred as a result of his attorney preparing for and participating in the September 6
and December 12 hearings. De Los Santos further stated that he could be ready for
trial immediately and that he would only need “one day” to present Leal’s case.
Once a movant alleges that the granting of a new trial will not cause undue delay or
otherwise injure the plaintiff, the burden shifts to the plaintiff to establish the
opposite. Evans, 889 S.W.2d at 270. Here, neither Lopez nor his attorney stated or
testified that the granting of a new trial would cause any undue delay or injury to
Lopez or would negatively affect their ability to present the merits of their case;
Lopez only requested court-ordered mediation. Because Lopez did not carry his
burden to rebut the offers made by Leal, we conclude that Leal also satisfied the
third Craddock prong. See id.
Accordingly, to the extent it is necessary, we sustain Appellant’s second issue.
IV. This Court’s Ruling
Based on the record before us, we conclude that the trial court abused its
discretion when it denied Leal’s motion for new trial. Accordingly, we reverse the
trial court’s judgment and remand this cause to the trial court for a new trial.

W. STACY TROTTER
JUSTICE
May 8, 2025
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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