Christopher Ray Carpenter v. Catherine Carpenter

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-24-00817-CV

Christopher Ray CARPENTER,
Appellant

v.

Catherine CARPENTER,
Appellee

From the 57th Judicial District Court, Bexar County, Texas
Trial Court No. 2024-CI-11332
Honorable Nicole Garza, Judge Presiding

Opinion by: Lori Massey Brissette, Justice

Sitting: Lori Massey Brissette, Justice
Adrian Spears II, Justice
Velia J. Meza, Justice

Delivered and Filed: April 8, 2026

REVERSED AND REMANDED

This case involves a default judgment taken in a divorce proceeding involving both

property issues and the conservatorship, possession of, and access to a child of the marriage. We

reverse the default judgment and remand the matter for further proceedings in accordance with our

opinion.
04-24-00817-CV

BACKGROUND

After filing an Original Petition for Divorce in May of 2024, Catherine Carpenter amended

her pleading twice, serving her Second Amended Original Petition on her husband, Christopher

Ray Carpenter, on July 2, 2024. On August 21, 2024, Catherine took a no answer default judgment

against Christopher.

In the default judgment, the trial court appointed both parents as joint managing

conservators of the couple’s twelve-year-old child [C.C.] 1, but gave Catherine exclusive rights to

designate the primary residence of the child and to make decisions regarding invasive medical

procedures, psychiatric treatment, and education. The trial court limited Christopher’s access to

supervised visitation, awarded Catherine $1,850.00 per month in child support and $500 per month

in spousal support, divested Christopher of any interest in the marital home, issued a permanent

injunction against Christopher, and awarded Catherine $5,000 in attorney’s fees.

Christopher filed an Answer to the proceedings on August 29, 2024. On September 20,

2024, Christopher filed a Motion to Modify or Reform the Judgment or, Alternatively, Motion for

New Trial. Attached to his motion were the affidavits of Christopher and his attorney, Raymond

Vale, which taken together aver that Christopher emailed the petition to his attorney and was not

aware that his attorney had not received it until he received notice of the judgment.

Christopher’s motion was set for hearing on October 25, 2024, but the setting was dropped

because Catherine’s counsel had a vacation notice on file. As a result, the motion was overruled

by operation of law. Christopher then filed a Motion to Reconsider and set it for hearing on

1
The couple also have an older child who is not the subject of the trial court’s order.

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November 20, 2024. Catherine objected to the hearing. The trial court took the matter by

submission and denied the motion. Christopher now appeals.

In his appeal, Christopher presents three issues. First, he contends the trial court abused its

discretion in denying his Motion to Modify or Reform the Judgment or, Alternatively, Motion for

New Trial. Second, he contends the evidence presented by Catherine is insufficient to support the

entry of a default judgment. Finally, he asserts the trial court abused its discretion in divesting him

of his equitable interest in the marital home in lieu of retroactive child support. Because we find

the trial court abused its discretion in refusing to grant Christopher’s Motion for New Trial, we

reverse and remand for further proceedings.

THE TRIAL COURT’S DECISION IS REVIEWABLE

Catherine contends that we should not consider Christopher’s assertion that the trial court

abused its discretion in denying his post-judgment motion because he failed to set it for hearing,

citing Fluty v. Simmons Co., 835 S.W.2d 664 (Tex. App.—Dallas 1992, no pet.). In Fluty, the court

held the movant waived error by not presenting the motion for hearing and allowing it to be

overruled by operation of law. Id. at 668. The court made it clear its decision was based on the

principle that a motion to set aside a default judgment is one that requires that evidence be heard.

Id. at 667; see also Shamrock Roofing Supply, Inc. v. Mercantile Nat’l Bank, 703 S.W.2d 356, 357

(Tex. App.—Dallas 1985, no writ).

But, the Austin Court of Appeals refused to follow the reasoning of our Dallas sister court,

precisely because an evidentiary hearing is not required to determine a motion to set aside a default

judgment. Limestone Const., Inc. v. Summit Commercial Indus. Properties, Inc., 143 S.W.3d 538,

546 (Tex. App.—Austin 2004, no pet.) citing Smith v. Holmes, 53 S.W.3d 815, 817–18 (Tex.

App.—Austin 2001, pet. denied). It held it was, in fact, the non-movant’s burden to request an

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04-24-00817-CV

evidentiary hearing and that, when the non-movant does not controvert the evidence presented in

the motion, the trial court should rule based on the factual assertions made in the motion and

supporting affidavits. Id. at 546; see also Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984)

(“Where factual allegations in a movant’s affidavits are not controverted, a conscious indifference

question must be determined in the same manner as a claim of meritorious defense. It is sufficient

that the movant’s motion and affidavits set forth facts which, if true, would negate intentional or

consciously indifferent conduct.”).

While we can understand the Dallas court’s hesitation to hold a trial court abused its

discretion when it, in fact, was not given the opportunity to use it, we need not decide the issue in

this case. Here, Christopher did seek to set a hearing on his motion, both before the motion was

overruled by operation of law and after. In fact, after his first setting was dropped due to opposing

counsel’s vacation letter and while the trial court still had plenary power, Christopher asked the

trial court to reconsider his original motion for new trial. The trial court decided to take the motion

by submission and subsequently denied it. Thus, the trial court was given the opportunity to rule

on the merits and exercised its discretion in doing so. For that reason, we hold no waiver resulted

and we must review the trial court’s decision. See Continental Carbon Co. v. Sea–Land Serv.,

Inc., 27 S.W.3d 184, 188 (Tex. App.—Dallas 2000, pet. denied) (finding no waiver where plaintiff

twice obtained hearing dates that were postponed at request of defendant before new trial motion

was overruled by operation of law).

DENIAL OF MOTION TO SET ASIDE DEFAULT JUDGMENT

“Default judgments are ‘greatly disfavor[ed]’ under Texas law, consistent with the strong

policy preference for adjudicating cases on the merits.” Tabakman v. Tabakman, 728 S.W.3d 703,

707 (Tex. 2025), reh’g denied (Feb. 27, 2026); see also In re Lakeside Resort JV, LLC, 689 S.W.3d

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916, 921, 925 (Tex. 2024). We review a trial court’s refusal to grant a motion for new trial for

abuse of discretion. Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (per

curiam). A trial court has no discretion but to grant a motion for new trial if all of the elements set

forth in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex. [Comm’n Op.] 1939)

are satisfied. Id. at 926 (citing Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994)

(per curiam)). Those elements are satisfied if the movant establishes that (1) the defendant’s failure

to answer was not intentional or the result of conscious indifference but was due to accident or

mistake, (2) the defendant has a meritorious defense, and (3) granting the motion will not cause

delay or otherwise work an injury to the plaintiff. Sutherland v. Spencer, 376 S.W.3d 752, 754

(Tex. 2012) (citing Craddock, 133 S.W.2d at 126).

“Where factual allegations in a movant’s affidavits are uncontroverted, it is sufficient that

the motion for new trial and accompanying affidavits set forth facts which, if true, would satisfy

the Craddock test.” Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992); see

also Sutherland, 376 S.W.3d at 755. And, finally, “any doubts about a default judgment—not just

doubts about service—‘must be resolved against the party who secured the default.’” Tabakman,

728 S.W.3d at 708 (quoting Lakeside Resort, 689 S.W.3d at 922) (emphasis in original).

Conscious Indifference

Here, Christopher’s affidavit in support of his motion for new trial stated:

As for the failure to provide a written response to this suit, it was due to a mistake
or accident. I do acknowledge being served with the suit, and I emailed a copy of
the document to my attorney. However, it is my understanding that there was an
issue with my attorney receiving the email, and therefore, the response was delayed.

Because Christopher’s affidavit raised the question of his attorney’s actions, it was incumbent on

him to establish that both he and his attorney acted free of conscious indifference. Heine, 835

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S.W.2d at 83. His attorney, therefore, also supported the motion for new trial by stating in his

affidavit:

Due to problem our [sic] electronic email account, our firm did not receive the
documentation that Mr. Carpenter attempted to send to us by email. Despite
conducting a search of both inbox and spam box, the documentation Mr. Carpenter
sent got lost, and therefore, we were not aware that he had been formally served
with the pending divorce action.

It was not until Mr. Carpenter received a notice of judgment that he became aware
that his email was not received by our firm. At the same time, we were not aware
an answer was due until after the judgment notice was received by our client. Had
we been aware that an answer was due, it would have been filed in a timely manner
as there were issues with possession and access, spousal support, and the allocation
of attorney’s fees costs that were likely to be contested and are the subject of the
motion for reconsideration of judgment and/or new trial that has been filed with the
Court.

By these affidavits, which we must take as true since they were not controverted,

Christopher satisfied the first element of Craddock. See Hidalgo Cnty. Emergency Serv. Found. v.

Mejia, No. 13-16-00576-CV, 2018 WL 2731881, at *5 (Tex. App.—Corpus Christi–Edinburg

June 7, 2018, pet. denied) (finding no conscious indifference where email sent to adjuster who had

left company and new adjuster never found email in system). “[S]ome excuse, although not

necessarily a good one, will suffice to show that a defendant’s failure to file an answer was not

because the defendant did not care.” Sutherland, 376 S.W.3d at 755 (quoting In re R.R., 209

S.W.3d 112, 115 (Tex. 2006); see also Fidelity & Guar. Ins. Co. v. Drewery Constr. Co., 186

S.W.3d 571, 576 (Tex. 2006) (movant negated conscious indifference by establishing service

papers were lost); Scott, 873 S.W.2d at 382 (per curiam) (misplaced citation due to inadvertent

transfer of files); Strackbein v. Prewitt, 671 S.W.2d 37, 39 (Tex. 1984) (secretary was told to mail

documents but thought defendant had already done so). “The controlling fact is the ‘absence of an

intentional failure to answer rather than a real excuse for not answering.’” Tabakman, Tabakman,

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728 S.W.3d at 708 (quoting Milestone Operating, Inc. v. ExxonMobil Corp., 388 S.W.3d 307, 310

(Tex. 2012)).

Other Craddock Elements

Christopher’s affidavit also set forth meritorious defenses to the various aspects of the Final

Decree of Divorce and establishes that Catherine will not be prejudiced by a new trial. 2 With regard

to a meritorious defense, Christopher needed only to “set up” a defense, alleging facts which in

law would constitute a defense to Catherine’s claims. Here, he provided facts that could negate the

need for supervised visitation, a permanent injunction, and spousal maintenance. Relating to the

third prong, Christopher established that the issue of custody and possession can be relitigated and

that it serves both parties’ interests to have the matter finally resolved here instead of starting anew.

We agree.

CONCLUSION

Because we find that Christopher’s motion established the Craddock elements, the trial

court abused its discretion in refusing to grant a new trial.

Lori Massey Brissette, Justice

2
Christopher presents issues relating to the sufficiency of the evidence which, if taken well by this Court, would
likewise result in reversal. See Matter of Marriage of Williams, 646 S.W.3d 542, 544–45 (Tex. 2022). Specifically,
he points to the lack of any foundation for back child support and future spousal support, the lack of any inventory or
appraisal or valuation of the community assets to determine an equitable division of the marital estate, the lack of
evidence supporting the imposition of supervised visitation, the lack of evidence supporting the imposition of a
permanent injunction, and the lack of evidence supporting the award of attorney’s fees. Given these issues, this case
demonstrates why this court has applied the Craddock elements liberally, particularly in suits affecting a parent-child
relationship. See Sexton v. Sexton, 737 S.W.2d 131, 133 (Tex. App.—San Antonio 1987, no writ) (“Courts should
exercise liberality in favor of a defaulting party. . . in passing on a motion for new trial. . . particularly [] in suits
affecting the parent-child relationship. The extremely important decision of a trial court to change a managing
conservatorship should not be made casually based on the procedural advantage of one of the parties.”).

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