In the Matter of the Marriage of Jerry Bracken and Cristina Bracken and in the Interest of H.L.B., a Child v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo

No. 07-25-00142-CV

IN THE MATTER OF THE MARRIAGE OF JERRY BRACKEN AND
CRISTINA BRACKEN AND IN THE INTEREST OF H.L.B., A CHILD

On Appeal from the 481st District Court
Denton County, Texas1
Trial Court No. 23-11472-481, Honorable Crystal Levonius, Presiding

June 9, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and PRATT, JJ.

Appellant Cristina Bracken appeals a post-answer default judgment granted in

favor of Appellee Jerry Bracken. By eight issues, she claims the trial court erred in several

aspects of the case. We reverse the judgment.

1 This cause was originally filed in the Second Court of Appeals and was transferred to this Court

by a docket equalization order of the Supreme Court of Texas. TEX. GOV’T CODE § 73.001. Where there is
a conflict with the precedent of this Court, this appeal has been decided in accordance with the precedent
of the Second Court of Appeals. TEX. R. APP. P. 41.3; Mitschke v. Borromeo, 645 S.W.3d 251 (Tex. 2022).
BACKGROUND

In December 2023, a few months after the birth of their son, Jerry Bracken filed an

original petition for divorce to dissolve his marriage to Cristina Bracken. While Cristina

was initially able to retain counsel, her attorney withdrew by the end of April 2024. By

July, she had found new representation, but the firm withdrew by the end of August 2024.

Cristina proceeded pro se for the remainder of the proceedings.

The trial court set the final trial in this matter for February 24, 2025, at 9:00 a.m.

While this date appeared in the motion for withdrawal filed by Cristina’s second set of

attorneys, Cristina failed to appear at trial. At trial and after hearing evidence, the trial

court rendered a default judgment in favor of Jerry. The judgment, among other things,

granted Jerry sole custody of their child, denied Cristina access to her child, ordered her

to pay child support, and ordered her to pay half of all daycare costs. After receiving

notice of the default judgment, Cristina—still proceeding pro se—filed a notice of appeal,

a motion to set aside the default judgment, and a motion for new trial. The trial court did

not rule on the motions, and the motions were overruled by operation of law. See TEX.

R. CIV. P. 329b(c).

By this appeal, Cristina argues the trial court erred by the following: (1) dividing

the marital estate; (2) denying her access to her child and finding she poses a danger to

her child’s physical health and emotional welfare; (3) granting a permanent injunction

against her without sufficient evidence; (4) waiving on her behalf the issuance and service

of a writ of injunction; (5) ordering her to pay $786.05 in monthly child support payments;

(6) ordering her to pay 50% of her child’s daycare expenses as additional child support;

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(7) restricting the residence of her child to the State of Texas; and (8) determining she

received proper notice of the final trial.

ISSUE EIGHT—NOTICE OF THE FINAL TRIAL

We begin with Cristina’s eighth issue first because it offers her the greatest relief.

Cristina argues the trial court erred by finding that Cristina received proper notice of the

final trial. Thus, she did not appear at final trial and was not able to present her case.

We agree.

STANDARD OF REVIEW

Cristina filed a restricted appeal, but Jerry insists we should treat this appeal as a

direct appeal. Because of the differing standards of review, before addressing the merits

of Cristina’s complaint on this issue, we must first address whether this is a restricted or

direct appeal. Cristina timely filed a notice of appeal challenging the judgment from the

final hearing on March 17. The trial court signed the final decree of divorce on March 18.

Even though her filing of her notice of appeal was premature at the time, we deem her

notice filed after the date of the signing of the judgment. TEX. R. APP. P. 27.1(a).

Therefore, we treat this appeal as a direct appeal from a post-answer default judgment. 2

The standard of review for a post-answer default judgment, in which the appellant

filed an answer but did not appear at trial, is the same as a no-answer default judgment,

in which the appellant did not file an answer or appear in the case. Hampton v. Hampton,

2 “A restricted appeal permits a direct attack on a default judgment when the deadline for filing an

ordinary appeal has passed.” Shamrock Enters., LLC v. Top Notch Movers, LLC, __ S.W.3d__, No. 24-
0581, 69 Tex. Sup. Ct. J. 208, 2026 Tex. LEXIS 37, at *3 (Jan. 16, 2026) (citations omitted).
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No. 02-23-00080-CV, 2024 Tex. App. LEXIS 2553, at *6 n.5 (Tex. App.—Fort Worth Apr.

11, 2024, no pet.) (mem. op.) (citation omitted). If a party has no notice of the trial setting

at which a post-answer default judgment is granted, then the party is entitled to a new

trial. Yeoung Jin Kim v. Kim, No. 02-19-00228-CV, 2020 Tex. App. LEXIS 6919, at *13

(Tex. App.—Fort Worth Aug. 27, 2020, no pet.) (mem. op.). We review the denial of a

new-trial motion for an abuse of discretion. 1 Solar Sol., LLC v. S&A Wholesale Inc., No.

02-25-00220-CV, 2025 Tex. App. LEXIS 8204, 2025 WL 2989767, at *2 (Tex. App.—Fort

Worth Oct. 23, 2025, no pet.) (mem. op.) (citations omitted). A trial court abuses its

discretion if it acts without reference to any guiding rules or principles—that is, if its act is

arbitrary or unreasonable. Id.

To set aside the default judgment here, Cristina must satisfy the three-factor

standard established in Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d

124, 126 (Tex. [Comm'n Op.] 1939). However, when a party receives no notice of a trial

setting, she satisfies the first prong of Craddock and does not have to meet the remaining

prongs of the test to be entitled to a new trial. Mathis v. Lockwood, 166 S.W.3d 743, 744

(Tex. 2005); In re K.B.A., 145 S.W.3d 685, 692 (Tex. App.—Fort Worth 2004, no pet.)

(citations omitted).

ANALYSIS

Cristina argues her due process rights were violated because she did not receive

notice of the final trial setting. In response to Cristina’s notice argument, Jerry argues the

trial court could have found Cristina had notice of the trial setting through: (1) imputed

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notice because Cristina was still represented when the final trial setting was entered, and

(2) a presumption of service of pleadings containing the final trial setting.

Default judgments are greatly disfavored 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) (citing In re Lakeside Resort JV, LLC, 689 S.W.3d 916,

921, 925 (Tex. 2024), quotations and edit omitted). Accordingly, any doubts about a

default judgment—not just doubts about service—must be resolved against the party who

secured the default. Id. at 708 (quotations omitted).

Furthermore, the right to receive trial notice is fundamental to the administration of

justice. See Highsmith v. Highsmith, 587 S.W.3d 771, 778 (Tex. 2019). Due process

demands that a party be afforded an opportunity to be heard. Id. Once a defendant

makes an appearance, that defendant is entitled to notice of the trial setting. Tactical Air

Def. Servs. v. Searock, 398 S.W.3d 341, 344 (Tex. App.—Dallas 2013, no pet.). Notice

may be either actual or constructive, if it is reasonably calculated under the circumstances

to apprise the party of the pendency of the action and to provide an opportunity to present

objections. In re C.C.C., No. 11-23-00041-CV, 2023 Tex. App. LEXIS 6320, at *11 (Tex.

App.—Eastland Aug. 17, 2023, no pet.) (mem. op.).

We have carefully reviewed the record for any evidence relevant to notice. As

discussed in detail below, we note the following facts critical to our decision:

1. Cristina was represented by an attorney on August 8, 2024, when

the parties supposedly agreed to the final trial date as February 24, 2025.

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However, no notice of hearing for final trial is included in the Clerk’s Record,

and it is only referenced in the Register of Actions.

2. On August 12, 2024, Cristina’s counsel of record filed a Motion for

Withdrawal of Counsel, claiming they were unable to effectively

communicate with their client. The motion stated pending settings and

deadlines, including the final trial setting for July 24, 2025. The motion also

stated, “A copy of this Motion has been delivered to CRISTINA BRACKEN,

who is hereby notified in writing of her right to object to this Motion.” It then

listed Cristina’s last known address and an email address. The motion

contained a notice to Cristina of her right to object to the motion. The

certificate of service on the motion, signed by attorneys for Cristina, stated,

“I certify that a true copy of this Motion for Withdrawal of Counsel was

served in accordance with rule 21a of the Texas Rules of Civil Procedure

on the following on August 12, 2024:” Below this statement, Cristina’s

counsel listed Jerry’s counsel of record. Also, attached to the motion was

an Automated Certificate of eService, which did not list Cristina.

3. Cristina did not file a response to the motion.

4. Without holding a hearing, on August 27, 2024, the trial court entered

an Order on the Motion for Withdrawal of Counsel, which included the final

trial date. This order makes a finding that a copy of the motion was

delivered to Cristina. We also note this order confirmed Cristina’s mailing

address and ordered “all notices in this case shall be either delivered to

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CRISTINA BRACKEN in person or sent to CRISTINA BRACKEN at that

address by both certified and regular first-class mail.”

5. While the August 27, 2024 Order includes an automated certificate

of eService, it does not list Cristina, and no other proof of service on Cristina

is provided.

6. Subsequent motions and orders filed in the case include a certificate

of service indicating Cristina was served through the electronic filing

manager system. None of them mention service to Cristina in person or by

certified and regular mail. None of these motions and orders state the final

trial date.

7. At final trial, the trial court called the hall for Cristina and indicated

she was not present on the record.

8. Prior to presenting his case, Jerry’s counsel reiterated that the Order

for the Motion for Withdrawal of Counsel was filed, mailed to Cristina, and

emailed to Cristina.

9. On the record, the trial court takes judicial notice of the items Jerry’s

counsel references and “the Court’s file.”

10. No sworn testimony or exhibits were presented that confirmed that

Cristina received citation, notice, expressly or constructively or that

otherwise indicated Cristina's personal knowledge of the final trial setting.

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11. Trial court made no finding on the record that Cristina was duly and

properly cited. 3

12. After filing her Notice of Appeal on March 18, 2025, Cristina also filed

a Motion to Set Aside Default Judgment, which included her unsworn

statement that she was “[n]ot served or notified” and “I was not properly

notified. I showed up at the wrong time, hearing was over by the time I got

to court.”

13. On April 17, 2025, Cristina also filed a Motion for New trial, which

included arguments related to improper service and/or notice and default

judgment. She included an affidavit with this motion.

Imputed Notice Through Counsel

Jerry argues the notice requirement was satisfied when Cristina’s attorneys at that

time agreed to the final trial date on August 8, 2024. However, the attorney-client

relationship is one of principal and agent. See Gavenda v. Strata Energy, Inc.,

705 S.W.2d 690, 693 (Tex. 1986). “Where the agent abandons his office before

conclusion of the proceedings, any knowledge possessed by the agent cannot be

imputed to the principal.” Tactical Air Def. Servs., 398 S.W.3d at 346 (citing

3 Importantly, although the record is devoid of any evidence or sworn testimony supporting the

notice contentions of Jerry’s counsel, trial court noted this particular finding in its Final Decree of Divorce.
Specifically, the trial c recited, “Respondent, CRISTINA BRACKEN, although duly and property [sic] cited
did not appear and wholly made default.” Regardless of the recitation in the trial court's order, there is no
evidence in the record to support this finding. At most, the judicial docketing entries simply reveal that
Cristina did not appear.
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Langdale v. Villamil, 813 S.W.2d 187, 189 (Tex. App.—Houston [14th Dist.] 1991,

no writ).

In seeking to withdraw from representation, Cristina’s attorneys did not comply with

the requirements of Rule 10. See TEX. R. CIV. P. 10. The rule requires an attorney

seeking to withdraw from representing his clients to give them notice either in person or

by mail at their last known address by both certified and regular first-class mail. Id. The

motion does not indicate it was delivered in this manner. This failing is significant in the

context of determining whether notice should be imputed to Cristina.

When a statute or court rule provides the method by which notice shall be given in

a particular instance, the notice provision must be followed with reasonable strictness.

John v. State, 826 S.W.2d 138, 141 n.4 (Tex. 1992); Gadberry Constr. Co. v. Raney, No.

02-18-00263-CV, 2019 Tex. App. LEXIS 6189, at *3 (Tex. App.—Fort Worth July 18,

2019, no pet.) (mem. op.) (“An attorney may withdraw from representing a client only if

the attorney satisfies civil-procedure rule 10's requirements.”). Withdrawal rules contain

provisions designed to protect the client’s interests. Moss v. Malone, 880 S.W.2d 45, 50

(Tex. App.—Tyler 1994, writ denied) (op. on reh’g).

Adequate notice is not a mere formality. By failing to comply with the requirements

of rule 10 and its provisions designed to ensure clients are notified when their attorney

withdraws, Cristina’s former attorneys deprived her of valuable due process rights.

Unexplained difficulty communicating with clients does not excuse their failure to comply

with the straightforward requirements of rule 10. Under the facts of this case and

considering the importance of preserving a client’s right to due process when an attorney

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withdraws, we conclude that Cristina’s former attorneys’ knowledge of the trial setting

cannot be imputed to her.

Presumption of Service

Because the date was also included in the Order on Motion for Withdrawal of

Counsel, Jerry also relies heavily on the presumption of service under Rule 21a. All

pleadings are required to be served under Rule 21a and must contain a certificate of

service in the document itself. See TEX. R. CIV. P. 21(d), 21a(a). Notice sent pursuant to

Rule 21a permits the court to presume that notice was received. Id.; Mathis, 166 S.W.3d

at 745. However, this presumption cannot be raised when service cannot be proved, and

the record is devoid of evidence that appellant had been properly served notice pursuant

to Rule 21a. Mathis, 166 S.W.3d at 745. Without the presumption, a party alleging lack

of notice does not initially bear the burden of proof. Id. As a practical matter, when it

cannot be presumed that service was provided pursuant to Rule 21a, other than to

challenge service by disputing receipt of notice, an appellant can only reference the trial

court's record and point out an absence of a return of service or other written evidence of

notice.

Here, neither the Motion for Withdrawal of Counsel, the corresponding order, nor

the attached certificates of service indicate Cristina was served by any method, let alone

the ones specified in Rule 21a. Furthermore, the fact that the order specifically directed

notices to be delivered in person or by certified and regular mail creates a court-ordered

method of service. Subsequent service by email would be non-compliant with the trial

court's order and Rule 21a, meaning no presumption of receipt arises. In the absence of

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a certificate of service or some other competent evidence of service, a court cannot

presume that notice was received. See Mathis, 166 S.W.3d at 745. Additionally, Jerry’s

attorney’s unsworn assertion of notice to Cristina at the final hearing is not evidence that

leads to a presumption of notice either. At the final trial, Jerry’s attorney discussed the

background of the case and asked the trial court to take judicial notice of the contents of

the court’s file, presumedly to prove that Cristina had notice of trial. However, an

attorney’s statements are generally not evidence. Vaccaro v. Raymond James &

Assocs., 655 S.W.3d 485, 491 (Tex. App.—Fort Worth 2022, no pet.). And, without

discussing whether judicial notice was proper, based on our review of the record, the trial

court’s file does not support a presumption of notice.

Without imputed notice or the presumption of notice, there was no evidence that

Cristina received notice of the trial setting. No other alternatives established service of

notice. With no notice of the trial setting, Cristina satisfies the first prong of Craddock and

does not have to meet the remaining prongs of the test to be entitled to a new trial. Mathis,

166 S.W.3d at 744. Accordingly, we sustain Cristina’s eighth issue.

CONCLUSION

We reverse the judgment of the trial court and remand this matter for a new trial.

Because we have reversed the trial court’s judgment, we need not address the remainder

of Cristina’s issues, as they are rendered moot. TEX. R. APP. 47.1.

Laura A. W. Pratt
Justice

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