in the Matter of the Marriage of Anthony Lynn Williams and Theresa Gayle Williams

Supreme Court of Texas
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No. 21-0584
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In the Matter of the Marriage of Anthony Lynn Williams and
Theresa Gayle Williams

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On Petition for Review from the
Court of Appeals for the Sixth District of Texas
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PER CURIAM

This case presents the question whether a defendant challenging
the sufficiency of the evidence to support a default judgment must, to
preserve error, also file a motion for new trial under Craddock v.
Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). Because a
Craddock motion for new trial and a sufficiency challenge are distinct,
we conclude that the defendant was entitled to raise her sufficiency
challenge without also satisfying Craddock. Accordingly, we reverse the
court of appeals’ judgment and remand for further proceedings.
Respondent Anthony Lynn Williams sued his wife, petitioner
Theresa Gayle Williams, for a divorce. After Theresa failed to answer,
the trial court rendered a default judgment granting the divorce and
dividing the marital estate. Theresa then filed a motion for new trial
contending that Anthony’s attorney lied, telling her that the final
hearing had not yet been scheduled when it had. Theresa raised neither
insufficiency of the evidence nor Craddock in the trial court.
At the hearing on her motion for new trial, Theresa admitted that
she had been served but failed to file an answer because she hoped that
she and Anthony would reach a settlement. Theresa testified that she
called Anthony’s attorney after she was served and received his
assurance that he would advise her of any final hearing date. She said
that Anthony’s attorney never called, which caused her to miss the final
hearing. Anthony’s attorney testified that he made no promises to
Theresa. After the hearing, the trial court denied the motion for new
trial.
Theresa appealed to the Waco Court of Appeals, and we
transferred the case to the Texarkana Court of Appeals for docket
equalization purposes. See TEX. GOV’T CODE § 73.001. In her brief,
Theresa contended that the trial court abused its discretion in the
property division because there was no evidence that certain assets were
Anthony’s separate property and no evidence showing that the division
was just and right. She did not assign as error the trial court’s denial of
her motion for new trial.
Following precedent from the Waco Court, see TEX. R. APP. P. 41.3,
the Texarkana Court held that “this omission results in a failure to
preserve error of other claims raised on appeal, including whether the
trial court erred in its property division.” __ S.W.3d __, 2021 WL
1521978, at *1 (Tex. App.—Texarkana Apr. 19, 2021) (citing In re
Marriage of Jackson, No. 10-17-00403-CV, 2018 WL 4925780, at *1 (Tex.
App.—Waco Oct. 10, 2018, no pet.)). The court of appeals affirmed the

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trial court’s judgment and denied Theresa’s subsequent motion for
rehearing.
Theresa then filed a petition for review in this Court, arguing that
Craddock governs an equitable challenge to a default judgment while
evidentiary sufficiency is a legal challenge. In Theresa’s view, the court
of appeals’ holding that she failed to preserve her sufficiency challenge
is incorrect because Craddock does not govern legal challenges to default
judgments. She also points to Rule 33.1(d) of the Texas Rules of
Appellate Procedure, which provides that a complaint of evidentiary
insufficiency in a civil nonjury trial may be raised for the first time on
appeal.
In response, Anthony argues that a party seeking to challenge a
default judgment on appeal must first move for a new trial and establish
the Craddock elements in the trial court. In his view, it is inefficient to
allow a defaulting party to challenge a property division on appeal
without having raised that challenge in her motion for new trial.
We agree with Theresa and hold that a failure to file a motion for
new trial under Craddock in the trial court does not foreclose a party’s
ability to raise on appeal an evidentiary challenge to a default property
division. We therefore reverse.
When a properly served defendant fails to file an answer within
the time provided, the plaintiff may obtain a default judgment. TEX. R.
CIV. P. 239. One way that a defendant may attack that judgment
directly is by filing a motion for new trial. See TEX. R. CIV. P. 320. Under
Craddock, a default judgment should be set aside and a new trial
ordered when the defaulting party shows that: (1) the failure to appear

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was not intentional or the result of conscious indifference, but was the
result of an accident or mistake; (2) the motion for new trial sets up a
meritorious defense; and (3) granting the motion will occasion no delay
or otherwise injure the plaintiff. 133 S.W.2d at 126.
A defendant need not file a motion for new trial before filing a
notice of appeal, however. See TEX. R. APP. P. 25.1, 26.1. And with
exceptions not applicable here, a motion for new trial is not a
prerequisite to raising a complaint on appeal. See TEX. R. CIV. P. 324(a).
Moreover, Texas Rule of Appellate Procedure 33.1(d) specifically offers
a defaulting party an appellate remedy to challenge the sufficiency of
the evidence in a case tried to the bench. In nonjury cases, “a complaint
regarding the legal or factual insufficiency of the evidence . . . may be
made for the first time on appeal in the complaining party’s brief.” TEX.
R. APP. P. 33.1(d). Under this rule, Theresa’s complaint that the trial
court’s property division was not supported by the evidence is a
sufficiency challenge that may be raised for the first time on appeal
regardless of whether she also sought a new trial.
This conclusion finds additional support in the differences
between a sufficiency challenge and a Craddock motion. We have
consistently characterized Craddock as an equitable doctrine. See, e.g.,
Sutherland v. Spencer, 376 S.W.3d 752, 757 (Tex. 2012). A motion under
Craddock does not attempt to show an error in the judgment; rather, it
seeks to excuse the defaulting party’s failure to answer by showing the
Craddock elements. See Carpenter v. Cimarron Hydrocarbons Corp., 98
S.W.3d 682, 685 (Tex. 2002). In contrast, a complaint of legally or
factually insufficient evidence assails the judgment, seeking to show

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that it is not supported by evidence presented in the trial court. See,
e.g., Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241-42 (Tex. 2001).
Our decision in Holt Atherton Industries, Inc. v. Heine confirms
that the sufficiency of the evidence to support a default judgment can be
challenged even though the challenging party is not entitled to have the
default set aside under Craddock. 835 S.W.2d 80, 83-84 (Tex. 1992).
There, we held that the trial court had not abused its discretion by
denying a motion for new trial because it could have concluded from the
evidence that the Craddock elements were not met. Id. at 83. But we
went on to hold that there was legally insufficient evidence to support
the unliquidated damages awarded in the default judgment. Id. at
85-86. And we explained that “when an appellate court sustains a no
evidence point after an uncontested hearing on unliquidated damages
following a no-answer default judgment, the appropriate disposition is a
remand for a new trial on the issue of unliquidated damages.” Id. at 86.
Although defaults and sufficiency challenges operate somewhat
differently in the divorce context, there is similarly no reason in that
context to require a Craddock motion as a prerequisite to a sufficiency
challenge. In a suit for divorce, the pleadings are not deemed admitted
by the defendant’s failure to appear, so the plaintiff must present
sufficient evidence to support the material allegations in the petition.
See TEX. FAM. CODE § 6.701. In addition, legal and factual sufficiency
challenges do not constitute independent grounds for asserting error,
but they are relevant factors in determining whether the trial court
abused its discretion. See Beaumont Bank v. Buller, 806 S.W.2d 223,
226 (Tex. 1991). To determine whether a trial court abused its discretion

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because the evidence was legally or factually insufficient to support its
decision, a court must consider (1) whether the trial court had sufficient
evidence upon which to exercise its discretion and, if not, (2) whether
the trial court’s division of the community estate was so unjust and
unfair as to constitute an abuse of discretion. See, e.g., Lynch v. Lynch,
540 S.W.3d 107, 127-30 (Tex. App.—Houston [1st Dist.] 2017, pet.
denied). Rather than holding Theresa’s sufficiency challenge waived,
the court of appeals should have performed this analysis.
The court of appeals was constrained to follow the transferor
court’s contrary holding in Jackson, 2018 WL 4925780, at *1, which cited
a similar holding in Ellis v. Ellis, No. 13-07-0034-CV, 2008 WL 328025,
at *1 (Tex. App.—Corpus Christi–Edinburg Feb. 7, 2008, pet. denied). 1
For the reasons given above, we disapprove Jackson and Ellis.
* * *
The court of appeals erred in holding that Theresa waived her
sufficiency challenge because she did not also raise a Craddock
challenge. Without hearing oral argument, see TEX. R. APP. P. 59.1, we
grant Theresa’s petition for review, reverse the court of appeals’
judgment, and remand the case to the court of appeals for further
proceedings.

OPINION DELIVERED: June 10, 2022

1 Jackson also cited the decision in Stewart v. C.L. Trammell Properties,
Inc., No. 05-04-01027-CV, 2005 WL 2234637, at *1 (Tex. App.—Dallas Sept.
15, 2005, no pet.). But Stewart followed the same approach to the Craddock
and sufficiency challenges that we took in Holt Atherton.

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