Opinion issued June 19, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-01087-CV

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JZAVELA-ARETHEA KAY-DIU DOUGHERTY-WILLIAMS, Appellant

V.

MICHAEL STEVEN DOUGHERTY, Appellee

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Case No. 2013-02545

MEMORANDUM OPINION

Appellant Dougherty-Williams appeals the underlying default divorce 

judgment, seeking a new trial. We affirm. 
2

BACKGROUND

Appellee Dougherty filed for divorce on January 15, 2013, and DoughertyWilliams answered through her attorney on February 1, 2013. In April 2013,

Dougherty-Williams’s attorney withdrew from representation, and DoughertyWilliams continued pro se. Dougherty-Williams did not appear at the August 26, 

2013 trial, resulting in a default judgment in favor of Dougherty that was signed on 

September 10, 2013. 

On September 13, 2013, Dougherty-Williams filed a “Motion to Set Aside 

Default Judgment” and, on October 9, 2013, a “Motion for New Trial.” Following

a November 7, 2013 evidentiary hearing, the associate judge denied DoughertyWilliams’s motions. The presiding judge then held another evidentiary hearing on 

December 4, 2013, and then again denied Dougherty-Williams’s motions. 

Dougherty-Williams appeals the default judgment and the denial of her request for 

a new trial. 

ISSUES ON APPEAL

On appeal, Williams raises three issues:

1. “The trial court erred in granting [Dougherty’s] divorce petition 

by default as [Dougherty-Williams] did not receive notice of 

the trial on the merits.” 

2. “[Dougherty-Williams] did not have an opportunity to be heard 

concerning the division of community property, consequently, 

the division of community property was grossly unjust and 

inequitable.” 
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3. “The trial court erred in denying [Dougherty-Williams]’s 

motion for new trial giv[en] the attending facts.” 

POST-ANSWER DEFAULT

At the beginning of the August 26, 2013 trial, the trial court announced that 

it was taking judicial notice that (1) Dougherty-Williams made a general 

appearance and was represented by counsel until April 26, 2013, (2) DoughertyWilliams was sent a scheduling order and notice indicating that trial was set for 

August 26, 2013, and (3) the scheduling order and notice were mailed to “2534 

Splintwood Court, Kingwood, Texas 77345,” which was the address listed on 

Dougherty-Williams’s attorney’s motion to withdraw.

Dougherty testified at trial that (1) he and his family had been domiciled in 

Harris County for more than six months, (2) his marriage had become 

unsupportable, (3) his wife was not currently pregnant, and (4) the only child of the 

marriage is 18 years old and attends Kingwood College. Dougherty testified that 

the Splintwood Court home was Dougherty-Williams’s last known address. 

Dougherty’s inventory and proposed property division were entered into evidence. 

He proposed awarding to Dougherty-Williams’ seventy-five percent of the net 

proceeds from the sale of their home and dividing various assets, retirement 

accounts, and bank accounts between them. At the close of the evidence, the trial 

court granted the divorce and adopted Dougherty’s proposed property division.
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The final decree awarded to Dougherty approximately 52% of the total

community estate and awarded to Dougherty-Williams approximately 48% of the 

total community estate. 

In her first issue, Williams argues that “the trial court erred in granting 

[Dougherty]’s divorce petition by default judgment as [Dougherty-Williams] did 

not receive notice of the trial on the merits.” Specifically, Dougherty-Williams

argues that she failed to appear at trial because Dougherty had forwarded all the 

mail from their home, i.e., the Splintwood Court house, to a post-office box to 

which she did not have access. Finally, she argues that default judgment was 

improper because Dougherty did not introduce evidence in support of his petition.

Dougherty responds that Dougherty-Williams had “actual or constructive 

notice of the trial date” and “disputes the unfounded and baseless allegation 

concerning the alleged forwarding of [Dougherty-Williams]’s mail.” He argues 

that “the trial court acted properly given the evidence and testimony before the 

court.” 

A defendant who has made an appearance in a cause is entitled to notice of 

the trial setting as a matter of due process under the Fourteenth Amendment. LBL 

Oil Co. v. Int’l Power Servs., Inc., 777 S.W.2d 390, 390–91 (Tex. 1989). A 

defendant who does not receive notice of a post-answer default judgment 

proceeding is deprived of due process. Id. 
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“Notice of a trial setting does not always appear in the clerk’s record and 

need not affirmatively appear in the record as a whole.” In re Marriage of Parker, 

20 S.W.3d 812, 816 (Tex. App.—Texarkana, 2000, no pet.). The law presumes 

that a trial court will hear a case only after giving proper notice to the parties. Tex. 

Dep’t of Pub. Safety v. Mendoza, 956 S.W.2d 808, 812–13 (Tex. App.—Houston 

[14th Dist.] 1997, no pet.). Here, nothing in the trial record rebuts that 

presumption, and there is affirmative evidence that notice of the trial setting was 

sent to Dougherty-Williams at her current address. 

In support of her argument that default judgment should not have been 

granted because she did not receive notice of the trial setting, Dougherty-Williams

does not point to any evidence from the trial record contradicting the evidence that 

notice was provided.1 Rather, she offers only her contention that “if this case is 

remanded she possess[es] and will show unto the trial court letters from the post 

office supporting and buttressing” her contention that Dougherty forwarded her 

mail without her knowledge. But the rules of appellate procedure require 

appellant’s brief to contain “a clear and concise argument for the contentions 

 

1

In arguing that the default judgment was improper, she does cite evidence from the 

motion-for-new-trial hearing, which we discuss in addressing her argument that 

the trial court erred by denying her motion for new trial. But that evidence is not 

properly considered in determining whether the trial court erred in granting a 

default judgment in the first instance after finding that Dougherty-Williams was 

properly provided notice of trial, because the new-trial evidence was not before 

the trial court when it granted the default judgment. 
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made, with appropriate citations to . . . the record.” TEX. R. APP. P. 38.1(i). 

Because the record from trial affirmatively demonstrates that Dougherty-Williams

was provided notice of the trial setting and nothing in the actual record supports 

Dougherty-William’s argument otherwise, we reject her argument that the trial 

court erred in entering a default judgment because notice was allegedly defective.

Dougherty-Williams’s argument that the default divorce was improper 

because Dougherty did not introduce evidence in support of his petition is likewise 

not supported by the actual trial record. Dougherty testified in support of his 

petition for divorce, and the court admitted into evidence his sworn inventory and 

proposed property division, which Dougherty testified was “just and right, fair and 

equitable.” Dougherty-Williams does not complain of any specific deficiency in 

his testimony or evidence. 

We overrule Dougherty-Williams’s first issue. 

JUST AND RIGHT DIVISION

In her second issue, Dougherty-Williams argues that, because she “did not 

have an opportunity to be heard concerning the division of community property, . . 

. a just and right division of community property of the parties was not made by the 

trial court.” Specifically, she contends that she was entitled to spousal support 

because “the parties were married for over 10 years” and that, although their son is 

over the age of 18, he “requires substantial care because of a disability and [she] 
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presently lacks earning capacity adequate to provide support for [his] minimum 

reasonable needs.” 

Dougherty responds that the trial court’s division of property was within the 

court’s discretion. Specifically, he notes that the trial court had before it a 

complete inventory of the community’s assets and liabilities, and that Dougherty 

testified that his proposed division was “just and right, fair and equitable.” Finally, 

he argues that Dougherty-Williams’s assertion that she was entitled to child 

support for their adult child is not supported by any evidence before the trial court, 

and does not speak to whether the property division was just and right. 

The standard of review for property division issues in family law cases is 

abuse of discretion. See Schlueter v. Schlueter, 975 S.W.2d 584, 589 (Tex. 1998). 

“A default judgment . . . will not stand without affirmative proof to support it.” 

Wilson v. Wilson, 132 S.W.3d 533, 539 (Tex. App.—Houston [1st Dist.] 2004, pet. 

denied). Dougherty-Williams does not, however, challenge the sufficiency of the 

evidence presented in support of the trial court’s division of property; nor does she 

contend that the division was inequitable on the evidence presented. Rather, her 

only argument is that she was not given an opportunity to be heard as to other 

evidence that could have supported a different division. Given our holding that the 

record established she was properly given notice and, thus, an opportunity to be 
8

heard, her argument that a just and right division was not made because she was 

deprived of an opportunity to be heard also fails. 

We overrule Dougherty-Williams’s second issue. 

MOTION FOR NEW TRIAL

On September 13, 2013, Dougherty-Williams filed a Motion to Set Aside 

Default Judgment in which she stated that her “failure to appear on the trial date 

was the result of lack of notice of trial,” and that she “was pro-se and relied to her 

detriment on the fact that she thought her husband, Petitioner[,] or his attorney 

would notify her of a trial setting.” She attached an affidavit averring that she was 

not aware of the setting and that, although Dougherty had called her several times 

over the summer, he never mentioned the trial setting. 

On October 9, 2013, Doughtry-Williams filed a Motion for New Trial 

stating that (1) she did not have notice of the trial setting; (2) her attorney had 

withdrawn before trial and her attorney’s motion to withdraw did not mention a 

trial setting; (3) she did not receive the certified mail notices of the trial setting; (4) 

her failure to appear was not intentional or the result of conscience indifference;

(5) had she had notice, she would have appeared as she did for all hearings prior to 

trial; (6) she had a meritorious defense because she would have introduced 

evidence that she was a stay-at-home mother raising the parties’ special needs 
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child, and a student who has not worked in the past 25 years; and (7) a new trial 

would not injure Dougherty.

Two hearings were held. An associate judge held the first hearing on 

November 7, 2013, and both Dougherty-Williams and Dougherty testified. 

Dougherty-Williams testified that she was not aware of the trial setting, that she 

was not represented by counsel, and that she did not receive any correspondence 

about the trial date from the court, Dougherty, or Dougherty’s attorney. According 

to Dougherty-Williams, she first learned of the trial date after it has passed from 

the new attorney she hired. Finally, she stated that she believed that the trial 

court’s division would have been different if it had heard evidence that she would 

have presented. On cross-examination, she verified that her Splintwood Court 

address was correct on numerous pieces of certified-mail that were stamped

“unclaimed.”

Dougherty testified that Dougherty-Williams’s testimony that he never told 

her about the trial date was not accurate. He testified that he told her about the trial 

date on at least two occasions, once in May and once around June. 

The following exhibits were also introduced at the hearing: 

 June 19, 2013 letter from Dougherty’s attorney—which states it was 

sent via both certified and regular mail—addressed to DoughertyWilliams at her Splintwood Court home address, enclosing discovery 

requests,
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 certified mail envelope, postmarked June 26, 2013, addressed to 

Dougherty-Williams at her Splintwood Court home address, marked 

“unclaimed” and “return to sender,” 

 July 19, 2013 letter from Dougherty’s attorney—which states it was 

sent via both certified and regular mail—addressed to DoughertyWilliams at her Splintwood Court home address, notifying her about 

the August 26, 2013 trial date and time, and requesting that 

Dougherty-Williams contact him about selecting a mediator, 

 certified mail envelope, postmarked July 19, 2013, addressed to 

Dougherty-Williams at her Splintwood Court home address, marked 

“unclaimed” and “return to sender,”

 July 23, 2013 letter from Dougherty’s attorney—which states it was 

sent via both certified and regular mail—addressed to DoughertyWilliams at her Splintwood Court home address enclosing 

Dougherty’s Inventory and Appraisement, and reminding Williams 

that there is an August 26, 2013 trial date and that they need to select 

a mediator,

 certified mail envelope, postmarked July 23, 2013, addressed to 

Dougherty-Williams at her Splintwood Court home address, marked 

“unclaimed” and “return to sender,” 

 August 2, 2013 letter from Dougherty’s attorney—which states it was 

sent via both certified and regular mail—addressed to DoughertyWilliams at her Splintwood Court home address enclosing 

Dougherty’s Proposed Division of Property,

 certified mail envelope, postmarked August 5, 2013, addressed to 

Dougherty-Williams at her Splintwood Court home address, marked 

“unclaimed” and “return to sender.”

At the close of the evidence, the associate judge denied DoughertyWilliams’s request to set aside the default judgment.

On December 4, 2013, the presiding judge held a de novo hearing on 

Dougherty-Williams’s request for a new trial. Dougherty-Williams again testified 
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that she did not have actual notice of the trial date and that she attended every 

hearing about which she had notice. 

Dougherty-Williams also testified that she had trouble receiving mail at her 

house, with some items taking two to four months to be delivered, and some never

arriving. She stated that she did not receive mail for the summer and that she went 

to the post office almost every day to complain about her lost mail. She verified 

that each exhibit introduced at the November hearing was properly addressed to 

her, but stated that she had never seen any of the correspondence and had never 

received a notice from the post office about having certified mail to pick up. Each 

of the exhibits from the November hearing was again admitted into evidence. 

Dougherty-Williams’s next-door neighbor testified that she had in the past 

received other people’s mail at her house, including the Doughertys’ mail, and 

that—when she receives her neighbors’ mail by mistake—she delivers the mail to 

the correct person. 

Dougherty again testified that he verbally notified Dougherty-Williams at 

least twice about the trial date. He testified to recalling only one occasion when

they had trouble with their mail service before he moved out of the Splintwood 

Court home in December of 2012. At the close of the hearing, the trial court 

denied Williams’s request for a new trial.
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In her third issue, Dougherty-Williams argues that the trial court erred in 

denying her request for a new trial. Specifically, she contends that “neither 

[Dougherty] nor his counsel was able to prove that [Dougherty-Williams] received 

notice of the trial” and that a new trial should have been granted in the interest of 

justice because Dougherty forwarded all their mail to a post office box that she 

could not access. 

Dougherty responds that the trial court’s denial of Dougherty-Williams’s 

motion was within its discretion because the trial court was the fact-finder and sole 

judge of the evidence and credibility. Given Dougherty’s testimony that he 

provided Dougherty-Williams with actual notice, and the evidence supporting the 

inference that Dougherty-Williams was engaged in selective acceptance of the 

certified mail related to this case, he contends that it was within the trial court’s 

discretion to conclude that Dougherty-Williams had received actual or constructive

notice of the trial setting.

We agree with Dougherty. The disposition of a motion for new trial is 

within the trial court’s sound discretion; we will not disturb the court’s ruling 

absent an abuse of that discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 

796, 813 (Tex. 2010). A trial court abuses its discretion if it acts in an 
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unreasonable or arbitrary manner or without reference to any guiding rules and 

principles. Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004).2 

“When the evidence presented by the defaulting party is controverted by the 

opposing side, it is the duty of the court, as the fact finder at a hearing on motion 

for new trial, to ascertain the true facts surrounding the default circumstances.” 

Harmon Truck Lines, Inc. v .Steele, 836 S.W.2d 262, 265 (Tex. App.—Texarkana 

1992, writ dism’d). The court, as the fact-finder at the hearing, is “the sole judge 

of the credibility of the witnesses and the weight to be given to their testimony.” 

Stein v. Meachum, 748 S.W.2d 516, 518 (Tex. App.—Dallas 1988, no writ).

Here, the trial court was faced with two directly contradictory contentions, 

i.e., Dougherty’s assertion that he told Dougherty-Williams about the trial setting 

more than once and Dougherty-Williams’s insistence that Dougherty did not tell 

her about the trial setting. It was squarely within the trial court’s providence to 

assess which testimony was credible. 

 

2 Generally, before a default judgment can be set aside and a new trial granted, the 

defaulting party must satisfy the three elements of the Craddock test, i.e., (1) the 

defaulting party’s failure to answer or to appear was not intentional, or the result 

of conscious indifference, but was due to a mistake or an accident; (2) the 

defaulting party has a meritorious defense or claim; and (3) the motion is filed at a 

time when the granting of a new trial will not occasion delay or work other injury 

to the prevailing party. Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 392–

93, 133 S.W.2d 124, 126 (Tex. 1939). We have held, though, that if a defaulting 

party establishes no reasonable notice of a trial setting, it need not establish the 

second and third prongs of Craddock. Mahand v. Delaney, 60 S.W.3d 371, 375 

(Tex. App.—Houston [1st Dist.] 2001, no pet.).
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The trial court also noted, at the close of the December hearing, that the 

court sent Dougherty-Williams notice of the trial setting by regular mail, which 

was not returned, and that Dougherty’s attorney also sent numerous certified 

notices that were all unclaimed at the post office. Each of these notices from 

Dougherty’s attorney was also sent by regular mail, which was not returned. 

Although Dougherty-Williams testified at the December hearing that much of her 

mail was not delivered over the summer, she made no mention of problems with 

mail service during her testimony at the November hearing. 

The trial court could have also found Dougherty-Williams’s testimony that 

she never received notice from the post office about her numerous pieces of 

certified mail not credible, given that she later testified that she constantly, over the 

course of the summer, inquired in person about her mail at the post office. 

Approximately $14,980.00 v. State, 261 S.W.3d 182, 189 (Tex. App.—Houston 

[14th Dist.] 2008, no pet.) (“Constructive notice may be established if the serving 

party demonstrates compliance with Rule 21a and presents evidence that the 

intended recipient engaged in instances of selective acceptance or refusal of 

certified mail relating to the case.”). 

Because Dougherty-Williams has not demonstrated that the trial court 

abused its discretion in denying her motion for new trial, we overrule her third 

issue. 
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CONCLUSION

We affirm the trial court’s judgment. 

 

Sherry Radack

Chief Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.