### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00531- CV

Ge orge M ichael Henderson, App ellant

v. Robert a Lee Henderson, Appellee

F ROM TH E DISTRI CT COURT O F B LANCO CO UNTY, 424 TH JUDICI AL DISTRICT NO. CV0679 9, H ONO RAB LE DANIEL H . M ILLS, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N Following a hear ing which appellant Geor g e Michae l Hende rson did not attend, the district court rende red a final divorce decr ee end i ng Geor g e’s marria g e to appellee Roberta L ee 1 Hende rson, dividing the parties’ marital estate, and awa rding Roberta spousal maintenanc e. Geor g e timely filed a motion to set aside the judgme nt and for new trial, ref ere ncing elements require d under Craddock v. Sunshine Bus Lines, Inc. , 133 S.W .2d 124, 126 (Tex. 1939), but without verific ation or attached e v i d en ce . After the t hirty -day deadline for fili ng post-judgme nt motions had ex pired, but while hi s motion was sti ll pending , Geor g e supplemente d and then amended the motion, eac h time attaching evidenc e. Howeve r, his new trial motion was ultimately overr uled. I n a single issue

Be cause the parties share d a common surname at times rele vant to t h i s appea l, we will 1 identify them by their first name s to avoid confusion.on appea l, Geor g e argues that the district court err ed and abused its discretion in deny i ng him a

new tria l. Concluding other wise on this rec ord, we will affirm the district c ourt’s judg ment. After being marrie d for more than thirty -three y ear s, Roberta filed for divorce from Geor g e on June 22, 2009. During the following month, Geor g e ex ecute d, under oath, a waiver of service , which was filed with the district court in September of that y ear . I n this document, Geor g e

aver red that he had been provided a copy of Roberta’ s divorce petition and understood its contents, that he had waived the require ment of service by citation and enter ed his “appe ara nce in the case for all purposes,” and that, wh i l e h e “a gre e[d] that this case may be taken up and considere d by the Court without further notice to me,” he “wa nt[ ed] to be notified of any hear ing or trial of this case ” and did “ not w aive any rig hts I may have with r eg ard to the division of my interest in my spouse’s and my proper

ty .” Geor g e further aver

red that his mailing addre ss was a post office box in Cleburne, that he understood that any notices reg arding the proce eding would be sent there , and that he had a duty to n o t i fy both the court and Roberta’ s counsel if his addre ss chang ed during the proce eding

. This post office box , the rec ord ref lects, was located in a Cleburne business known as Pack ‘n’ Mail. I n April 2010, the district court g ave the parties notice of its intent to dismiss the case for want of prose cution and set a dis missal hear ing for J une 23. This prompted R oberta to obtain

a hear ing on J une 11 to prove up and enter the final divorce decr ee. Roberta serve d notice of the hear ing to Geor g e at his Cleburne post office box via certified mail sent on J une 4. An employ ee of the Pac k ‘n’ Ma il where the box was located sig ned the r eturn re ceipt on June 7.

The hear ing went forwa

rd as schedule d on J une 11. Geor g e did not attend. Roberta prese nted testimony that, among other things, Geor g e had left the mar i t al home and taken up

2residenc e with another woman, that he ear ned $300, 000 annually and she only $14,000, and that she had he alth problems. Followingthis testim ony and the pr esentation of evidenc e that included Geor g e’s waiver of service , a cer tif i ca t e o f s ervic e and cer

tified mail return rec eipt showing that notice of the hear i n g h ad b een sent to Geor g e and rec eived by someone at his addre ss, and information conce rning the parties’ assets, the district court signe d a final divorce decr ee dissolving the m arr iag e on the ground of adultery and divi ding the proper ty , awa rding a net of

$96,137.82 in
assets to Roberta and a net of $110,310.00 in assets to Geor g e. I n addition, the district court found that Roberta wa s elig ible for maintena nce unde r cha

pter 8 of the family code, see Tex. F am. Code Ann. §§ 8.051-.305 (West 20 0 6 ), and order ed Geor g e to pay Roberta maintenanc e of $2,900 per month, “until a total of $104,400 ha s been pa id (J uly 1, 2013)” or

either pa rty dies. 2 On J uly 9, 2010—within the thirty -day period for filing post-judgme nt motions, see Tex. R. C iv. P. 329b(a), (g )—Ge org e filed a “Motion to Set J udg ment Aside and for New Tria l.” I n this motion, Geor g e stated that he “has a meritorious defe nse,” that he “re ce i v ed

corr espondenc e stating that the matter would be dismiss ed and believed that it was dismiss ed,” that h e “did not knowing ly or intentionally waive his rig ht to a hear ing, but relied on the Petitione r’ s repr esentations,” that “[a]s soon as R es p o n d ent beca me awa re of the final judgme nt, he filed this his Motion for New Trial,” and that “[o] n or about J uly 7, Respondent rec eived and signe d fo r a

Geor g e decr ies what he char acte rizes as a 97-to-3 perc ent division of the marital assets in 2 favor of Roberta, but he appar ently derive s these perc entag es by adding to Roberta’ s share and subtracting from his the total a mount of maintenanc e he would eventua lly pay if both pa rties lived throug h J uly

2013, $104,400. 3Notice of Setting sent by cer tified mail to his Pack and Mail box .” Geor g e did not further elabor ate on the fa ctual basis for

his moti on, nor did he ve rify his assertions or attac h evidenc e. Subsequently , on J uly 23—the forty -sec ond day afte r the divorce decr ee was signe d—Geor g e filed a “Motion to Supplement Motion to Set J udg ment Aside and for New Trial” that did not add further fac tual alleg ations, but attache d an aff idavit he had prepa

red. In his aff

idavit, Geor g e aver

red that he had signe d his waiver of service “base d on the repr esentations of [R oberta ],” that he h ad “b el i eved that [R oberta ] was not g oing to pursue the matter,” and that “the last information I [had] rec eived was a notice from the Court that the case was g oing to be dismiss ed.” Howeve r, he acknow ledg ed that the Pack ‘n’ Mail employ ees had rec eived the notice of hear ing on J une 7, but urg ed that the employ ees “did not g ive me notice that I had rec eived a cer tified letter until about J uly

7, 2010.” There afte r, on August 9, Geor g e filed a “F irst Amended Motion to Set J udg ment Aside and for New Trial.” This motion was near ly identical to the original ex cept that it attache d

a co p y of the J une 4 hear ing notice, Geor g e’s aff idavit, and an aff

idavit from a Pack ‘n’ Mail employ ee indicating that the business had recei v ed an d held the cer tified letter for Geor g e “so he could sign for it,” that the staff had not “notified” him of the letter until J uly 7, but that Geor g e also “did not see his name posted on our board as having mail that require d a signature.” The amende d motion also included a new fac tual alleg ation that “[t] he final decr ee rende red on or about J une 11, 2 0 1 0 was not as agree d by the parties,” althoug h Geor g e did not verify or otherwise supp o rt t h e alleg ation with evidence

.

4Geor g e’s motion was overr uled by operation of law on August 25, 2010. See Tex. R. Civ. P. 329b(c)

. He appea ls, contending in a s i n gl e i s sue that the district court abused its 3 discretion in overr

uling his motion wi t h o u t a hear ing beca use “evide nce attache d to the motion for new trial unequivoca lly establishes” eac h fac tor require d to obta in a new trial under Craddock, 133 S.W .2d at 126.

I n g ener al, trial courts have broad discretion in ruling on motions for new trial. Limestone Constr., Inc. v. Summit Commercial Indus. Prop s ., Inc. , 143 S.W .3d 538, 542 (Tex. App.—Austin 2004, no pet.). We revie w a trial court’s denial of a motion for new trial for an abuse of that discretion. Clif f v. Huggins , 724 S.W .2d 778, 778-79 (Tex. 1987); Limestone Constr., Inc. , 143 S.W .3d at 542. A trial co u rt ab u s es i t s discretion if it acts without ref ere nce to g uiding leg al principles, Cire v. Cummings , 134 S.W .3d 835, 838 (Tex. 2004) , or if it incor rec tly analy zes or applies the la

w, In re DuP ont de Nemours &Co. , 136 S.W .3d 218, 223 (Tex. 2004). Under Craddoc k an d its prog eny , a trial court abuses its discretion in ref using to set aside a defa

ult judgme nt (including a post -answe r default) and gra nt a new tr ial wher e (1) the 4 failure of the defe ndant to appea r at trial was not intentional or the result of conscious indiffer ence , but due to a mistake or an acc ident; (2) the motion for a new trial sets up a meritori o u s d ef en se; and (3) g ranting the motion for new trial will occas i o n n o u n d ue delay or otherwise injure the

Geor g e states in his brief that the district court denied his motion by email on Aug ust 18, 3 2010, but the rec ord contains neither this email nor any signe d order

. I n any event, it is undisputed that Geor g e’s motion was ove rruled.

Emphasizing the lang uag e in Geor g e’s waiver of service , Roberta su gges t s that the 4 judgme nt was t ec h n i cally not a defa ult judgme nt but a judgme nt nihil dicit , but ultimately ag ree s that the Craddock standard g overns in e ither case . See E vans v. W oodward , 669 S.W .2d 154, 155 (Tex. App.—Dallas 1984, no wr it). 5p ar t y taking the default judgme nt. Clif f , 724 S.W .2d at 779; Ivy v. C arrell , 407 S.W .2 d 2 1 2 , 2 1 4 (Tex. 1966); see Craddock, 133 S.W .2d at 12 6

. Fu rt h ermore , a defe ndant who has appea red is entitled to notice of a trial setting as a matter of due proce ss. See LBL Oil Co. v. International Power Servs., Inc. , 777 S.W .2d 390, 390-91 (Tex. 1989). A party who has been denied due proce ss throug h lack of notic e o f a trial setting satisfies the first Craddock fac tor (as one cannot be consciously indiffer ent to a trial of which one is unawa re) , and, in such instances, the supreme cou rt has also dispen s ed wi t h the second (meritorious defe nse) fac tor for constitutional rea sons. Mathis

v. Lockwood , 166 S. W

. 3 d 7 43, 744 (Tex. 2005); Smith v. Holmes , 53 S.W .3d 815, 817 (Tex. App.—Austin 2001, no pet.). Fur ther, this Court has held that a defe ndant who can establish l ack of notice of a trial setting also need not establish the t hird Craddock fac tor, lack of prejudice
to the plaintiff. Smith , 53 S.W .3d at 818; accord In re Marriage of Lisa Ann Runberg , 159 S.W .3d 194, 200 (Tex. App.—Amarillo 2005, no pet.); In re Marriage of B renda May Parker , 20 S.W .3d 812, 817-18 (Tex. App.—Texarkana 2000, no pet. ). Geor g e’s arguments on appea l focus on this first eleme nt, whether

he re ceive d notice of the hear ing pr ece ding e ntry of the divorc e dec ree . Roberta prese nted evidenc e—in the form of a cer tificate of service and cer

tified mail
return rec eipt—ref

lecting that she proper ly ad d resse d and mailed Geor g e notice of the hear ing. When notice of a hear ing proper ly addre ssed and postag e prepa id is mailed, rule of civil proce dure 21a sets up a presumption that the notice was duly rec eived by the addre ssee. Clif f , 724 S.W .2d
at 780; see Tex. R. Civ. P. 21a. This presumption may be rebutted by an offe r of proof of nonrec eipt. Clif f , 724 S.W .2d at 780. There fore , in order to rebut the presumption and satisfy the first element of Craddock, Geor g e h ad t h e burden of prese nting in his motion fac ts (1) that, if taken as true,

6would be leg ally sufficie nt to establish lack o f notice, and (2) that are supported by aff idavits or

o t her competent evidenc e. See id. at 780 (pre sumption vanishes when evidenc e of no n re ce i p t i s introduced) ; Limestone Constr., Inc. , 143 S.W .3d at 545 (same)

. Among other arguments, Roberta disputes that Geor g e asser ted fac ts leg ally sufficie nt to establish a lack of notice in either his orig inal motion, supplement, or amende d motion. Fur ther, emphasizing that Geor g e’s orig inal motion was entirely lacking in evidentiar y support, Roberta urg es that Geor g e’s supplemental and amende d motions wer e untimely and that the district court would not have abused its d i s cr et i o n i n wholly ignor ing those subsequent filings and allowing the motion to be overr uled by operation of law. The latter c ontention is dispos itive. SeeTex. R. App. P . 47.1.

Be cause the fi n al d ec re e was signe d on J une 11, 2010, Geor g e had until J uly 11, 2010, to timely file his motion to set aside t he judgme nt and for new trial. See Tex. R. Civ. P. 329b(a) (“motion for new t rial, i f any , shall be filed within thirty day s afte r the judg ment . . . is signe d”), (g ) (same timetable applies for motions to modify judgme nt). Geor g e’s orig inal motion, filed on J uly 9, 2010, was therefor e ti mely . Howeve r, eve n assuming the alleg ations contained in this orig inal motion would be leg ally sufficie nt to establish lack of notice, the absenc e of supporting evidenc e is fata l. See W

iseman v. Levinthal , 821 S.W .2d 439, 442 (Tex. App.—Houston [1st Dist.] 1991, no writ) (citing Ivy , 407 S.W .2d at 214) (motion for new trial to set aside a defa ult judg ment must be supported by aff

idavits or other competent evidenc e). Wit hout supporting evidenc e, Geor g e has not overc ome the presumption that he rec eived notice of the hear ing. See Smith v. Mike Carlson Motor Co. , 918 S.W .2d 669, 672 (Tex. App.—For t Worth 1996, no writ) (presumption of ser vice

7not rebutted wher e defe ndant challen ged s er v i ce with unsupported motion and no fac ts in rec ord

showed lac k of notice)

.

Nor can Geor g e rely on the aff idavits submitt ed with his supplemental and amende d motions to cure the defe ct in his orig inal motion. Geor g e did not file his supplemental motion until J uly 23, twelve day s afte r the thirty -day deadline. See Tex. R. Civ. P. 329b(a) , (b), (g ). Be cause the supplement was untimely , the district court would not have abused its discretion in ignor ing it. See W irtz v. Massachusetts Mut. Life Ins. Co. , 898 S.W .2d 414, 420 n.2 (Tex. App.—Amar illo 1995,

no writ) (supplemental new trial motion filed more than 30 day s afte r judgme nt is a nullity ); Rev iea

v. Marine Drilling Co. , 800 S.W .2d 252, 258 (Tex. App.—Corpus Christi 1990, wr i t d enied) (applying 329b(b) to bar supplemental motion for new trial filed more than 30 day s afte r judgme nt signe d); Voth v. Felderhoff , 768 S.W .2d 403, 412 (Tex. App.—For t Wo rt h 1 9 8 9 , writ denied) (holding t h at Ru le 329b(b) applied to supplemental m otions); Equinox Enters., Inc. v. Associated Me d i a Inc. , 730 S.W .2d 872, 875 (Tex. App.—Dallas 1987, no writ) (holding that Rule 329b(b) applied to supplemental motions such that supplemental af fi d avits and exhibi ts could not be considere d by trial court); see also In re Brookshire Groce ry Co. , 250 S.W .3d 66, 71 n.8 (Tex. 2008) (par ty has rig ht to revise motion befor e court rules and within thirty day s of judgme nt). The same is
true of Geor g e’s amende d motion, filed on Aug ust 9. See Tex. R. Civ. P. 329b(b); Moritz v. Preiss , 121 S.W .3d 715, 720 (Tex. 2003) (“a mended motion for new t ri al filed more than thirty day s af ter the trial court signs a final judgme nt is untimely ”). In sum, we ag ree with Roberta th at o n l y Geor g e’s initial motion was timely , and the court did not have to consider the contents of the untimely motions. See Kalteyer v. Sneed, 837 S.W .2d 848, 851 (Tex. App.—Austin 1992, no writ)

8(if trial c ourt ig nores tar dy motion, motion is ineffe ctual for any purpose, a lthough tria l court may look to moti on to decide whether to exercise plena

ry power ). Be cause Roberta raised the presumption of not i ce u n d er rule 21a and beca use no competent evidenc e supports Geor g e’s asser tion that he did not re ce i v e t h e notice of hear ing in advanc e of the hear ing, Geor g e did not meet his burden reg arding the first Craddock element. The distri ct co u rt , there fore , would not have abused its discretion in allowing Geor g e’s motion to be

overr uled by operation of law. We overrule Geor g e’s issue a nd aff irm the district court’s judg ment.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and Rose Affir med Filed: Jul y

13, 2011

9