After thirteen years of marriage and one child, Jenna Tabakman left the marital home to live with her parents because of purported mistreatment by her husband, Gary Tabakman, who sued for divorce the same month and told her of the filing. Jenna testified that she did not know what to do, was scared and had no money for an attorney, and assumed the papers would be served on her in person; after months of unsuccessful service attempts the trial court authorized alternative service and the process server posted the citation, petition and order on the front door of her parents' house.¹

No answer was filed and Gary moved for default judgment; the judge orally rendered a default judgment at the hearing. Within three weeks Jenna's new attorney filed an answer and a Craddock motion for new trial, but the trial court signed the default divorce decree days later. After an evidentiary hearing the trial court denied the motion, finding a meritorious defense but conscious indifference and no showing of no injury to Gary. The Houston Fourteenth Court of Appeals affirmed, addressing only the first element (2024 WL 3419867), and the Court granted the petition and decided it per curiam without oral argument.¹

Petition for review from the Fourteenth Court of Appeals after a default divorce judgment and denial of a motion for new trial; decided per curiam without oral argument under Rule 59.1.²

Whether Jenna satisfied the three Craddock elements for a new trial after a default judgment.¹

Default judgments are greatly disfavored and any doubts are resolved against the party who secured the default, and the Craddock test requires that the failure to answer was not intentional or consciously indifferent, that the defendant sets up a meritorious defense, and that a new trial will not cause delay or injury.¹

Jenna Tabakman (Petitioner): she did not know she had been served by alternative service or receive the citation, filed an answer before the decree was signed, had a meritorious reimbursement defense and a new trial would not harm Gary.

Gary Tabakman (Respondent): her excuse was a conclusory denial of service, he told her of the suit and attempts at service, the process server properly executed service, she failed to show the separate character of the funds, and he would be harmed by delay and expense.¹

Not applicable to the Court's decision; the opinion does not recite the petition's cert-worthiness arguments.

None noted

Holding

Jenna was entitled to a new trial under Craddock, so the court of appeals' judgment is reversed and the case remanded.¹

Reasoning

Conscious indifference means the defendant knew she was sued but did not care, and some excuse, though not necessarily a good one, suffices; Jenna's belief that she would be served in person, a mistake of law that can satisfy the element, her unawareness of any service attempt, her prompt answer, and her father's account of the construction at his house and the security guard who notified of no visitors supplied one, in line with Sutherland, Milestone, and Fidelity & Guaranty on lost or unreceived citations. The court of appeals failed to distinguish awareness of a pending suit from awareness of service, since absent service mere knowledge of a suit imposes no duty to act, and alternative service is no evidence of actual notice, so Gary did not controvert her assertions. She set up a meritorious reimbursement claim for the down payment on the marital home under the lenient standard, and Gary's general financial and family strain did not show prejudice to presenting his case at a new trial.²

Disposition

Court of appeals' judgment reversed and case remanded to the trial court for a new trial.³

Vote Breakdown

Per curiam opinion.⁴