Houston, Texas divorce lawyer many times when I am meeting
potential new clients is when things have not gone against them in court. Depending on the facts
or how soon they have sought my help, I am often able to give them another
chance for a different outcome.
One example of where you might want a second chance would be if you had
a hearing on
Temporary Orders and you did not like the outcome. In if this is the case you might be
not be stuck if you seek the help of a
family law attorney immediately.
In Harris County, Texas and Montgomery County Texas there are both district
and associate judges in all family courts. If the case was heard by an
Associate Judge in a family law court and do not like their ruling you
can request that your case be heard again by the
district court judge. This is called a “de novo hearing.”
It is very important to note the deadline to request a de novo hearing
is extremely time limited. Texas Family Code Section 201.015(a) states
that “a party may request a
de novo hearing before the referring court by filing with the clerk of the referring court
a written request not later than the third working date after the date
the party receives notice of the substance of the associate judge’s
In essence this means you must request a
de novo hearing within three days from the time a Judge renders a Judgment.
Another important thing to be aware of is the
Associate Judge’s ruling is in full force an effect unless the district Judge changes it
after a hearing. Therefore, you must follow theAssociate Judge's ruling until a
district judge changes it.
Something to be aware of is that Trials held in
Child Support Court work much the same way if you want a new hearing. If you act quickly as
described above Judge’s Order in
Child Support Court can also be appealed to the District Judge.
Another tool that people can utilize to try and get a second bite at the
apple are “motions for new trial.” In general, after a trial a “motion for new trial”
must filed within 30 days after the date the judgment was signed. There
are some exceptions such as if the judgment is based on service by publication.
In such a circumstance then the deadline for filing a “motion for
new trial” is extended to two years.
Grounds for a Motion for New Trial
A trial court has broad discretion in granting a new trial. Texas Rules
of Civil Procedure 320 provides that a new trial may be granted:
- for good cause
- on motion
- or on the court’s own motion
Some reasons given for a court granting a new trial include, “…New
trials may be granted when the damages are manifestly too small or too
large. When it appears to the court that a new trial should be granted
on a point or points that affect only a part of the matters in controversy
and that such part is clearly separable without unfairness to the parties,
the court may grant a new trial as to that part only, provided that a
separate trial on unliquidated damages alone shall not be ordered if liability
issues are contested...”
Often times you will see “motions for new trial” brought after
a default judgment. In many of these circumstances the defendant failed
to file an answer or did not appear for trial.
If a default judgment was granted in addition to the reasons for granting
a new trial given under Texas Rules of Civil Procedure 320 there may be
other reasons to ask for a
new trial including:
- Defects in the Citation
- Defects in Service
- Defects in the Return
- Deficiencies in the Plaintiff’s Petition
- “Craddock Factors”
One of the big cases regarding asking for a new trial based on a no answer
default is Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124, 126 (Tex.1939).
Under Craddock a defendant must show that its failure to file an answer
or appear at a hearing was not intentional or the result of conscious
indifference but was due to a mistake or accident.
Counsel preparing the affidavits should do so with an eye toward each of
the Craddock factors. The affidavits should be detailed enough to satisfy
Craddock, but not so detailed that opposing counsel has the opportunity
to show inconsistencies in the testimony provided.
What do I do if I have had a
no answer default taken against me?
Here are some things you can do in the event a default judgment was taken
Texas Divorce Lawyer immediately;
Explain why the
answer was not filed timely with an affidavit from a person with knowledge explaining
that it was an unintentional mistake which caused the error of not filing an
File a Motion to
Set Aside the Default Judgment and a
Motion for a New Trial.
If you have questions regarding
divorce, it's important to speak with a
Houston Texas divorce lawyer right away to protect your rights. Our
Houston divorce lawyers are skilled at listening to your goals during this trying process and
developing a strategy to meet those goals.
Contact Law Office of Bryan Fagan by calling (281) 810-9760 or submit your contact information in our online
form. Law Office of Bryan Fagan handles
Divorce cases in Houston, TX, Spring, Cypress, Klein, Humble, Tomball, the FM1960 area, or surrounding
areas, including Harris County, Montgomery County, Liberty County, Chambers,
Galveston, Brazoria, Fort Bend County and Waller County.