As a 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 report.”
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 against you:
- Notify a 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 Answer; and
- File a Motion to Set Aside the Default Judgment and a Motion for a New Trial.
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Law Office of Bryan Fagan | Houston, Texas Divorce Lawyers
The Law Office of Bryan Fagan routinely handles matters that affect children and families. If you have questions regarding divorce, it's important to speak with one of our Houston, TX Divorce Lawyers right away to protect your rights.
Our divorce lawyers in Houston TX 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. The Law Office of Bryan Fagan handles Divorce cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County and Waller County.