"Just Throw it Away"

In the Interest of MBG and ATG
Dallas Court of Appeals, No. 05-23-00505-CV (May 2, 2024)
Justices Partida-Kipness, Nowell (opinion available here), and Smith

Kelli Hinson

You can’t always trust your soon-to-be ex-husband. The wife in this divorce case learned that the hard way when she failed to answer or appear at trial and was unhappy with the orders entered by the Court. She filed a motion for new trial, arguing she met the Craddock factors. She testified that her failure to respond was not due to conscious indifference because, after she received the divorce petition, the husband told her to “throw it away and wait to hear from his lawyer regarding mediation.” Relying on that advice, the wife failed to take any action to protect herself in the divorce proceeding. The trial court was unconvinced, however, particularly given that the wife later received an email from the husband’s lawyer saying that the divorce petition was on file and the husband did wish to move forward.

The Court of Appeals agreed with the trial court and affirmed the denial of the wife’s motion for new trial. It held that “conscious indifference” includes behavior such as a “pattern of ignoring deadlines and warnings from the opposing party” and failing “to take some action which would seem indicated to a person of reasonable sensibilities under the same or similar circumstances.”

The Court of Appeals did grant the wife some relief, however. It held that the trial court abused its discretion in awarding the husband more relief than requested in his petition. Texas is a “fair notice” state, which means that all parties are entitled to fair notice of a claim, and a trial court may not grant relief to a person who has not requested such relief in a live pleading. 

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