Stanley C. Thorne v. Sharon D. Thorne

Opinion issued November 6, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00880-CV STANLEY CHARLES THORNE, Appellant V. SHARON DAWN HANSEN F/K/A SHARON DAWN THORNE, Appellee On Appeal from the 312th District Court Harris County, Texas Trial Court Cause No. 01-38235 MEMORANDUM OPINION The trial court rendered default judgment in a divorce proceeding between appellant, Stanley Charles Thorne, and appellee, Sharon Dawn Hansen. We determine whether the trial court abused its discretion in proceeding to trial and granting a default judgment on the divorce decree prior to April 15, 2002, the original trial date. We affirm. Background After marrying and having three children with Thorne, Hansen sued Thorne for divorce on July 30, 2001. On December 7, 2001, the trial court set a trial date of April 15, 2002 for the proceeding. Thorne was then notified of the suit by service of citation on December 14, 2001, but failed to file an answer. The trial court held an evidentiary hearing on Hansen’s petition for divorce on February 8, 2002, which was two months before the scheduled trial date. At the ex parte hearing, the trial court rendered default judgment and signed a divorce decree. Thorne was not notified of the hearing and was not present. To prevail in this restricted appeal, Thorne must establish that (1) the notice of appeal was filed within six months of the date of judgment; (2) he was a party to the suit; (3) he did not participate at trial; and (4) the errors of which he complains are apparent from the face of the record. Tex. R. App. P. 30; Hercules Concrete Pumping Serv., Inc. v. Bencon Management & Gen. Contracting Corp., 62 S.W.3d 308, 309 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). Thorne meets the first three criteria, so we must determine only whether there is error on the face of the record. We may consider all of the papers on file, as well as the reporter’s record, in making our determination. DSC Finance Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991) (per curiam).Preliminary Motions Thorne has moved for leave to file an “amended and supplemented” brief, which brief this Court has received. Although the motion and amended brief should have been filed earlier, we may allow appellant to supplement or to amend his brief at any time. Tex. R. App. P. 38.7. Furthermore, Hansen does not oppose the motion; she urges that we grant it. Thorne seeks to amend his original brief by abandoning issues two through five, leaving only one issue for this Court to address. Because there are no other changes in the amended brief that would result in prejudice to Hansen, we grant Thorne’s motion for leave to file an amended brief. We need not consider any issues that an appellant abandons in his amended brief. See Granite Const. Co. v. Mendoza, 816 S.W.2d 756, 767 (Tex. App.—Dallas 1991, writ denied). Hansen has filed a motion to strike Thorne’s reply brief because he included as an appendix a letter, addressed to the trial court, that was not part of the appellate record. An appellant is permitted to file a reply brief that addresses matters contained in an appellee’s brief. Tex. R. App. P. 38.3. However, we cannot consider documents that are attached to the brief and that are not part of the record. Till v. Thomas, 10 S.W.3d 730, 734 (Tex. App.—Houston [1st Dist.] 1999, no pet.). The letter that Thorne attached as an appendix to his reply brief is not part of our record, was not file-stamped, and was apparently written several months after the trial court had signed the divorce decree. Because the letter is not part of the record, we will not consider it. See id. We will not strike Thorne’s entire reply brief, however, simply because he has included one document that is outside of the record. Therefore, we deny Hansen’s motion to strike the reply brief. Standard of Review We review the granting of a default judgment for an abuse of discretion. Zuniga v. Zuniga, 13 S.W.3d 798, 801 (Tex. App.—San Antonio, 1999, no pet.). If a court acts without reference to any guiding rules and principles or acts arbitrarily and unreasonably, then it has abused its discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In a divorce proceeding, if the respondent does not file an answer, the allegations in the petition may not be taken as confessed. Tex. Fam. Code Ann. § 6.701 (Vernon 2003). Consequently, even when the respondent fails to answer the complaint, the petitioner must adduce proof to support the material allegations contained in the petition. Considine v. Considine, 726 S.W.2d 253, 254 (Tex. App.—Austin 1987, no writ). Accordingly, a default judgment of divorce is subject to an evidentiary attack on appeal. Id. Default Judgment In his sole issue, Thorne argues that the default judgment should be set aside. Thorne contends that the trial court abused its discretion in granting Hansen a default judgment on February 8, 2002 instead of waiting until April 15, 2002, which was the original trial date listed on the court’s docket. Thorne recognizes that the trial court would normally have had the ability to grant a default judgment at any time after he failed to answer. See Tex. R. Civ. P. 247. However, citing rule of civil procedure 247, Thorne claims that, once the case was already set for trial, the date could not be moved unless both sides agreed or unless Thorne was notified of the change. See Tex. R. Civ. P. 247. Rule 239 states that “at any time after a defendant is required to answer, the plaintiff may in term time take judgment by default against such defendant if he has not previously filed an answer, and provided that the citation with the officer’s return thereon shall have been on file with the clerk for the length of time required by Rule 107.” Tex. R. Civ. P. 239. Thorne admits that this rule would have normally allowed the trial court to grant Hansen a default judgment because Thorne did not respond to the complaint within the required time limit. He contends, however, that because the case had already been set on the docket, rule 247 should control. Rule 247 requires that “[n]o cause which has been set upon the trial docket of the court shall be taken from the trial docket for the date set except by agreement of the parties or for good cause upon motion and notice to the opposing party.” Tex. R. Civ. P. 247. Rule of Civil Procedure 245, however, states: The Court may set contested cases on written request of any party, or on the court’s own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. Noncontested cases may be tried or disposed of at any time whether set or not, and may be set at any time for any other time. Tex. R. Civ. P. 245 (emphasis added). Although rule 247 makes no distinction between contested and noncontested cases, rule 245 makes it clear that noncontested cases can be disposed of at any time, even if they have been set for trial at another time. Rule 245 requires reasonable notice to the parties in contested cases, but it does not require the same notice for noncontested cases. Thorne, nonetheless, argues that “[i]t is a fundamental and self-evident truth” that the case became contested when the trial court set it for trial. However, he does not cite any authority that supports his position. Because Thorne incorrectly asserts that his case became contested when it was set for trial, his later reliance on Rogers v. Tex. Commerce Bank-Reagan, 755 S.W.2d 83 (Tex. 1988) and Green v. McAdams, 857 S.W.2d 816 (Tex. App.—Houston [1st Dist.] 1993, no writ) is misplaced. An answer was filed in both Rogers and Green, making both cases contested. See Rogers, 755 S.W.2d at 84 (explaining that sworn answer was filed); Green, 857 S.W.2d at 817 (asserting that answer was filed). Because Thorne did not file an answer to the original complaint, this was a noncontested case. See Salazar v. Tower, 683 S.W.2d 797, 800 (Tex. App.—Corpus Christi 1984, no writ) (stating that “[a]ppellant failed to timely file an answer; therefore, the noncontested suit pending against appellant at the time of the default judgment fell within the purview of and complied with the provision of Tex. R. Civ. P. 245 concerning noncontested cases.”) Under rule 245, the trial court could dispose of the case “at any time,” including at an earlier evidentiary hearing, even though the case had been set on the docket for a later date. Accordingly, we hold that the trial court did not abuse its discretion in granting Hansen a default judgment for divorce at the February 8, 2002 ex parte hearing. Because we have overruled Thorne’s sole challenge to the divorce decree, we grant Hansen’s motion to restyle the case to reflect her new last name, and we deny Thorne’s motion for sanctions alleging that Hansen’s motion to restyle the case is frivolous. Conclusion We affirm the judgment of the trial court. Tim Taft Justice Panel consists of Justices Taft, Jennings, and Hanks.