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Click here for the full text of this decision FACTS:Maria and Daniel Martinez married in May 1999. After initially leaving the couple’s three children in Daniel’s care while she attended chiropractic school in Iowa, Maria eventually returned to take the children back with her to Iowa. She suspected Daniel of abusing one of the children. She sought a protective order in Iowa and attempted to file for divorce in Iowa in April 2003, but she did not meet the residency requirements. Meanwhile, Daniel filed for divorce in Texas in May 2003. A Fort Bend trial court entered a default judgment for Daniel and awarded him joint managing conservatorship, as well as the right to determine the children’s primary domicile. On appeal, Maria argues that her failure to appear in the Texas case was the result of incorrect advice from her Texas attorney. She also argues that the decree violates Family Code 153.004. HOLDING:Affirmed. The court analyzes the entry of the default judgment under the test articulated in Craddock v. Sunshine Bus Lines, Inc., 133 S.W.2d 124 (Tex. 1939). Under the Craddock test, a default judgment should be set aside and a new trial ordered in any case where: 1. the failure of the defendant to answer before judgment was not intentional or the result of conscious indifference on his part, but due to a mistake or accident; provided the motion for new trial 2. sets up a meritorious defense and 3. is filed at a time when the granting thereof will occasion no delay or otherwise work an injury to the plaintiff. The court notes that while other appellate courts have applied the Craddock test suits affecting the parent-child relationship, this court has been uncomfortable doing so. Nonetheless, the court finds it is bound to apply Craddock, even to SAPCR cases, “albeit liberally.” Turning to apply the Craddock test, the court finds that, as to the first prong, the evidence presented to the trial court raises an issue of fact as to whether Maria’s conduct in failing to answer Daniel’s petition was intentional or consciously indifferent. Maria says her lawyer, Bruce Zivley, said that she had not been properly served, so no answer was due, while Daniel says Maria’s failure was due to her own negligence. Daniel presented evidence that his own attorney had hand-delivered the petition to Maria and watched her read it. The court finds that the trial court could have reasonably concluded that the cause of Maria’s failure was her own negligence. The court then rules that Maria waived her right to challenge any possible violation of 153.004. OPINION:Hedges, C.J.; Hedges, Fowler and Seymore, JJ. CONCURRENCE:Fowler, J. The concurrance agrees with the ruling but writes separately to urge the Supreme Court to discard the Craddock rule and adopt a new rule for SAPCR suits.

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