Maria Isabel Martinez v. Daniel Ruel Martinez--Appeal from 328th District Court of Fort Bend County

Affirmed and Majority and Concurring Opinions filed November 30, 2004

Affirmed and Majority and Concurring Opinions filed November 30, 2004.

In The

Fourteenth Court of Appeals

____________

NO. 14-03-01447-CV

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MARIA ISABEL MARTINEZ, Appellant

V.

DANIEL RUEL MARTINEZ, Appellee

On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 03-CV-129866

C O N C U R R I N G O P I N I O N

I join the majority opinion. However, I write separately because I believe the Craddock test, used by courts to determine if a default judgment should be set aside, is ill suited for resolving any issue in a suit affecting the parent-child relationship (SAPCR).

This is not the first time we have encountered this problem. We also addressed it in Lowe v. Lowe, 971 S.W.2d 720, 725 27 (Tex. App. Houston [14th Dist.] 1998, pet. denied).

There we discussed a number of reasons Craddock should not apply to a SAPCR:

1. Craddock was designed to apply to traditional civil litigation involving only two competing interests. In cases involving the parent-child relationship, three interests often are involved: the mother s, the father s, and the child s. Lowe, 971 S.W.2d at 725.

2. Craddock does not give the court the flexibility to even consider the one interest of paramount importance in a suit involving the parent-child relationship: the child s best interest. Tex. Fam. Code 153.002; Lowe, 971 S.W.2d at 725.

3. Craddock assumes an adversarial context, yet the Family Code has shed its adversarial trappings. See, e.g., Tex. Fam. Code 102.008 (stating that a petition involving the parent-child relationship is styled In the Interest of _________________, a Child ); Tex. Fam. Code 6.401 (stating that a petition to end the marital relationship is entitled In the Matter of the Marriage of and ________________ ); see also Tex. Fam. Code 153.007 (stating provision was designed to promote amicable settlements concerning conservatorship); Tex. Fam. Code 153.0071 (providing that the parents can agree to use dispute resolution procedures); Tex. Fam. Code 153.0072 (providing that the parties in a suit involving the parent-child relationship can agree to resort to collaborative law procedures); Lowe, 971 S.W.2d at 726.

4. The second prong of Craddock requires the court to determine if the defendant has a meritorious defense to the suit. That determination does not fit well in the parent-child context for, in a custody dispute, there are no true defenses. The goal of the court is to reach an outcome that is in the best interests of the child. Tex. Fam. Code 153.002; Lowe, 971 S.W.2d at 726.

These problems underscore the need for a new test. The courts of this state have already implicitly acknowledged the problem. For example, the majority mentions that some courts apply Craddock liberally when reviewing a default judgment entered in a SAPCR. See, e.g., Comanche Nation v. Fox, 128 S.W.3d 745,749 50 (Tex. App. Austin 2004, no pet.). However, for the reasons already stated, applying Craddock liberally is a very poor substitute for fashioning a new, more appropriate rule.

For all of these reasons, I urge the Texas Supreme Court to discard the Craddock rule and adopt a new rule for use in suits involving the parent-child relationship or urge the Family Bar to propose a more appropriate rule to use in this context, and I concur in the court s opinion.

/s/ Wanda McKee Fowler

Justice

Judgment rendered and Majority and Concurring Opinions filed November 30, 2004.

Panel consists of Chief Justice Hedges and Justices Fowler and Seymore. (Fowler, J. concurring).