Motion to Modify

On Behalf of | Aug 25, 2010 | Divorce |

Mother and father were divorced in January 2005 and designated as joint managing conservators of their child.  In July 2005 father filed a motion to modify seeking sole managing conservatorship.  Motion filed an answer and counter-petition.  Further, mother filed a jury demand.  The trial court ordered mental examinations of mother and child.  Mother refused to cooperate.

After repeated requests to compel the examinations and orders requiring them, all of which mother refused, the trial court struck mother’s answer and counter petition as sanctions and entered a default judgment appointing father as sole managing conservatorship.
On appeal, mother argues that even in the face of the sanctions, she was still entitled to a jury trial because the trial court did not strike her jury demand and father was nevertheless required to prove the elements of his modification case.  The court of appeals held that a court must always make a best interest determination even in the absence of contest from an opposing party and that in a child custody case, a default may not be granted on the pleadings alone but the moving party must go forward to supply evidence in support of their requested relief.