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Avoiding a Default Judgment in Divorce

Mahady v. Mahady was a 2008 case out of Fort Worth where the husband and wife were married and had 5 children.  In 2005, wife left with the children and moved to California.  Husband filed for a divorce in Texas and was eventually able to serve wife with citation.  The wife sent an answer by UPS which was received in the district clerk's mail room and stamped at 9:28 a.m. on the date her answer was due by 10:00 a.m..  The husband appeared in court and proved up the divorce by default at 10:06 a.m. that same date.

The wife filed a Motion for New Trial providing proof of her timely answer but her Motion for New Trial was denied when she failed to appear for the hearing.  Wife then filed a bill of review.  Husband filed both a traditional and no evidence Motion for Summary Judgment but later withdrew the traditional motion.  Husband's no evidence motion challenged wife's proof on three of the four elements needed to prevail on a bill of review.

Despite proof that she timely filed an answer, the trial court granted the no evidence motion and wife appealed.  The court of appeals determined that wife's answer was at least some proof that she attempted to participate in the Texas divorce proceeding and further that in the default was wrongfully obtained in the face of a timely answer.  The Motion for Summary judgment was reversed and remanded for a trial on all issues.

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