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Lowe v. Lowe6/18/1998
On Appeal from the 300th Family District Court Brazoria County, Texas Trial Court Cause No. 95B0118
Kerri Lowe ("Mrs. Lowe") appeals a default judgment in favor of Jerome Jason Lowe ("Mr. Lowe") in his suit affecting the parent child relationship. In the default judgment, the trial Judge granted the divorce, appointed Mr. Lowe sole managing conservator of the couple's two children, appointed Mrs. Lowe possessory conservator of the two children, set child support, and divided the marital estate. Mrs. Lowe appeals on seven points of error. We reverse and remand for a new trial.
THE CONTROVERSY
On July 15, 1996, the trial in the Lowe's divorce was scheduled to begin. At 9:00 a.m., the case was called for trial. Mr. Lowe's attorney, Lenette Terry ("Terry"), announced ready, but Mrs. Lowe's attorney, Greg Donnell ("Donnell"), announced not ready. Donnell then presented the trial court with a motion for continuance. In this motion for continuance, Donnell presented an order signed by another district judge in a case in which Donnell was the ad litem, requiring Donnell to examine and to inspect certain books and records at 10:00 a.m. on July 15, 1996. The order also contained a protective order which prohibited/protected Donnell from appearing at any and all trial settings for the period of July 15-19. The trial Judge in this case asked Donnell if he had anything else to present. When Donnell answered "no," the Judge overruled the motion for continuance and told Donnell to be back at 10:30 a.m. to start selecting a jury in the Lowe divorce case. Donnell failed to show at 10:30 a.m. Promptly at 10:35 a.m., the trial Judge began the trial in the Lowe divorce. The trial Judge made no effort to locate Donnell other than to repeatedly ask whether Donnell was present in the courtroom. The Judge proceeded with the trial without Donnell and Mrs. Lowe. After hearing evidence, the Judge entered a default judgment for Mr. Lowe, (1) giving him custody of the couple's two young children, who were 3 and 5 years old at the time of the divorce, (2) awarding him the parties' home and other properties, and (3) ordering Mrs. Lowe to pay child support.
Mrs. Lowe, although she was a party to the divorce, did not know that these events were unfolding. Her lawyer, Donnell, had told her he had already obtained a continuance and that the trial was rescheduled. In her sworn affidavit attached to her motion for new trial, Mrs. Lowe explained that when he told her about the trial date continuance, Donnell gave her a timetable of when certain events should be completed to get the case ready for trial. The document contained things such as amending the original petition, amending answers to discovery requests, drafting a motion for contempt, preparing an inventory and appraisement, preparing witnesses for trial, and preparing the jury charge (which was dated "08-12/08-16"). Mrs. Lowe attached the document, prepared by Donnell on July 9, 1996, to her motion for new trial. The timetable stretched the discovery and preparation process from July 12, 1996 to August 16, 1996. See Appendix. Mrs. Lowe stated that if she had known that the trial was set for July 15, 1996, she would have attended court even without her attorney. But, she simply did not know about it. As it was, the only events listed for July 15 on the timetable she had was a review of amended discovery answers, a reminder to draft a motion for contempt, and the preparation of the inventory and appraisement.
After the motion for new trial, the Judge made the following findings of fact that have not been challenged on appeal:
3. The Court finds that Gregory Donnell, the attorney of record for respondent, was present an
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