in the Interest of E.H., A.H., and E.H., Children ( 2014 )

Affirmed and Majority and Concurring Opinions filed October 23, 2014.
In The
Fourteenth Court of Appeals
NO. 14-13-00622-CV
IN THE INTEREST OF E.H., A.H., AND E.H., CHILDREN
On Appeal from the 306th District Court
Galveston County, Texas
Trial Court Cause No. 11-FD-1631
CONCURRING OPINION
The trial court, acting under the Uniform Interstate Family Support Act,
vacated the registration of an Israeli child-support judgment rendered against the
children’s father eighteen years earlier. The trial court based its ruling on the
grounds that (1) the father was not properly served with process under Israeli law
in the proceeding that led to the judgment; and (2) the father was not given notice
reasonably calculated under all the circumstances to apprise him of the pendency
of the Israeli proceeding and to afford him an opportunity to be heard in that
proceeding. Though neither ground is expressly listed among the statute’s
exclusive grounds for vacating such a registration, one of the enumerated statutory
grounds encompasses each of the grounds found by the trial court. Because the
evidence is sufficient to support the trial court’s order based upon the latter ground
regarding notice and opportunity to be heard, this court should affirm the trial
court’s order based on this ground.
The Uniform Interstate Family Support Act’s Exclusive Grounds for
Contesting the Validity and Enforcement of Another Jurisdiction’s Child-
Support Judgment and for Vacating Registration of the Child-Support
Judgment
Appellant Shlomo Hamo is the father of three children. In June 2011, under
the Uniform Interstate Family Support Act (hereinafter the “Uniform Act”), the
Office of the Attorney General of Texas (hereinafter the “Attorney General”)
registered and sought to enforce in Texas a 1993 Israeli judgment ordering him to
pay child support to the children’s mother, Sarah Hamo. 1 After receiving notice of
the registration of the Israeli judgment (hereinafter the “Judgment”) in Texas,
Shlomo timely contested the validity and enforcement of the Judgment in Texas
and sought to vacate the registration of the Judgment.2 Under the Uniform Act, a
party contesting the validity or enforcement of a registered judgment or seeking to
1
See Tex. Fam. Code Ann. § 159.601, et seq. (West 2014). To enforce a foreign-country
judgment in Texas, a judgment creditor may (1) file a common-law action to enforce the
judgment or (2) comply with an applicable statute that provides for enforcement of a foreign-
country judgment in Texas. See Tex. Fam. Code Ann. § 159.104 (West 2014); Don Docksteader
Motors, Ltd v. Patal Enterprises, Ltd., 794 S.W.2d 760, 760–61 (Tex. 1990). Title 28, section
1738B of the United States Code and Chapter 35 of the Texas Civil Practice and Remedies Code
do not apply to foreign-country judgments. See 28 U.S.C. §1738B(b); Tex. Civ. Prac. & Rem.
Code Ann. § 35.001 (West 2014). Chapter 36 of the Texas Civil Practice and Remedies Code
applies to certain foreign-country judgments but does not apply to foreign-country child-support
judgments like the judgment at issue in the case under review. See Tex. Civ. Prac. & Rem. Code
Ann. § 36.001(2) (West 2014). The Uniform Act provides a procedure for the registration,
enforcement, and modification of child-support orders rendered by other American states or by
foreign countries. See Tex. Fam. Code Ann. §§ 159.102(23) (West 2014), 159.601, et seq.
2
See Tex. Fam. Code Ann. §§ 159.606, 159.607 (West 2014).
2
vacate the registration has the burden of proving one or more of the following
defenses:
(1) the issuing tribunal lacked personal jurisdiction over the
contesting party;
(2) the [judgment] was obtained by fraud;
(3) the [judgment] has been vacated, suspended, or modified;
(4) the issuing tribunal has stayed the [judgment] pending appeal;
(5) there is a defense under the law of this state to the remedy
sought;
(6) full or partial payment has been made;
(7) the statute of limitation under Section 159.604 precludes
enforcement of some or all of the alleged arrearages; or
(8) the alleged controlling order is not the controlling order. 3
These eight grounds are the only defenses listed in the Uniform Act as
potential bases for contesting the validity or enforcement of a registered judgment
or seeking to vacate the registration of the judgment.4 If, after notice and a
hearing, the contesting party does not establish one or more of them, the Texas
court in which the judgment has been registered shall issue an order confirming the
judgment. 5 Confirmation of a registered judgment precludes further contest of the
registered judgment with respect to any matter that could have been asserted at the
time of registration.6 The list of potentially available defenses does not include as
3
Id. § 159.607. This court reviews the trial court’s interpretation of applicable statutes de novo.
See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655B56 (Tex. 1989). In construing a statute,
this court’s objective is to determine and give effect to the Texas Legislature’s intent. See Nat’l
Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible, this court must
ascertain that intent from the language the Legislature used in the statute and not look to
extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory
language is unambiguous, this court is to adopt the interpretation supported by the plain meaning
of the provision’s words. St. Luke’s Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.
1997).
4
See id.
5
Id. § 159.607(c).
6
Id. § 159.608 (West 2014).
3
an expressly identified ground that the issuing tribunal lacked jurisdiction over the
subject matter. Nor does the list expressly identify as a ground that the contesting
party did not receive notice reasonably calculated under the circumstances to
apprise the contesting party of the pendency of the action and to afford that party a
meaningful opportunity to be heard. 7
Trial Court’s Reasons for Vacating the Registration of the Israeli Judgment
Shlomo contested the validity and enforcement of the Judgment in Texas
and sought to vacate registration of it on a number of grounds, including the
following: (1) Shlomo was not properly served with process under Israeli law in
the proceeding that led to the Judgment; and (2) Shlomo was not given notice
reasonably calculated under all the circumstances to apprise him of the pendency
of the Israeli proceeding and to afford him an opportunity to be heard in that
proceeding. The trial court vacated the registration of the Judgment and denied the
Attorney General’s request to register the Judgment on each of these grounds. As
noted, neither of these grounds is expressly identified in the Uniform Act’s list of
exclusive grounds for vacating registration. 8 Thus, in reviewing this order, an
issue arises as to whether either of these grounds is a proper basis upon which a
court may vacate registration of the Judgment.9
7
Compare id. § 159.607(a) (not expressly stating either of these grounds), with Tex. Civ. Prac.
& Rem. Code Ann. § 36.005(a) (providing as grounds for nonrecognition of certain foreign-
country judgments that “the foreign country court did not have jurisdiction over the subject
matter” and that “the defendant in the proceedings in the foreign country court did not receive
notice of the proceedings in sufficient time to defend”).
8
See Tex. Fam. Code Ann. §§ 159.607(a), 159.608.
9
Shlomo did not argue in the trial court or on appeal that, to the extent that the Uniform Act does
not allow him to assert either of these grounds as a basis for vacating registration of the
Judgment, the statute is unconstitutional.
4
Failure to Have the Defendant Properly Served With Process as a Proper
Basis for Vacating Registration of the Judgment Under Subsection (1) or (5)
of Texas Family Code Section 159.607
Except as expressly provided by law, Texas courts may not render judgment
against a defendant unless that defendant has been properly served with process,
waived service of process, or appeared in the lawsuit.10 If, as Shlomo asserts, he
did not appear in the Israeli lawsuit, waive service of process, or receive proper
service of process, then there would be a defense under Texas law to the remedy
granted in the Judgment and Shlomo would have a defense under Texas Family
Code section 159.607(a)(5).11
Uncontroverted evidence of Israeli law on these points indicated that Israeli
law is the same as Texas law. Therefore, if Shlomo did not appear in the Israeli
lawsuit, waive service of process, or receive proper service of process, then under
Israeli law, the Israeli court lacked personal jurisdiction over Shlomo when it
rendered the Judgment, and Shlomo would have a defense under section
159.607(a)(1).12
Though not expressly stated in Texas Family Code section 159.607(a), if
Shlomo did not appear in the Israeli lawsuit, waive service of process, or receive
10
See Tex. R. Civ. P. 124; Dodd v. Twin City Fire Ins. Co., 545 S.W.2d 766, 770 (Tex. 1977).
11
See Tex. Fam. Code Ann. § 159.607(a)(5). Unless otherwise stated, all statutory references in
this opinion are to the Texas Family Code.
12
See Tex. Fam. Code Ann. § 159.607(a)(1). In cases involving language in the Uniform
Foreign Money-Judgments Recognition Act substantially similar to the language in section
159.607(a)(1), some courts have inquired both as to whether the foreign court had personal
jurisdiction over the defendant under the foreign court’s law and whether the foreign court’s
exercise of personal jurisdiction over the defendant would have satisfied the federal-due-process,
minimum-contacts test of International Shoe Company v. Washington, 326 U.S. 310, 66 S. Ct.
154, 90 L. Ed. 95 (1945) and its progeny. See Evans Cabinet Corp. v. Kitchen Int’l, Inc., 593
F.3d 135, 142–43 & n. 10 (1st Cir. 2010). Shlomo has not asserted that the Israeli court’s
exercise of personal jurisdiction over him would violate federal due process if the International
Shoe test were applied. Therefore, that issue is not present in this appeal.
5
proper service of process, then he would have defenses under both section
159.607(a)(1) and section 159.607(a)(5).
Failure to Give the Defendant Notice Reasonably Calculated to Apprise Him
of the Pendency of the Israeli Proceeding and to Afford Him an Opportunity
to be Heard as a Proper Basis for Vacating Registration of the Judgment
Under Section 159.607(a)(5)
Federal due process requires that, in any proceeding to be accorded finality,
a defendant must receive notice reasonably calculated under the circumstances to
apprise the defendant of the pendency of the action and to afford the defendant a
meaningful opportunity to be heard (hereinafter “Reasonable Notice”). 13 If
Shlomo did not receive Reasonable Notice, the issue arises as to which, if any, of
the defenses listed in section 159.607(a) encompasses such a due-process violation.
The manner in which service of process is effected on a defendant may
result in service defects that make the service invalid and a default judgment
against that defendant subject to being set aside within a certain period of time
under state procedural law. In addition to this defective service that would prevent
the trial court from obtaining personal jurisdiction over a defendant who does not
appear or waive service, 14 constitutional due process may have been violated
because the defendant did not receive Reasonable Notice.15 Such cases involve
defective service of process, lack of personal jurisdiction, and a violation of
constitutional due process.
13
See Peralta v. Heights Med. Center, Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899, 99 L. Ed. 2d 75
(1988).
14
As noted above, there may be other exceptions expressly provided by statute under which a
court may have personal jurisdiction over a defendant without service of process, waiver of
service, or an appearance. See Tex. R. Civ. P. 124.
15
See In re E.R., 385 S.W.3d 552, 563–67 (Tex. 2012) (concluding that service of process by
publication in parental-termination suit on mother whose identity was known was both invalid
under state procedural law and violated constitutional due process).
6
Despite service defects that prevent the trial court from obtaining personal
jurisdiction over a defendant who does not appear or waive service,16 constitutional
due process may have been satisfied because the defendant received Reasonable
Notice.17 Such cases involve defective service of process and lack of personal
jurisdiction, but no violation of constitutional due process.
The manner in which service of process is effected on a defendant may be in
full compliance with state procedural law such that service is valid and a default
judgment against that defendant is not subject to being set aside based on improper
service of process. Yet, despite this compliance with the law of service of process,
and despite the trial court’s having obtained personal jurisdiction over the
defendant, constitutional due process may have been violated because the
defendant did not receive Reasonable Notice. Such cases involve a violation of
constitutional due process without any defects in service of process or lack of
personal jurisdiction.18 Thus, the touchstone of this due-process requirement is
16
As noted above, there may be other exceptions expressly provided by statute under which a
court may have personal jurisdiction over a defendant without service of process, waiver of
service, or an appearance. See Tex. R. Civ. P. 124.
17
See PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271–74 (Tex. 2012) (concluding that
defendant could not collaterally attack default judgment because, even if there were defects in
the service of process under state procedural law, none of these alleged defects involved a failure
to receive Reasonable Notice that would violate constitutional due process).
18
The absence of a complete one-to-one correspondence between the existence of personal
jurisdiction and a defendant’s receipt of Reasonable Notice is also reflected in other contexts.
For example, constitutional due process may be violated by a failure to give notice and an
opportunity to be heard to interested parties in quasi in rem or in rem proceedings, as well as in
proceedings in which the claimant seeks relief against the defendants in personam. See U.S. v.
James Daniel Good Real Property, 510 U.S. 43, 48–57, 114 S. Ct. 498–503, 126 L.Ed.2d (1993).
In addition, if a defendant has appeared in a lawsuit, and thus the trial court has personal
jurisdiction over that defendant, the rendition of a judgment against that defendant without the
defendant having received notice of the trial setting violates the defendant’s due process right to
reasonable notice and a meaningful opportunity to be heard. See In re K.M.L., No. 12-0728,
2014 WL 4252270, at *14 (Tex. Aug. 29, 2014). Nonetheless, that due-process violation does
not deprive the trial court of personal jurisdiction over the defendant who did not receive notice
of the trial setting. See id.
7
Reasonable Notice rather than personal jurisdiction, although in many cases each
may be present or absent.19
If Shlomo did not receive Reasonable Notice, there is a defense under Texas
law to the remedy in the Judgment because under both the Due Process Clause of
the Fourteenth Amendment to the United States Constitution and under the due
course of law provision of the Texas Constitution, the failure to receive Reasonable
Notice is a constitutional violation that prevents enforcement of the relief awarded
in the Judgment. 20 Therefore, if Shlomo did not receive Reasonable Notice, he
would have a defense under section 159.607(a)(5).21
Sufficiency of the Evidence to Support the Trial Court’s Findings
The record contains sufficient evidence to support the trial court’s findings
that Shlomo did not receive Reasonable Notice and that his due-process rights
were violated. Therefore, this court may affirm the trial court’s order without
addressing whether the evidence is sufficient to support the trial court’s findings
regarding service of process under Israeli law.
19
Texas jurisprudence is still developing as to the circumstances under which a defendant may
collaterally attack a default judgment based on issues regarding service of process or Reasonable
Notice. The Supreme Court of Texas has stated that such a collateral attack is available if there
was “a complete failure or lack of service” that violates due process. See PNS Stores, Inc., 379
S.W.3d at 274; In re E.R., 385 S.W.3d at 566. Thus, this kind of collateral attack appears to be
available when the defendant shows a violation of constitutional due process based on failure to
receive Reasonable Notice, rather than when service of process is only defective, depriving the
trial court of personal jurisdiction.
20
See Tex. Fam. Code Ann. §§ 159.607(a)(5); In re E.R., 385 S.W.3d at 563–67 & n.25.
21
See Tex. Fam. Code Ann. § 159.607(a)(5); Office of the Attorney General v. Buhrle, 210
S.W.3d 714 (Tex. App.—Corpus Christi 2006, pet. denied) (concluding that argument that order
was too vague to be enforced was a defense to the remedy sought under section 159,607(a)(5)).
For this reason, the court need not address whether this ground may properly be asserted under
section 159.607(a)(1).
8
Conclusion
Though lack of proper service is not expressly identified in the list of
grounds set forth in section 159.607(a), if Shlomo did not appear in the Israeli
lawsuit, waive service of process, or receive proper service of process, then he
would have defenses both under section 159.607(a)(1) and under section
159.607(a)(5). Likewise, though lack of Reasonable Notice is not expressly stated
in section 159.607(a), if Shlomo did not receive Reasonable Notice, then he would
have a defense under section 159.607(a)(5). Because the record contains sufficient
evidence to support the trial court’s findings that Shlomo did not receive
Reasonable Notice and that his due-process rights were violated, this court may
affirm the trial court’s order based on this ground, without addressing whether the
evidence is sufficient to support the trial court’s findings regarding service of
process under Israeli law.
/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Jamison and Wise. (Wise, J.,
majority).
9