in the Interest of J.B., M.B., and E.B., Children ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00040-CV
IN THE INTEREST OF J.B., M.B.,
AND E.B., CHILDREN
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2012-70604-431
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MEMORANDUM OPINION1
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I. Introduction
In four issues, appellant A.P.B. appeals the trial court’s November 5, 2014
default judgment modifying his child support obligation, confirming child support
1
See Tex. R. App. P. 47.4.
arrearages, and awarding attorney’s fees to appellee L.M.B. We reverse the trial
court’s default judgment and remand the case for a new trial.
II. Procedural Background
The parties divorced in July 2012. Eleven months later, L.M.B. filed her
“Amended Motion To Modify Parent-Child Relationship, To Enforce Original
Order (Child Support), And Notice Of Hearing For Temporary Orders,” seeking
child support under the family code child support provisions, see generally Tex.
Fam. Code Ann. §§ 154.001–.243 (West 2014), in addition to reimbursement for
some of the children’s daycare and medical expenses under the divorce decree’s
provisions.2 L.M.B. also sought reimbursement for other costs that A.P.B. had
been allocated in the divorce decree but had not paid, and she sought attorney’s
fees, expenses, costs, and post-judgment interest. The last two pages of the
motion contained L.M.B.’s “NOTICE OF HEARING ON MOTION,” which was set
for July 24, 2013. The last page of the motion contained a certificate of
conference in which L.M.B.’s counsel certified that A.P.B. had been “contacted”
2
The divorce decree made the parties joint managing conservators of their
three children with the duty to support the children “during their respective
periods of possession” as well as to pay 50% of the children’s expenses for
daycare, education, extracurricular activities, “and all other expenses that provide
for the nurture and well being of the children, other than expenses incurred
during normal periods of possession.” The decree also provided for the parties
to share responsibility for the children’s health insurance.
2
by phone and email on June 12, 2013, to discuss acceptable times for the
hearing but that A.P.B. had not responded.3
L.M.B.’s attorney filed the motion electronically on June 26, 2013, and
citation issued on June 27, 2013. The citation sets out the cause number,
A.P.B.’s full name, and his address, “at Dallas Fire Department Station 29[,] 9830
Shadow Way[,] Dallas[,] Tx 75243 (or wherever he/she may be found),” provides
notice that if he failed to file a written answer, a default judgment could be taken
against him, and lists “Amended Motion to Modify Parent-Child Relationship, To
Enforce Original Order (Child Support), And Notice Of Hearing For Temporary
Orders” beside the heading entitled “Document.” The return of service was filed
on July 11, 2013, along with an affidavit of service, which states, in pertinent part:
On JUNE 27, 2013 P.M., at 4:30 P.M. I received a CITATION
to be delivered to [A.P.B.] at Dallas Fire Department Station 29[,]
9830 Shadow Way[,] Dallas[,] Tx 75243[.]
On June 28, 2013 at 8:30 a.m. I attempted to deliver the
documents to above address to [A.P.B.]. [H]e was not there. He got
off duty at 7:00 a.m. He will not be back until 7:[00] a.m. Sunday
morning and will get off duty at 7:00 a.m. Monday July 1st, 2013[.]
On July 1, 2013 at 5:30 a.m. I attempted to deliver the
documents to above address to [A.P.B.] and again he was not there.
The guy who answered the door said he had been sent to another
Station off of Northwest Hwy and Shiloh. That is all he would tell
3
The certificate of conference is ambiguous as to whether A.P.B. was
actually contacted and then failed or refused to respond to questions posed
about scheduling the hearing, or whether the attorney merely attempted to
contact A.P.B. by telephone and email but received no response to these
attempts.
3
me. He made one other comment, that I probably would not get
over there in time before he would be off duty again.
On July 1, 2013 I ran a search to find a Fire Station in the
Northwest Hwy and Shiloh area. I came up with Station 39 at 2850
Ruidosa Dallas, Tx. 75228. [A.P.B.] was there and I delivered the
Documents to him at 6:05 a.m[.] [Emphasis added.]
On July 24, 2013, L.M.B. obtained temporary orders for child support,
arrearages, and attorney’s fees. Although the temporary orders state that A.P.B.
appeared and announced ready, the docket entry reflects that he failed to appear
at the hearing and that the temporary orders were entered by default.4
Likewise, A.P.B. did not appear at the hearing before the entry of the
November 5, 2014 default judgment,5 which recited that A.P.B. “though served
proper notice failed to make any answer or to appear[6] and wholly defaulted.”
4
The reporter’s record of the July 24, 2013 hearing confirms that A.P.B. did
not appear at the hearing.
5
During the interim, L.M.B. had requested that A.P.B. produce documents
and disclosures. When A.P.B. failed to respond to these discovery requests,
L.M.B. filed a motion to compel discovery and for sanctions, followed by a
second motion to compel discovery and for sanctions, none of which A.P.B.
answered. On April 14, 2014, the trial court issued an order compelling
discovery and for sanctions. On June 4, 2014, L.M.B. filed a petition for
contempt regarding A.P.B.’s discovery violations. The trial court issued a writ of
capias for A.P.B. when he failed to appear at the July 25, 2014 show-cause
hearing.
6
A.P.B. apparently executed a bond on September 21, 2014 and filed it on
October 10, 2014 in response to the trial court’s July 2014 order of capias. We
note that if A.P.B.’s posting of bond amounted to an appearance in the case,
then he had a due process right to notice of the default judgment hearing. See
Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 813 (Tex. 2012) (“The
Due Process Clause of the Fourteenth Amendment requires that once a
defendant makes an appearance, that defendant is entitled to notice of the trial
4
One week later, however, on November 14, 2014, A.P.B. appeared at a
contempt hearing.7 On December 5, A.P.B. filed a motion for new trial that was
overruled by operation of law. The trial court made findings of fact and
conclusions of law on December 31, 2014. In its findings, the trial court found
that A.P.B. did not appear at the November 5, 2014 hearing; it also made various
findings about the parties’ net resources.
III. Discussion
In his first issue, A.P.B. contends that service of process of the underlying
lawsuit was insufficient to withstand his direct attack on the default judgment.
L.M.B. replies that the process server’s affidavit is sufficient to show that A.P.B.
was served.
The law abhors default judgments. Indus. Models, Inc. v. SNF, Inc., No.
02-13-00281-CV, 2014 WL 3696104, at *2 (Tex. App.—Fort Worth July 24, 2014,
setting.”). The record does not reflect whether A.P.B. was given notice of the
November 5 hearing, and the parties have not briefed whether he was entitled to
such notice. A.P.B. affirmatively states in his brief that he “did not appear before
the trial court at any time between the date [a]ppellee originally filed the current
lawsuit and entry of the Default Order.” “In a civil case, the court will accept as
true the facts stated [in an appellant’s brief] unless another party contradicts
them.” Tex. R. App. P. 38.1(g).
7
The trial court noted that A.P.B. was appearing at the November 14
hearing because, as a result of the capias warrant for failing to appear at the July
25 show cause hearing, A.P.B. had been arrested. After posting bond, he was
notified of the November 14 hearing. At the hearing, the trial court informed
A.P.B. that he was “in custody” and that “it would be a felony to leave [the
courtroom] without permission.” According to the trial court’s docket entries,
A.P.B. was ultimately found in contempt and sentenced to three days in jail on
March 20, 2015.
5
no pet.) (mem. op.). For a default judgment to withstand direct attack, strict
compliance with the rules governing service of process must affirmatively appear
on the face of the record. Id. at *3; see Primate Constr. Inc. v. Silver, 884
S.W.2d 151, 152 (Tex. 1994); see also PNS Stores, Inc. v. Rivera, 379 S.W.3d
267, 272 (Tex. 2012) (defining “direct attack” as an appeal, a motion for new trial,
or a bill of review). If the record does not show strict compliance with the rules of
civil procedure governing issuance, service, and return of citation, then the
attempted service of process is invalid, and the judgment must be reversed. 8
Indus. Models, 2014 WL 3696104, at *3.
A return of service must include, among other things, a description of what
was served. Tex. R. Civ. P. 107(b)(3). The return of service is not a trivial,
formulaic document but rather has long been considered prima facie evidence of
the facts recited therein. Primate, 884 S.W.2d at 152 (stating that the supreme
court has required strict compliance with the rules for service of citation for “well
over a century”). That is, “[t]he weight given to the return is no less when the
recitations impeach the judgment than when they support it.” Id. The rules of
civil procedure allow for liberal amendment of the return of service to show the
8
When a default judgment is attacked by a motion for new trial in the trial
court, the focus is on the critical question, “Why did the defendant not appear?”
Fid. & Guar. Ins. Co. v. Drewery Constr. Co., 186 S.W.3d 571, 573–74 (Tex.
2006). If the answer to this critical question is, “Because I didn’t get the suit
papers,” the default judgment generally must be set aside. Id. at 574. The
recitations in the return of service carry so much weight that they cannot be
rebutted by the uncorroborated proof of the party moving for the default
judgment. Primate, 884 S.W.2d at 152.
6
true facts of service. Id. at 153 (citing Tex. R. Civ. P. 118). In Primate, the
officer’s return indicated that the defendant was served with the original
petition—in which the defendant was not a named party—while the citation
indicated that a second-amended petition was attached. Id. at 152–53. In
Primate, as in this case, the return was not amended prior to issuance of the
default judgment. See id. at 153. The supreme court reversed, concluding that
proper service had not been affirmatively shown on the record. Id.
Here, the affidavit of service reflects that “the Documents” were delivered
to A.P.B. on July 1, 2013, at 6:05 a.m. at Fire Station 39, 2850 Ruidosa, Dallas,
Texas, 75228. But the affidavit does not specify what documents were delivered.
See, e.g., Shamrock Oil Co. v. Gulf Coast Natural Gas, Inc., 68 S.W.3d 737, 739
(Tex. App.—Houston [14th Dist.] 2001, pet. denied) (stating that although rule of
civil procedure 107 does not expressly require the return of service to list
documents served with the citation, “unless it does so it is impossible to tell if
there has been compliance with the service rules”).
L.M.B. argues that the affidavit was sufficient, contrasting these facts to In
re Z.J.W., 185 S.W.3d 905, 907 (Tex. App.—Tyler 2006, no pet.),9 and relying on
9
In Z.J.W., the court reversed the trial court’s default judgment establishing
paternity and setting child support when the process server wholly failed to
endorse the process with the day and hour on which he received it, preventing
the State from showing strict compliance with rule of procedure 105. 185 S.W.3d
at 906–07. The court reiterated that “strict compliance” means literal compliance
with the rules, despite the State’s argument that these were just minor details for
which substantial compliance was sufficient. Id. at 907–08. The court defined
substantial compliance as sufficient when the citation and return show with
7
Will. v. Williams, 150 S.W.3d 436 (Tex. App.—Austin 2004, pet. denied),10 to
support her argument that “the Documents” referred to in the affidavit could only
have meant the motion and citation, which contained the name of the motion.
That is, L.M.B. would require us to construe the citation, motion, and
affidavit together to infer, rather than read from the face of the affidavit, what was
served on A.P.B.11 But this goes beyond mere “trivial error.” See Shamrock, 68
S.W.3d at 739 (“[W]e believe the officer’s return must show service of the correct
pleading on the Meltons.”); cf. Ortiz v. Avante Villa at Corpus Christi, Inc., 926
reasonable certainty that the citation was served. Id. at 907. It cited examples of
substantial compliance as omitting a petitioner’s name from the citation when
there was no confusion about whether the correct respondent was actually
served; omitting an accent mark and substituting the symbol “@” for the word
“at”; and when the petition, citation, and return reflected a typo in the registered
agent’s name—the petition and citation listed him as “Philippe Petitfrere” but the
return listed him as “Philipee Petitfreere.” Id. at 907 (counting cases).
10
In Williams, the trial court granted a default judgment to a grandmother
who had filed a petition to terminate the parent-child relationship between her
daughter and her grandchild. 150 S.W.3d at 441. The court held that the record
reflected that the daughter was properly served, despite the failure of the citation
to include the grandmother’s name, because there was no confusion regarding
who filed the suit; it nonetheless reversed the default judgment after concluding
that the evidence was legally insufficient to support terminating her parental
rights. Id. at 441, 444–45, 452.
11
Although the record may reflect that A.P.B. was actually aware that
L.M.B. was seeking child support, actual notice is not a substitute in a no-answer
default situation, which requires that the face of the record show strict
compliance with the type of service used. See Indus., 2014 WL 3696104, at *3
(“Even when a defendant has received actual notice of a pending lawsuit, a
default judgment rendered upon defective service cannot stand unless the
defendant otherwise enters a general appearance before the entry of the
judgment.”).
8
S.W.2d 608, 612 (Tex. App.—Corpus Christi 1996, writ denied) (holding return of
service sufficient when it referred to the plaintiff’s original petition as “the Petition
attached” to the citation); Herbert v. Greater Gulf Coast Enters., Inc., 915 S.W.2d
866, 871 (Tex. App.—Houston [1st Dist.] 1995, no pet.) (op. on reh’g) (holding
return of service sufficient when it referred to the original petition as a complaint,
“a term clearly synonymous with petition”). To hold otherwise under these
circumstances would put this court on a slippery slope rife with danger to the due
process our procedural rules were designed to protect.12 Moreover, while the law
would have permitted L.M.B. to simply file an amended return of citation prior to
taking the default judgment, thereby clarifying for the record what documents
were served upon A.P.B., L.M.B. did not avail herself of this opportunity. See
Primate, 884 S.W.2d at 153.
Therefore, we sustain A.P.B.’s first issue. Based on our disposition of
A.P.B.’s first issue, we need not reach his remaining three issues. See Tex. R.
App. P. 47.1.
12
That is, while strict compliance does not require “obeisance to the
minutest detail,” as we pointed out in Industrial Models, cases justifying slight
deviation from procedural rules under this rationale mostly concern misnomer,
misspelling, mistaken capitalization, or similar errors and not a complete absence
of information required to determine, from the face of the record, that the proper
pleadings have been served upon the proper party and, thus, that due process
concerns have been satisfied. 2014 WL 3696104, at *5; cf. Herbert, 915 S.W.2d
at 871.
9
IV. Conclusion
Having sustained A.P.B.’s dispositive issue, we reverse the trial court’s
judgment and remand the case for a new trial.
/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and SUDDERTH, JJ.
DELIVERED: December 23, 2015
10