Corey L. Roberts v. Celia Clanton Roberts ( 2015 )

Opinion issued June 2, 2015
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-15-00024-CV
———————————
COREY L. ROBERTS, Appellant
V.
CELIA CLANTON ROBERTS, Appellee
On Appeal from the County Court at Law
Orange County, Texas
Trial Court Case No. C-140473-D
MEMORANDUM OPINION
Appellant Corey L. Roberts appeals from a default divorce judgment
rendered in favor of appellee Celia Clanton Roberts. In two issues, Corey contends
that (1) the trial court erred by granting default judgment because the record does
not affirmatively show that he was served with citation in strict compliance with
the Texas Rules of Civil Procedure, and (2) the trial court abused its discretion by
naming Celia sole managing conservator of the couple’s two children because
Celia did not request such relief in her pleadings. We reverse and remand. 1
A default judgment can only be sustained on direct attack if the record
affirmatively demonstrates that the defendant was served with citation in strict
compliance with the Texas Rules of Civil Procedure. See Primate Constr., Inc. v.
Silver, 884 S.W.2d 151, 152 (Tex. 1994); Paramount Credit, Inc. v. Montgomery,
420 S.W.3d 226, 231 (Tex. App.—Houston [1st Dist.] 2013, no pet.) (“We cannot
affirm a default judgment unless it is clear from the face of the record upon whom
the attempted service of process was made, where, when, how, and in what
capacity.”). Pursuant to Rule of Civil Procedure 107(h), a default judgment may
only be obtained if the return of service has been on file with the court’s clerk for
ten days. TEX. R. CIV. P. 107(h). The lack of strict compliance with Rule 107(h)
precludes the granting of default judgment. See Midstate Envtl. Servs., LP v.
Peterson, 435 S.W.3d 287, 290–91 (Tex. App.—Waco 2014, no pet.).
In this case, the return of service filed on August 19, 2014. indicates that
Corey was served with citation on July 31, 2014. The trial court granted default
judgment in Celia’s favor on August 26, 2014—seven days after the return of
1
This appeal, originally filed in the Ninth Court of Appeals, Beaumont, Texas, was
transferred to the First Court of Appeals, Houston, Texas. See TEX. GOV’T CODE
ANN. § 73.001 (West 2013) (authorizing transfer of cases).
2
service was filed with the clerk. Thus, the record affirmatively demonstrates that
the default judgment is invalid because it was granted less than ten days after the
return of service was filed with the clerk’s office. See id.
Because the record affirmatively shows a lack of strict compliance with the
Rules of Civil Procedure, we sustain Corey’s first issue. Having sustained Corey’s
first issue, we need not consider his second issue.
Conclusion
We reverse the default judgment and remand this case for further
proceedings.
Russell Lloyd
Justice
Panel consists of Justices Keyes, Huddle, and Lloyd.
3