in the Interest of L.R.M., a Child ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00503-CV
IN THE INTEREST OF L.R.M., a Child
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2015EM503110
Honorable Nick Catoe Jr., Judge Presiding 1
Opinion by: Marialyn Barnard, Justice
Sitting: Marialyn Barnard, Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
Delivered and Filed: June 27, 2018
REVERSED AND REMANDED
This is an appeal from a trial court’s no-answer default order establishing appellant father’s
(“Father”) parentage and ordering him to pay retroactive child support, child support, and medical
support. On appeal, Father contends, among other things, that service of process was defective.
We reverse the trial court’s order and remand this matter to the trial court.
BACKGROUND
In March 2015, the Office of the Attorney General of Texas (“OAG”) filed a petition to
establish the parent-child relationship. In the petition, the OAG alleged Father is the parent of
1
The Honorable Stephani Walsh is the presiding judge of the 45th Judicial District Court, Bexar County, Texas. The
order challenged in this appeal was signed by the Honorable Nick Catoe Jr., Associate Judge, Bexar County, Texas.
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L.R.M. It asked the trial court to determine Father’s parentage and order him to pay retroactive
and current child support, as well as medical support.
The OAG caused citation to be issued for the purpose of notifying Father of the pending
suit. The record shows that initial attempts at service were unsuccessful, but eventually, a deputy
with the Bexar County Sheriff’s Office completed a return of service stating he had served Father
on August 2, 2016. However, the return of service did not state the address at which service
occurred. After several resets, the trial court set the matter for trial on February 21, 2017.
On the date of the hearing, the child’s mother and an attorney from the OAG appeared;
Father failed to appear. At the hearing, the trial court stated: “I show service on [Father] August
the 2nd, 2016. He’s not filed a response or made an appearance.” The OAG then called the child’s
mother as a witness, and she testified Father was the father of L.R.M. She also provided evidence
regarding Father’s alleged income and his failure to provide child support. At the conclusion of
the hearing, and then in its February 22, 2017 written order, the trial court declared Father a parent
of L.R.M. and ordered him to pay child support arrearages, child support, and medical support.
After learning of the trial court’s order, Father timely filed a notice of restricted appeal. See TEX.
R. APP. P. 26.1(c) (stating that in restricted appeal, notice of appeal must be filed within six months
of date judgment or order is signed).
ANALYSIS
On appeal, Father raises three issues. In his first issue, Father challenges the validity of
service of process, stating the record shows “no return of citation indicating that [Father] had been
served with process.” We agree. Because we find this first issue dispositive, we need not address
Father’s second and third issues.
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Applicable Law
As the party filing a restricted appeal, Father must show: (1) appeal was perfected within
six months after the trial court signed the complained-of order; (2) he was a party to the underlying
suit; (3) he did not participate in the hearing that resulted in the complained-of order and filed
neither any timely post-judgment motions nor requests for findings of fact and conclusions of law;
and (4) error is apparent on the face of the record. See TEX. R. APP. P. 26.1(c), 30; Alexander v.
Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004). Here, only the fourth element — error
apparent on the face of the record — is in question.
The “record” for the purpose of a restricted appeal consists of all the papers before the trial
court at the time the judgment was rendered; as such, the scope of appellate review is the same as
with an ordinary appeal. See Norman Commnc’ns, v. Tex. Eastman Co., 955 S.W.2d 269, 270
(Tex. 1997) (per curiam). But the standard of appellate review is more restrictive than with an
ordinary appeal — as suggested by the “restricted appeal” moniker — in that the reviewing court
does not draw any inferences or presumptions from the record, but must look to the face of the
record itself. Alexander, 134 S.W.3d at 849–50. As the Texas Supreme Court stated, “a restricted
appeal requires error that is apparent, not error that may be inferred.” Gold v. Gold, 145 S.W.3d
212, 213 (Tex. 2004) (per curiam) (emphasis in original); see Alexander, 134 S.W.3d at 849–50.
For more than a century, the Texas Supreme Court has held that for a default judgment to
withstand direct attack — such as by restricted appeal — strict compliance with the rules governing
service of process must affirmatively appear on the face of the record. Primate Constr., Inc. v.
Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam) (citing Wilson v. Dunn, 800 S.W.2d 833,
836 (Tex. 1990); Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 886 (Tex.
1985); McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965); Flynt v. Kingsville, 125 Tex. 510,
82 S.W.2d 934 (1935); Sloan v. Batte, 46 Tex. 215, 216 (1876); Roberts v. Stockslager, 4 Tex. 307-3-
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(1849)). “There are no presumptions in favor of valid issuance, service, and return of citation in
the face of a [restricted appeal] attack on a default judgment.” Id. Moreover, the supreme court
has specifically held the return of service “is not a trivial, formulaic document.” Id. Rather, the
return of the service imports absolute verity and carries so much weight that it cannot be rebutted
by uncorroborated proof. Id. The weight given to a return of service is not diminished when the
recitations therein impeach the judgment. Id.With regard to service and return of citation, section 102.009(a)(8) of the Texas Family
Code — barring certain exceptions that are not applicable in this case — states that an alleged
father is entitled to service of citation on the filing of a petition in an original suit. See TEX. FAM.
CODE ANN. § 102.009(a)(8) (West 2014). Section 102.009(c) states citation is to be issued and
served as in other civil cases, and therefore, we must look to the Texas Rules of Civil Procedure.
See id. § 102.009(c); see also TEX. R. CIV. P. 106 (method of service), 107 (return of service).
Pursuant to Rule 107(a), after citation is executed, the officer or authorized person who
executed citation must complete a return of service. TEX. R. CIV. P. 107(a). The return must
include, among other things, the address served. Id. at R. 107(b)(6). If the record shows a defect
in the return of service, then the attempted service of process is invalid and of no effect. Rone
Eng’g Serv., Ltd. v. Culberson, 317 S.W.3d 506, 508 (Tex. App.—Dallas 2010, no pet.). Any
deviation from the rules governing service — including those governing return of service —
mandates reversal of a default judgment. Deutsch Bank Trust Co., N.A. v. Hall, 400 S.W.3d 668,
670 (Tex. App.—Texarkana 2013, pet. denied). More pointedly, an absence of valid service
deprives the trial court of personal jurisdiction over the defendant, rendering a default judgment
void. Seeley v. KCI USA, Inc., 100 S.W.3d 276, 279–80 (Tex. App.—San Antonio 2002, no pet.).
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04-17-00503-CV
Application
After reviewing the record, we hold — and the OAG concedes — the return of service in
this case is invalid under Rule 107(b)(6) because it does not include the address served. See TEX.
R. CIV. P. 107(b)(6). Rather, that section of the return is completely blank. Because the return of
service lacks the address at which Father was allegedly served with process, service is invalid and
error is apparent on the face of the record. See Alexander, 134 S.W.3d at 848; Culberson, 317
S.W.3d at 508. Given the absence of valid service, the trial court never acquired person jurisdiction
over Father, rendering the parentage order void. See Seeley, 100 S.W.3d at 279–80. Therefore,
reversal of the trial court’s default order is mandated. See Hall, 400 S.W.3d at 670.
CONCLUSION
Based on the foregoing, we sustain Father’s first issue, holding there is a facial defect in
the return of service that negates the sustainability of the no-answer default order rendered by the
trial court. Accordingly, we reverse the trial court’s order and remand this matter for further
proceedings.
Marialyn Barnard, Justice
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