Dashinau Cato v. Michelle Y. Smith-Cato ( 2023 )

Reverse and Remand and Opinion Filed May 26, 2023
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-00068-CV
DASHINAU CATO, Appellant
V.
MICHELLE Y. SMITH-CATO, Appellee
On Appeal from the 302nd Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-20-12340
MEMORANDUM OPINION
Before Justices Carlyle, Garcia, and Miskel
Opinion by Justice Miskel
Dashinau Cato, Husband, appeals the trial court’s entry of a default divorce
decree. First, Husband asserts that the default judgment was void due to a lack of
personal jurisdiction because no return of service was filed. Second, Husband argues
that the trial court failed to appoint an attorney to defend the suit on his behalf after
service by publication was requested. Third, he argues that the evidence was
insufficient to support the trial court’s division of the marital property.
We conclude that the trial court did not have personal jurisdiction over
Husband and that the record could not support a default judgment. We reverse the
trial court’s final decree of divorce and remand the case for further proceedings
consistent with this opinion.
I. Procedural Background
Michelle Smith-Cato, Wife, filed a pro se petition for divorce and an amended
petition, correcting her last name. In both her original and amended petitions for
divorce, Wife stated “I cannot find my spouse. I ask that my spouse be served by
posting or publication.”
Wife filed a motion for citation by posting, a form of publication service,
which was supported by an affidavit swearing that she had made a diligent attempt
to locate Husband but had been unable to do so. Wife’s affidavit filed with the
motion swears that “no appreciable amount of property was accumulated during our
marriage,” but it also describes a house acquired during the marriage. No return of
service was ever filed. The court did not appoint an attorney to defend the suit on
behalf of Husband.
Wife filed an “Affidavit for Prove-Up of Default Divorce Without Children,”
which states, among other things, that Wife and Husband entered into an agreement
concerning the division of their property and debts and that the agreement is fair and
equitable to both, but which does not contain any evidence about any marital
property or its value.
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On November 20, 2020, without a hearing, an associate judge signed a default
final decree of divorce.1 The judgment states that “[Husband] was not present, but
was served and has defaulted.” Nothing in the record shows that the court inquired
into the sufficiency of the diligence exercised in attempting to ascertain the
whereabouts of Husband before granting judgment. The judgment also indicates
that a statement of evidence was signed by the trial court, but nothing in the record
indicates that a statement of evidence was filed. With respect to jurisdiction, the
judgment states in part, “The Court heard evidence and finds that it has jurisdiction
over this case and the parties, that the residency and notice requirements have been
met, and the Petition for Divorce meets all legal requirements.” Among other things,
the decree awards Wife property including two cars and a house, and it does not list
any values for the property being divided.
On August 25, 2021, Husband filed a “Motion to Set Aside Default Judgment
After Service by Publication,” requesting the trial court to set aside the default
judgment and grant a new trial. He argued the trial court should grant a new trial for
several reasons, including that service was “improperly effected by publication,” the
trial court failed to appoint an attorney as required by Texas Rule of Civil Procedure
244, the trial court did not approve or sign a statement of evidence under that rule,
1
The default judgment in this case was signed during the Texas Supreme Court’s COVID-19
emergency orders, which in some circumstances authorized courts to take evidence by affidavit. Supreme
Court of Texas, Twenty-Ninth Emergency Order Regarding COVID-19 State of Disaster, Misc. Docket No.
20-9135, 629 S.W.3d 863, 864 para. 3(d) (Tex. Nov. 11, 2020). The discussion of whether a default
judgment can be supported by affidavit is outside the scope of this opinion.
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there was insufficient evidence to support the trial court’s judgment, and Wife
procured service by publication and the default judgment by fraud. Wife responded
that Husband would not provide her with his address and stated that the divorce
decree was a fair and equitable division of the property. Her response does not allege
that Husband was ever served with the suit. On November 19, 2021, the trial court
signed an order denying Husband’s motion to set aside the default judgment, and
Husband filed a notice of appeal the same day.
II. Appellate Jurisdiction
Where a judgment has been rendered on service of process by publication, the
trial court may grant a motion for new trial filed within two years after the judgment
was signed. TEX. R. CIV. P. 329(a). Husband’s motion for new trial was filed on
August 25, 2021, less than a year after the default judgment was signed. Both parties
agreed that Husband’s motion for new trial was timely under Rule 329(a), and
neither party contested appellate jurisdiction in this case.
When process has been served by publication, the relevant time periods run
from the filing of the motion for new trial. TEX. R. CIV. P. 306a(7). Husband had
90 days to file a notice of appeal after filing his motion for new trial, so his notice of
appeal was due November 23, 2021. See TEX. R. APP. P. 26.1(a). We conclude that
his notice of appeal was timely filed on November 19, 2021.
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III. Standard of Review and Applicable Law
Trial courts lack jurisdiction over a defendant who was not properly served
with process. Spanton v. Bellah, 612 S.W.3d 314, 316 (Tex. 2020). A complete
failure of service deprives a litigant of due process and a trial court of personal
jurisdiction; the resulting judgment is void and may be challenged at any time. In
re E.R., 385 S.W.3d 552, 566 (Tex. 2012). Personal jurisdiction is a question of law,
which appellate courts review de novo. Law Off. of Robert D. Wilson v. Tex.
Univest-Frisco, Ltd., 291 S.W.3d 110, 113 (Tex. App.—Dallas 2009, no pet.).
Because the motion for new trial and notice of appeal in this case were timely
filed, this is a direct attack on the default judgment. See PNS Stores, Inc. v. Rivera,
379 S.W.3d 267, 271–272 (Tex. 2012). For more than 150 years, the Texas Supreme
Court has required that strict compliance with the rules of service of citation
affirmatively appear in the record for a default judgment to withstand direct attack.
See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (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, 885 (Tex. 1985); McKanna v. Edgar, 388 S.W.2d 927,
929 (Tex. 1965); Flynt v. Kingsville, 82 S.W.2d 934, 934 (1935); Sloan v. Batte, 46
Tex. 215, 216 (1876); and Roberts v. Stockslager, 4 Tex. 307, 309 (1849)). No-
answer default judgments are disfavored and cannot stand when a defendant was not
served in “strict” compliance with applicable requirements. Spanton, 612 S.W.3d at
316. There are no presumptions in favor of valid issuance, service, or return of
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citation. Id.; Primate Constr., 884 S.W.2d at 152. The party requesting service bears
the responsibility for ensuring that service is properly accomplished and reflected in
the record. Primate Constr., 884 S.W.2d at 153.
IV. The Default Judgment Was Void Because the Court Lacked Personal
Jurisdiction Over Husband, Who Had Not Been Served
In his first issue on appeal, Husband argues that the default judgment was void
for lack of personal jurisdiction because there is no evidence that Wife served him
with citation. Although Wife pleaded for service by posting, the record does not
contain any return of service. Wife’s affidavit filed in advance of the default trial
also does not include any evidence of whether or how Husband was served. No
default trial was held, so there is no evidence in a reporter’s record regarding service.
A. Service by Publication and Posting in Divorce Cases
Section 6.409(a) of the Texas Family Code provides that “[c]itation in a suit
for dissolution of a marriage may be by publication as in other civil cases,” and
tailors the publication requirements for divorce cases. If no minor children are
involved, publication service may be completed by posting the citation at the
courthouse door for seven days. TEX. FAM. CODE § 6.409(d). Thus, in divorce cases,
service by posting is permitted as a form of publication service. Further, if the
petitioner swears that there is no minor child and no appreciable amount of property,
the court may dispense with the appointment of an attorney ad litem. TEX. FAM.
CODE § 6.409(e); cf. TEX. R. CIV. P. 244. In divorce suits where citation was by
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publication, a statement of the evidence, approved and signed by the judge, must be
filed as part of the record. TEX. FAM. CODE § 6.409(e); see also TEX. R. CIV. P. 244.
Since the Family Code provides that citation in a divorce suit may be by
publication as in other civil cases, Rule 110 clarifies that the rest of the civil rules
relating to service still apply. See TEX. FAM. CODE § 6.409(a); TEX. R. CIV. P. 110;
see also Jones v. Jones, No. 09-06-238 CV, 2007 WL 2324039, at *2 (Tex. App.—
Beaumont Aug. 16, 2007, no pet.) (mem. op.) (finding that the phrase “as in other
civil cases,” in section 6.409(a) of the Texas Family Code also requires consideration
of Rule 244); In re Marriage of Serbin, No. 07-18-00349-CV, 2020 WL 856340, at
*2 (Tex. App.—Amarillo Feb. 20, 2020, no pet.) (mem. op.) (same).
For all forms of service, the rules require:
 The officer or authorized person executing the citation must complete
a return of service. TEX. R. CIV. P. 107(a).
 The return of service must be filed with the court. TEX. R. CIV. P.
107(g).
 The court must not grant a default judgment until proof of service has
been on file with the clerk for ten days. TEX. R. CIV. P. 107(h).
Additionally, for publication service:
 The court has a duty to inquire into the sufficiency of the diligence
exercised in attempting to ascertain the residence or whereabouts of
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the defendant before granting any judgment on publication service.
TEX. R. CIV. P. 109.
 Where service has been made by publication, and no answer or
appearance has been made, the court must appoint an attorney to
defend the suit on behalf of the respondent. TEX. R. CIV. P. 244.
 A statement of the evidence, approved and signed by the judge, must
be filed as part of the record. Id.; TEX. FAM. CODE § 6.409(e).
In this case, the record does not reflect that any of these mandatory requirements
occurred.
B. The Trial Court Did Not Have Personal Jurisdiction Over Husband
Because the Record Does Not Contain Proof of Service
No one has asserted, and we do not find that the record contains any showing,
that a return of service was filed with the trial court as required by Rule 107. As the
party requesting service of process, Wife had the responsibility to ensure that a return
of service was filed with the trial court. See Primate Constr., 884 S.W.2d at 153.
The trial court was prohibited from rendering a default judgment against Husband
where a return of service had not been on file with the clerk of the court for ten days.
TEX. R. CIV. P. 107(h). Without proof of service, we cannot presume that service
was valid. See Spanton, 612 S.W.3d at 316; Primate Constr., 884 S.W.2d at 152.
When the record fails to show strict compliance with the rules of civil
procedure, the attempted service of process is invalid and of no effect. See Spanton,
612 S.W.3d at 317; Uvalde Country Club, 690 S.W.2d at 885; In re J.M.H, No. 12-
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21-00063-CV, 2022 WL 868713, at *2 (Tex. App.—Tyler March 23, 2022, no pet.)
(mem. op.) (reversing default judgment where record contained no evidence of
proper citation or return of service); Ming Zhe Inc. v. Alvarado, No. 13-19-00532-
CV, 2020 WL 6878733, at *2 (Tex. App.—Corpus Christi-Edinburg November 24,
2020, no pet.) (mem. op.) (reversing default judgment where record contained a
citation but no completed return of service).
The record does not show that Husband was served. As a result, the trial court
did not have personal jurisdiction over Husband, and the final decree of divorce is
void. The trial court acted without reference to guiding rules and principles when it
granted a default judgment against a respondent who had not been served.
Accordingly, we conclude the trial court erred when it entered the default decree of
divorce and when it denied Husband’s motion to set aside the default judgment.
Husband’s first issue is sustained. Based on our resolution of this issue, we
need not address Husband’s remaining issues.
V. Conclusion
The trial court erred when it entered a default judgment, because the trial court
lacked personal jurisdiction over Husband. We reverse the trial court’s final decree
of divorce and remand the case for further proceedings consistent with this opinion.
220068f.p05
/Emily Miskel/
EMILY MISKEL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
DASHINAU CATO, Appellant On Appeal from the 302nd Judicial
District Court, Dallas County, Texas
No. 05-22-00068-CV V. Trial Court Cause No. DF-20-12340.
Opinion delivered by Justice Miskel.
MICHELLE Y. SMITH-CATO, Justices Carlyle and Garcia
Appellee participating.
In accordance with this Court’s opinion of this date, the trial court’s final
decree of divorce is REVERSED, and this cause is REMANDED to the trial court
for further proceedings consistent with this opinion.
It is ORDERED that appellant DASHINAU CATO recover his costs of this
appeal from appellee MICHELLE Y. SMITH-CATO.
Judgment entered this 26th day of May 2023.
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