Richard Wayne Sanders v. Catherine Michelle Bumgardner ( 1991 )

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN









NO. 3-90-102-CV





RICHARD WAYNE SANDERS,

APPELLANT

vs.





CATHERINE MICHELLE BUMGARDNER,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 471,274, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

Appellant, Richard Wayne Sanders, by writ of error seeks review of a default judgment rendered in a paternity suit. Appellee, Catherine Michelle Bumgardner, filed her original petition before the birth of her daughter, alleging that appellant was the child's biological father. Her suit sought to establish a parent-child relationship between appellant and the child. She further sought appointment as the child's managing conservator, as well as orders for support of the child, for payment of health care expenses, and for attorney's fees. Appellant did not answer the suit and did not participate in the trial. By its final judgment, the trial court decreed that appellant was the child's father and ordered him to pay child support in the amount of $10,000 per month, as well as health care insurance, uninsured medical expenses, attorney's fees, and costs. Appellant argues that the trial court erred in rendering a default judgment because, due to defective service, it never acquired in personam jurisdiction over him. He further asserts that the evidence is either legally or factually insufficient to support the amount of child support ordered. We will affirm the judgment of the trial court.

Service was not Defective

In several points of error, appellant complains that the trial court erred in rendering a default judgment because it lacked in personam jurisdiction over him. Appellant complains that the service on him was defective because he was served with process by a person other than the person authorized to do so by the trial court.

Appellant lives in the State of Virginia. Under the Texas Rules of Civil Procedure, citation may be served on a nonresident by any disinterested person authorized to make oath of the fact. Tex. R. Civ. P. Ann. 108 (1979) (Rule 108). ⁽¹⁾ No court authorization is required under the rules. Nevertheless, upon appellee's request, the trial court authorized "Doug Cramarty" to execute service on appellant. A review of the record reveals that the affidavit of the person requesting authorization as a private process server, the original return, and the amended return all appear to bear the same signature of either "D. Cromarty" or "D. Cramarty." Appellant complains that because of the variance, there is a lack of jurisdiction apparent on the face of the record that vitiates the trial court's default judgment and entitles him to a new trial. See McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex. 1965).

The Family Code states that, in suits affecting the parent-child relationship, citation shall be issued and served as in other civil cases. Tex. Fam. Code Ann. § 11.09(c) (1986). Rule 103 states that citation may be served anywhere by (1) any sheriff or constable or other person authorized by law or (2) by any person authorized by law or by written order of the court. Rule 106(a) provides the methods whereby those authorized by Rule 103 may serve citation, while Rule 106(b) provides the method for obtaining alternate service requiring court authorization. Rule 107 directs the proper manner for executing the return of service. Finally, Rule 108 states the proper means for obtaining service over a nonresident, and states that the citation may be served by "any disinterested person competent to make oath of the fact in the manner as provided in Rule 106." Appellant does not dispute that, in the absence of any court order, Rule 108 controls the manner of serving nonresidents.

Here, pursuant to Rule 103, the trial court signed an order authorizing "Doug Cramarty" to act as a private server of process. The trial court did not prohibit service by anyone otherwise qualified by law, nor did it order any special manner of service. Appellant's complaint assumes that only the person authorized by the court order could execute service upon him. Even though no order was required, appellant argues that, because an order was signed, it must be complied with in every respect. We disagree with appellant; the order authorizing a private server did not disqualify anyone otherwise qualified under Rule 103 and Rule 108.

Appellant refers us to several cases in which appellate courts overturned default judgments because the pleadings, citation, return, or judgment misspelled or misidentified the defendant, not the server. See, e.g., Uvalde Country Club v. Martin Linen Supply Co., Inc., 690 S.W.2d 884 (Tex. 1985); De La Fuente v. Castillo, 740 S.W.2d 113 (Tex. App. 1987, no writ). The cases appellant cites are distinguishable. Unlike the present cause, these cases raise questions of whether it is just to impose a judgment against a person who was not served or against a person who was served, but not named in the complaint.

Similarly, we can distinguish this cause from cases involving publication or some other form of special or substituted service ordered by the court. See Rules 106(b), 109, and 109a; Mega v. Anglo Iron & Metal Co., 601 S.W.2d 501 (Tex. Civ. App. 1980, no writ); Cates v. Pon, 663 S.W.2d 99 (Tex. App. 1983, writ ref'd n.r.e.). In Mega, a default judgment was reversed when a Rule 106 order for substituted service was procured that authorized "A. R. 'Tony' Martinez," to serve citation because the return was signed by "A. R. Martinez, Jr." In Cates, the judgment was reversed when substituted service was authorized pursuant to Rule 106, to be performed by "Leonard Green," but the return was signed by "Lindsey E. Siriko." In both Mega and Cates, the court's order was necessary to obtain substituted service under Rule 106, and the record showed that the person executing service was not the person authorized by the court. In the present cause, however, service could be perfected without court order by anyone shown to be competent.

Appellant recognizes that a slight misspelling or slight discrepancy in the name may not require reversal of the judgment. He urges that "Doug Cramarty" is an entirely different name from "D. Cramarty" or "D. Cromarty," which difference establishes that an unauthorized person served process, making that service and the return of citation fatally defective. We are not persuaded that a material discrepancy exits in these names. Even if appellant is correct that the variance in name is material, however, we hold that the service was valid because the record reflects that the server was competent under Rule 108.

Of course, the record supporting a default judgment must show strict compliance with the rules governing service of process. McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). There is no presumption in favor of valid issuance, service, or return of citation when a default judgment is directly attacked. Cates, 663 S.W.2d at 102; McKanna, 388 S.W.2d at 929. Failure to show strict compliance with the rules of civil procedure renders the attempted service of process invalid. Higginbotham v. General Life & Accident Ins. Co., 796 S.W.2d 695, 697 (Tex. 1990); Uvalde Country Club, 690 S.W.2d at 885.

The amended return in the present cause complies with the requirements of Rule 108. It reads:

CAME TO HAND on the 2nd day of October, 1989, at 11:00 a.m. executed at 14536 Creek Branch Court, Centerville, within the County of Fairfax, State of Virginia, at 7:45 o'clock p.m. on the 25th day of October, 1989, by delivering to the within named Richard Wayne Sanders, in person, a true copy of the citation attached hereto together with an attached copy of the Original Petition of the Plaintiff, having first attached said copy of the such Petition to such copy of citation and endorsed on such copy of citation the date of delivery. I am a person competent to make oath and I have no interest in this suit.

The only difference between the original and the amended return is the sentence underlined above. Both the original and amended returns were signed by the process server, sworn to, and notarized. The statement that he had no interest in the suit and was competent to make oath complies with the requirements of Rule 108. See Wright v. Wentzel, 749 S.W.2d 228, 232 (Tex. App. 1988, no writ).

Appellant attacks the amended return as defective because the trial court allowed it to be filed without notice to the appellant. The trial court has the discretion to allow the amendment of proof of service:

At any time in its discretion and upon such notice and on such terms as it deems just, the court may allow any process or proof of service thereof to be amended, unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Tex. R. Civ. P. Ann. 118 (1972).

Review of a trial court's action under the abuse of discretion standard is a question of law. Jackson v. Van Winkle, 660 S.W.2d 807, 810 (Tex. 1983). The test for abuse of discretion is whether the court acted without reference to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Craddock v. Sunshine Bus Lines, 133 S.W.2d 124, 126 (Tex. 1939). Another way of stating the test is whether the act was arbitrary or unreasonable. Downer, 701 S.W.2d at 242.

There is no indication that the trial court acted arbitrarily or unreasonably. When a defendant has not asserted that the earlier return on the citation misled him, it is not an abuse of discretion for the trial court to allow an amended return to be filed or to permit filing without requiring notice of that amendment to the defendant. Bavarian Autohaus, Inc. v. Holland, 570 S.W.2d 110, 113 (Tex. Civ. App. 1978, no writ). In the present cause, appellant does not assert that the earlier return on the citation misled him. In addition, the trial court found that "the substantial rights of the Respondent . . . are not materially prejudiced by the nature or terms of this amendment." Recently, the supreme court emphasized that Rule 118 is to be given very liberal construction by holding that the trial court's order on motion for new trial, together with the rest of the record on appeal, as a whole, acts to amend the return and evidences strict compliance with a valid method of service. See Higginbotham, 796 S.W.2d at 696-97.

Appellant further urges that the amended return of citation is defective because it fails to include a sworn statement that the server of process was eighteen years or older. Rule 108 does not require such a statement, so its absence does not make this amended return defective under the rules. Further, the return of service need not show the facts set out in the statute authorizing service, if they are shown from the record as a whole. See, e.g., McKanna, 388 S.W.2d 927. In the present cause, the affidavit of the process server states that he is over eighteen, and the trial court made a specific finding in the order under Rule 103 that the process server is "more than 18 years of age."

Finally, appellant argues that the amended return of citation was invalid because a photocopy, rather than the original of the citation, was attached to the amended return. Rule 108 provides "[r]eturn of service in such cases shall be endorsed on or attached to the original notice." This provision applies, however, to the original return of citation and does not govern an amended return. Rule 118, which governs amended returns, does not require that amended returns be attached to the original citation.

Appellant's first, second, sixth, and seventh points of error are overruled.

There is no Error Apparent from the Face of the Record

Appeal by writ of error is a statutorily authorized, direct attack on a default judgment. Tex. Civ. Prac. & Rem. Code §§ 51.012, 51.013 (1986); Tex. R. App. P. Ann. 45 (Pamph. 1990). A party must meet four prerequisites to assert an appeal successfully by writ of error: (1) the petition was brought within six months after the judgment was signed; (2) the petition was made by a party to the suit; (3) the petitioning party did not participate in the trial; and (4) the error complained of is apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex. 1985).

On appeal by writ of error the reviewing court is not limited to a review of the transcript. Morales v. Dalworth Oil Co., 698 S.W.2d 772, 774 (Tex. App. 1985, writ ref'd n.r.e.). The court may test the validity of the judgment by reference to all the papers on file in the case, including the statement of facts. First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 643 (Tex. App. 1987, no writ); see also Smith v. Smith, 544 S.W.2d 121 (Tex. 1976) (where in a divorce case, there was no statement of facts, the judgment was invalid). The Family Code requires a record to be made in all suits affecting the parent-child relationship unless waived by the parties with the consent of the court. Tex. Fam. Code Ann. § 11.14(d) (1986); Rogers v. Rogers, 561 S.W.2d 172, 173 (Tex. 1978); Kisinger v. Kisinger, 748 S.W.2d 2, 5 (Tex. App. 1987, no writ).

In his third, fourth, and fifth points, appellant asserts that the evidence is legally or factually insufficient to support the amount of child support awarded and the judge's finding of paternity. He argues that the trial court erred in ordering child support payments of $10,000 per month either because there was no evidence as to the needs of the child or the net resources of the appellee, or because there was insufficient evidence to support a child support order for such an amount.

Generally, the same standards of review that govern ordinary appeals govern review of a default judgment once the other requirements of a writ of error have been met. Hawkins, 727 S.W.2d at 643. The usual presumption of the judgment's validity does not apply, however, when the appellate court reviews a default judgment by writ of error. McKanna, 388 S.W.2d at 929. When an appellant challenges both the legal and factual sufficiency of the evidence, we must first determine whether some evidence supports the jury's findings. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Texas L. Rev. 361, 369 (1960). In reviewing a "no evidence" point, the court considers only the evidence and reasonable inferences drawn from that evidence in the light most favorable to the findings, disregarding all contrary evidence and inferences. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). The court will sustain the point if it finds a complete lack of probative evidence or only a scintilla of evidence.  See Calvert, supra.

The legislature has promulgated child support guidelines to aid courts in setting child support in suits affecting the parent-child relationship, including paternity suits. Tex. Fam. Code Ann. § 14.052(a) (Supp. 1991) (the Code). The amount of support shall be determined without regard to whether the child was born in wedlock. Code § 14.05. The statute creates a rebuttable presumption that the amount of support set out in the guidelines is reasonable and is in the child's best interest. Code § 14.05(h). But, the statute directs that the court may consider the following factors along with the guidelines in determining the amount of support in a particular case:

(1) the needs of the child;

(2) the ability of the parents to contribute to the support of the child;

(3) any financial resources available for the support of the child; and

(4) the amount of possession to and access to a child.

Code § 14.052(b). See also Code § 14.054 (a nonexclusive list of relevant factors that may justify a level of child support at variance from the range recommended in the guidelines). Among other factors, the court may consider any special or extraordinary educational, healthcare or other expenses of the child or the parties. Code § 14.054(11). The Code further authorizes additional support, depending on the child's needs, when the obligor's net resources exceed $4000 monthly. Code § 14.055(c).

We reject appellant's contentions that the trial court erred in ordering child support payments of $10,000 per month either because there was no evidence as to the needs of the child or because there was no evidence as to appellee's net resources. The statement of facts contains probative evidence on both issues.

There was evidence presented as to the special needs of the child. At the time of the hearing, the child was forty-two days old and required full-time nursing case by her mother. The evidence showed that the child is being treated and studied by the SIDS Institute in Lake Jackson, Texas, as well as by her own pediatrician. She is at risk for Sudden Infant Death Syndrome (SIDS) because she is the sibling of a SIDS victim and because she has been diagnosed as having abnormally high obstructive episodes in her breathing and has had some "central apnea episodes." She has to be monitored full time by an apnea monitor; someone trained in CPR who is never more than 10 seconds away from the child, must resuscitate her when the monitor sounds an alarm. In a typical evening the alarm sounds frequently; the mother repeatedly revives her and consults with doctors and technicians over the phone.

Appellee testified that she was a social worker on leave from the Austin-Travis County Mental Health and Mental Retardation Agency and that she would lose her job and her health insurance if she could not find full-time nursing care for the child and return to work. She testified that it did not "look like" she would be able to return to work. Appellant's third and fourth points of error are overruled.

In his fifth point of error, appellant argues that there is insufficient evidence to support the order that he pay child support of $10,000 a month. When reviewing sufficiency of the evidence points, the court considers and weighs all evidence in the case to determine whether the evidence is insufficient or if the verdict is so against the great weight and preponderance of the evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715 S.W.2d 629 (Tex. 1986); King's Estate, 244 S.W.2d at 661.

Although the testimony was limited, in addition to evidence of the child's needs and appellee's lack of resources, the evidence showed that at the time appellant was a professional football player, starting wide receiver for the Washington Redskins; that he was promised a new contract following the Super Bowl; that he was seeking compensation of at least $1 million a year; and that when he went to camp that year he "held out" for a new contract and negotiated one that appellee believed met his contract request of more than $3.5 million over three years.

In its judgment, the court found that appellant had an earning capacity of at least $1 million per year, that child support should be set at $10,000.00 a month based on the needs of the child, and that the child's needs included twenty-four hour a day nursing care. The court also ordered that appellant maintain health insurance for the child and pay all medical expenses not covered by health insurance.

In support of his contention that under this record the Family Code limits the maximum award of child support to $800.00 per month, appellant cites the following provision of the Code:

In situations in which the obligor's net resources exceed $4,000 per month, the court shall presumptively apply the percentage guidelines in Subsection (b) of this section [20% for one child] to the first $4,000 of the obligor's net resources. Without further reference to the percentage recommended by these guidelines, the court may order additional amounts of child support as proven, depending on the needs of the child at the time of the order.

Code § 14.055(c) (emphasis added).

We disagree with appellant's interpretation. As discussed above, there was evidence of the special healthcare needs of the child. In addition, the court has discretion in applying the guidelines: "a Court may determine that the application of the guidelines would be unjust or inappropriate under the circumstances." Code § 14.055(a). A judgment ordering child support will not be disturbed on appeal absent a showing of a clear abuse of discretion. Carpenter v. White, 624 S.W.2d 618, 619 (Tex. App. 1981, no writ); Eggemeyer v. Eggemeyer, 535 S.W.2d 425, 427 (Tex. Civ. App. 1976), aff'd, 554 S.W.2d 137 (Tex. 1977). A trial court abuses its discretion when it acts unreasonably or arbitrarily, without reference to any guiding principles or rules. Downer, 701 S.W.2d at 241. The trial court may abuse its discretion by ordering one to pay more support than he reasonably can afford. Bacon v. Kouri, 696 S.W.2d 599 (Tex. App. 1985, no writ). The trial court's judgment will not be reversed, however, simply because the appellate court might disagree or might have set a different figure, either higher or lower. Smallwood v. Smallwood, 625 S.W.2d 75, 77 (Tex. App. 1981, no writ); Ramey v. Ramey, 425 S.W.2d 900, 901 (Tex. Civ. App. 1968, writ dism'd). Further, the amount of child support payments awarded by the judgment will not be revised merely because the reviewing court considers those payments too high or too low. Eggemeyer, 535 S.W.2d at 427.

The child support award in this case is generous, but not unprecedented, considering the father's resources. A $2,000.00 per month child support order, representing 20% of the father's monthly net resources of $10,000.00 has been upheld, partly because the mental health needs of the child prevented the mother from working full time and partly because of the father's affluent lifestyle and substantial income. Anderson v. Anderson, 770 S.W.2d 92, 96 (Tex. App. 1989, no writ). In a case decided before written guidelines were promulgated, one court of appeals observed that "the Court would be justified in requiring the parents to provide a standard of living for their children commensurate with that which they have and will continue to enjoy for themselves." Cooper v. Cooper, 513 S.W.2d 229, 234 (Tex. Civ. App. 1974, no writ).

Similarly, a $3,500.00 per month child support order (for two children) has been characterized as conservative, but for the fact that the father was also required to pay for summer camp, for all medical, dental, orthodontic, and hospital bills for the children, for medical insurance coverage, and for a term life insurance policy on his life. Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 886 (Tex. App. 1988, no writ). There was evidence that appellant in the present case earns more than four times the $220,000.00 per year reported as the income of the obligor in Eikenhorst.

In light of the evidence in the record and the factors the trial court was entitled to consider in reaching its decision, we cannot conclude that the trial court abused its discretion in ordering the child support award. The amount of child support is, of course, always subject to modification as circumstances of the child and parents may change. Appellant's fifth point of error is overruled.

In his eighth point of error, appellant argues that the trial court erred in finding him to be the father of the child because there was insufficient evidence to support the finding. He has cited no authority for this portion of his argument. A contention so inadequately presented is waived. Rayburn v. Giles, 182 S.W.2d 9 (Tex. Civ. App. 1944, writ ref'd). In default judgments, moreover, the defaulting party has admitted the facts properly pleaded and the justice of the opponent's claims. Paramount Pipe and Supply Co. v. Muhr, 749 S.W.2d 491, 496 (Tex. 1988). Thus, appellant has admitted, as a matter of law, the paternity allegation in the pleadings.

In addition, appellee testified that appellant is the father, that appellant admits that he is the father, and that he had sent her money for the child's apnea monitor. Appellant's eighth point of error is overruled.

In light of our holding, appellant's remaining point of error, regarding attorney's fees, is overruled. The judgment of the trial court is affirmed.

Marilyn Aboussie, Justice

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: June 12, 1991

[Do Not Publish]

1. All references to rules are to Texas Rules of Civil Procedure Annotated (1979 & Supp. 1991).