Opinion
No. 13-03-00299-CV
Memorandum Opinion delivered and filed July 22, 2004.
On appeal from the 357th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices, HINOJOSA and CASTILLO.
MEMORANDUM OPINION
Appellee, Raul C. Vasquez ("Raul"), sued appellant, Diana Gonzalez Vasquez ("Diana"), for divorce. The trial court granted a default divorce and awarded custody of the couple's daughter to Raul. In three issues, Diana contends the trial court's default decree cannot stand because defective service of process is apparent on the face of the record and the trial court lacked subject matter jurisdiction to make an initial child custody determination. We reverse and remand
Appellee, Raul C. Vasquez, did not file a brief.
A. Factual Background and Procedural History
Diana and Raul were married in May 1989. Their only child, Cristal Vasquez ("Cristal"), was born in September 1989. In October 2001, the couple ceased living together as husband and wife, and Diana and Cristal moved from Texas to Iowa, where they currently reside. Raul continued residing in Cameron County, Texas. In his petition for divorce, Raul asked the court to appoint him joint managing conservator of Cristal with the exclusive right to determine her primary residence. Raul attempted, several times, to serve Diana with process by certified mail and non-resident notice.
On September 6, 2002, the trial court held a "final" hearing on the petition for divorce. Raul was present at the hearing and represented by counsel. Diana was neither present in person nor represented by counsel. The trial court granted a default divorce, appointed Raul and Diana joint managing conservators of Cristal, and awarded Diana primary care and control over the residence and education of Cristal. Raul was granted visitation rights and ordered to pay Diana $155 per month for child support and to provide Cristal with medical insurance. Raul objected to the trial court's ruling and informed the court that Diana had not been given notice of the hearing. The court refused to enter any orders and reset the hearing for October 14, 2002, so that Diana could be notified of the hearing. Raul sent notice of the hearing to Diana in Iowa, via certified mail, return receipt requested.
At the October 14, 2002 hearing, Diana was again neither present in person nor represented by counsel. The trial court granted a default decree of divorce, appointed Raul and Diana joint managing conservators, and awarded Raul primary care and control over the residence and education of Cristal. Diana was granted visitation rights and ordered to pay child support in the amount of $155 per month. The trial court signed the final default decree of divorce on November 14, 2002. The default decree of divorce provides: "Respondent, DIANA G. VASQUEZ, although duly and properly cited, did not appear and wholly made default."
B. Restricted Appeal
Restricted appeals replace writ of error appeals to this Court. Tex.R.App.P. 30. The notice of appeal in a restricted appeal must be filed within six months after the judgment is signed. Tex.R.App.P. 26.1(c). Statutes relating to writ of error appeals to the courts of appeals apply equally to restricted appeals. Tex.R.App.P. 30.
A party who did not participate — either in person or through counsel — in the hearing that resulted in the judgment complained of and who did not timely file a postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c). Tex.R.App.P. 30.
To successfully attack a default judgment by restricted appeal, the appellant must: (1) file the restricted appeal within six months after the final judgment is signed; (2) be a party to the lawsuit; (3) have not participated at trial; and (4) demonstrate error apparent from the face of the record. Quaestor Invs., Inc. v. Chiapas, 997 S.W.2d 226, 227 (Tex. 1999); Carmona v. Bunzl Distrib., 76 S.W.3d 566, 568 (Tex. App.-Corpus Christi 2002, no pet.). A restricted appeal is a direct attack on a judgment. Diles v. Henderson, 76 S.W.3d 807, 809 (Tex. App.-Corpus Christi 2002, no pet.). A restricted appeal affords an appellant the same scope of review as an ordinary appeal, that is, a review of the entire case. Id. (citing Norman Communications v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)). The only restriction on the scope of restricted appeal review is that the error must appear on the face of the record. Norman Communications, 955 S.W.2d at 270. The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal. Id.
C. Analysis
The record shows that Diana filed this restricted appeal within six months after the trial court signed the default decree of divorce. The clerk's record shows that Diana was a party to the lawsuit, and the reporter's record of the October 14, 2002 hearing shows that Diana did not participate at the hearing. Accordingly, we conclude that Diana has satisfied the first, second, and third requirements of her restricted appeal. See Quaestor, 997 S.W.2d at 227; Carmona, 76 S.W.3d at 568. We must now decide whether reversible error is apparent from the face of the record.
In her first issue, Diana contends the trial court's default decree of divorce cannot stand because defective service of process is apparent on the face of the record. Because no trial court evidentiary fact-finding is necessary, a "defective service" complaint may be raised for the first time on appeal. Carmona, 76 S.W.3d at 568. When we review a restricted appeal, there are no presumptions of valid issuance, service, and return of citation. Id. (citing Uvalde Country Club v. Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. 1985)). Before a default judgment is properly rendered, the record must reflect that the trial court has jurisdiction and that the case is ripe for judgment. Id. When determining whether the case is ripe for judgment, the trial judge has a mandatory duty to determine that the defendant was duly served with citation and has no answer on file. Id. Unless the record affirmatively shows, at the time the default judgment is entered, either an appearance by the defendant, proper service of citation on the defendant, or a written memorandum of waiver, the trial court does not have jurisdiction to enter a default judgment against the defendant. Id. The failure of the record to affirmatively show strict compliance with the rules of civil procedure will render the attempted service of process invalid and of no effect. Id. Virtually any deviation from the statutory requisites for service of process will destroy a default judgment. Id. at 568-69.
When a defendant is absent from, or is a nonresident of the state of Texas, the form of notice of the suit "shall be the same as prescribed for citation to a resident defendant." Tex. R. Civ. P. 108. When the citation is served by certified mail, the return by the officer or authorized person must also contain the return receipt with the addressee's signature. Id. "The return of service shall be . . . signed and sworn to by the party making such service before some officer authorized by the laws of [Texas] to take affidavits, under the hand and official seal of such officer." Id.
Raul attempted to serve Diana with process by certified mail, return receipt requested; however, the return receipt was not signed by Diana. See id. Raul also attempted to serve Diana with non-resident notice. The return of the non-resident notice contains the signature of the officer and shows the time and place that service of process was executed on Diana, but the return was not sworn to by the officer who made the service. See id.
Because the face of the record fails to show strict compliance with the requirements of rule 108 of the rules of civil procedure relating to service of process, we conclude that Diana has satisfied the fourth requirement of her restricted appeal. See id.; see also Quaestor, 997 S.W.2d at 227; Carmona, 76 S.W.3d at 568. Accordingly, we hold that service of process on Diana was invalid and of no effect. As a result, the default decree of divorce is void. See Ackerly v. Ackerly, 13 S.W.3d 454, 458 (Tex. App.-Corpus Christi 2000, no pet.) Diana's first issue is sustained.
We recognize that divorce proceedings have been characterized as quasi in rem. Deanne v. Deanne, 689 S.W.2d 262, 263 (Tex. App.-Waco 1985, no writ); Heth v. Heth, 661 S.W.2d 303, 304 (Tex. App.-Forth Worth 1983, writ dism'd w.o.j.). However, where a defendant has not been served in the manner required by law, the court's jurisdictional power to act in the case, both in rem and in personam, is not invoked notwithstanding actual notice of the suit on the part of the defendant. Deanne, 698 S.W.2d at 263. This includes both in rem and in personam aspects of a divorce action. Id.; Heth, 661 S.W.2d at 304-05.
In light of our disposition of Diana's first issue, it is unnecessary to address Diana's remaining issues. See Tex.R.App.P. 47.1.
We reverse the trial court's default decree of divorce and remand this case to the trial court for further proceedings.