Opinion
14-22-00507-CV
08-22-2023
IN THE INTEREST OF W.X.C., A MINOR CHILD
On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2021-04792
Panel consists of Justices Bourliot, Hassan, and Poissant.
MEMORANDUM OPINION
Frances Bourliot Justice
Appellant, G.C., appeals an order entered by default that acknowledges him as the father of W.X.C., a minor child and sets his child support obligations. G.C. contends, among other things, that the trial court erred in entering a default against him because his uncontroverted testimony at the motion for new trial hearing established that he was not served with the petition for confirmation of nonagreed child support review order, and the default was taken without a record. We affirm.
While this case is not a termination case, we will use aliases, in accordance with Texas Rule of Appellate Procedure 9.8, to protect the minor's identity. See Tex. R. App. P. 9.8.
Background
On January 26, 2021, the Attorney General for the State of Texas filed a Petition for Confirmation of Non-Agreed Child Support Review Order alleging that G.C. was the father of W.X.C. The Attorney General requested issuance of service of process on G.C. On January 26, 2021, the district clerk issued a citation and accompanying petition and Child Support Review Order. The citation included G.C.'s name and address and directed him to file a written answer or request a court hearing on or before the expiration of 20 days after the citation and accompanying petition and order were received, otherwise "a default judgment may be taken against [him]." The citation and accompanying petition and order were personally served on G.C. on March 29, 2022. G.C. did not file an answer to the suit or request a court hearing.
On April 18, 2022, the Associate Judge signed the Non-Agreed Child Support Review Order and, in doing so, found G.C. to be the father of W.X.C., set G.C.'s child support obligations, and addressed G.C.'s right of access to the minor child. On May 13, 2022, G.C. filed a motion for new trial alleging that, inter alia, he was not personally served, and the service return did not have a description of the documents served. On June 29, 2022, the district court held a hearing on G.C.'s motion. The trial judge denied G.C.'s motion for new trial, and G.C. timely filed his notice of appeal.
Discussion
In five issues on appeal, G.C. challenges the default entered against him and the denial of his motion for new trial contending that: (1) the trial court abused its discretion in failing to grant a new trial based on his uncontroverted testimony that he was not served with the petition; (2) the service return did not strictly comply with the Texas Rules of Civil Procedure; (3) the service return did not identify what documents he was allegedly served with; (4) the trial court abused its discretion in failing to grant a new trial because there was "no record made . . . regarding unliquidated damages of child support"; and (5) the pleadings do not support the default judgment.
I. The Trial Court Did Not Abuse Its Discretion by Denying the Motion for New Trial
In G.C.'s first and fourth issues, he contends that the trial court abused its discretion in denying his motion for new trial because: (1) his "uncontroverted testimony" demonstrates that he was not served with process and (2) there was "no record . . . made regarding unliquidated damages of child support." We begin by analyzing together G.C.'s first and fourth issues since they raise similar arguments.
We review a trial court's ruling on a motion for new trial for an abuse of discretion. B. Gregg Price, P.C. v. Series 1-Virage Master LP, 661 S.W.3d 419, 423 (Tex. 2023). The rule of Craddock v. Sunshine Bus Lines entitles a defaulting party to a new trial when: "(1) the failure to appear was not intentional or the result of conscious indifference, but was the result of an accident or mistake, (2) the motion for new trial sets up a meritorious defense, and (3) granting the motion will occasion no delay or otherwise injure the plaintiff." Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 925 (Tex. 2009) (citing Craddock, 133 S.W.2d 124, 126 (Tex. [Comm'n Op.] 1939)). The Craddock rule applies to no-answer default judgments. In re R.R., 209 S.W.3d 112, 115 (Tex. 2006); Craddock, 133 S.W.2d at 126. When a defaulting party meets all three Craddock-test elements, a trial court abuses its discretion if it fails to grant a new trial. Dolgencorp, 288 S.W.3d at 926; Old Republic Ins. Co. v. Scott, 873 S.W.2d 381, 382 (Tex. 1994). When as here, no findings of fact and conclusions of law are filed, the denial of a motion for new trial must be upheld on any legal theory supported by the evidence. See Strackbein v. Prewitt, 671 S.W.2d 37, 38 (Tex. 1984).
Assuming, without deciding, that G.C. established the first Craddock element-that his failure to file an answer was not intentional or the result of his conscious indifference, G.C. failed to establish the second Craddock element; that is, "the motion for new trial sets up a meritorious defense." See Craddock, 133 S.W.2d at 126. In this case, G.C.'s motion for new trial failed to specifically identify any of the three Craddock elements or allege any facts that would support a meritorious defense. Absent this second Craddock element, the trial court did not abuse its discretion by denying G.C.'s motion for new trial. See Craddock, 133 S.W.2d at 126.
To the extent that G.C. argues that the trial court erred in denying his motion for new trial because a record was required, we disagree. G.C. does not cite authority for this proposition. Further, section 233.0271 of the Texas Family Code contemplates confirmation of a nonagreed child support review order without a hearing. See Tex. Fam. Code § 233.0271. In order to request a hearing, G.C. was required to submit "any responsive pleading that was intended as an objection to confirmation of the child support review order." Id. at § 233.022(a). In this case, G.C. failed to file an answer or request a hearing; thus, the trial court was required to sign the nonagreed child support review order. Id. at § 233.0271 (providing that "[i]f a request for hearing has not been timely received, the court shall confirm and sign a nonagreed child support review order.").
Accordingly, we overrule G.C.'s first and fourth issues challenging the trial court's refusal to grant his motion for new trial. We turn to G.C.'s remaining issues on appeal.
II. The Trial Court Did Not Abuse Its Discretion in Entering a Default Judgment
In G.C.'s second and third issues, he argues that the trial court erred in awarding a default judgment against him because the record is devoid of strict compliance with the rules governing service of process. Because these issues raise similar arguments, we analyze them together.
As with a trial court's ruling on a motion for new trial, we review the granting of a default judgment for an abuse of discretion. Agraz v. Carnley, 143 S.W.3d 547, 551 (Tex. App.-Dallas 2004, no pet.). A trial court abuses its discretion if it acts without reference to any guiding rules and principles or in an arbitrary or unreasonable manner. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). So long as a trial court decides a matter within its discretionary authority, an appellate court cannot disturb the trial court's decision even if the reviewing court would have decided the issue differently. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding); see also id. at 242.
G.C. attempts to attack the default judgment by asserting that he was not served with citation in strict compliance with the rules governing service of process. Generally, a default judgment cannot withstand a direct attack by a defendant who shows that he was not served in strict compliance with the rules governing service of process. See Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). But in this case, G.C.'s reliance on the rules governing service of process is misdirected because different procedures apply to proceedings under the child support review process. Likewise, G.C.'s argument that the return of service did not comply with Texas Rules of Civil Procedure 99 and 107 is inapposite in proceedings governed by the child support review process.
Ordinarily, suits to adjudicate parentage of a child are governed by the Texas Rules of Civil Procedure. See Tex. Fam. Code § 160.601. But section 160 provides an exception for proceedings under section 233. Id. at § 160.601(b). Section 233.021 of the Texas Family Code explicitly calls only for service of a copy of the petition and order. See id. § 233.021(c) ("The clerk shall deliver by personal service . . . a copy of the petition for confirmation of a nonagreed review order and a copy of the order . . . to each party entitled to service who has not waived service."); see also In re S.B.S., 282 S.W.3d 711, 717 (Tex. App.-Amarillo 2009, pet. denied).
We are also guided by the legislative history of section 233. The legislature removed the requirement that the clerk issue and serve a citation when a child support review process proceeding did not result in an agreed order. See Act of June 16, 1993, 73rd Leg., R.S., ch. 730, § 14, 1993 Tex. Gen. Laws 2866, 2869, amended by Act of May 21, 1997, 75th Leg., R.S., ch. 911, § 80, 1997 Tex. Gen. Laws 2864, 2887, amended by Act of April 29, 2021, 87th Leg., R.S., ch. 175 (S.B. 285), § 6, eff. September 1, 2021 (current version of § 233.021). The removal of the requirement that the clerk issue and serve a citation is consistent with the purpose of the child support review process. See Tex. Fam. Code § 233.001 (providing that "[t]he purpose of the procedures specified in the child support review process . . . is to enable the Title IV-D agency to take expedited administrative actions to . . . enforce child support"); see also Mitchell Energy Corp. v. Ashworth, 943 S.W.2d 436, 438 (Tex. 1997) (holding that our primary objective is to give effect to the legislature's intent).
Thus, we conclude that section 233.0271 establishes a process by which a default judgment may be taken in a child support review process proceeding without the issuance of a citation or strict compliance with the rules governing service of process. See Tex. Fam. Code § 233.023 ("A party may file a request for a court hearing not later than the 20th day after the date the petition for confirmation of a nonagreed review order is delivered to the party.); see also id. § 233.0271 ("If a request for hearing has not been timely received, the court shall confirm and sign a nonagreed child support review order not later than the 30th day after the date the petition for confirmation was delivered to the last party entitled to service.") (emphasis added).
On the record, the trial court took judicial notice of the return of service which stated that G.C. was served on March 9, 2022, at 10:27 a.m. with a copy of the citation, petition, and order. The return of service, which was made under penalty of perjury, also included a physical description of the person accepting service. G.C. does not dispute that the description of the person accepting service matches his physical description nor does he dispute that the service address was his address.
"Recitations in a return of citation are prima facie evidence of the facts recited in the return, creating the presumption that proper service was effected." Lojo v. Myrtle Consulting Grp. LLC, No. 14-19-00504-CV, 2021 WL 2371148, at *2 (Tex. App.-Houston [14th Dist.] 2021, no pet.) (mem. op) (citing Silver, 884 S.W.2d at 152). To overcome this presumption, "a defendant must do more than simply deny service: the defendant must corroborate denial of service with evidence of supporting facts and circumstances." Kapur v. U.S. Bank Nat'l Ass'n, No. 14-19-00842-CV, 2021 WL 388475, at *4 (Tex. App.-Houston [14th Dist.] Feb. 4, 2021, no pet.) (mem. op.) (citing Ward v. Nava, 488 S.W.2d 736, 738 (Tex. 1972)).
Though G.C. alleges that he was at work at the time he was served with a copy of the petition and order, he failed to corroborate his claim denying service. See Novik v. Lendr, LLC, 592 S.W.3d 907, 913 (Tex. App.-Houston [14th Dist.] 2019, no pet.) (providing that recitations in the return of service carry so much weight that they cannot be rebutted by uncorroborated proof).
Accordingly, the trial court did not abuse its discretion in entering a default judgment because G.C. failed to corroborate his claim denying service. We overrule G.C.'s second and third issues.
III. Sufficiency of the Pleadings
In his final issue, G.C. argues that the pleadings do not support the judgment. G.C. urges that a default judgment must be based on the pleadings.
A default judgment must be supported by the pleadings. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); McKnight v. Trogdon-McKnight, 132 S.W.3d 126, 131 (Tex. App.-Houston [14th Dist.] 2004, no pet.).
Section 233.020 of the Texas Family Code outlines the contents of a petition for confirmation of a nonagreed child support review order and states:
A petition for confirmation of a child support review order not agreed to by the parties: must include the final review order as an attachment to the petition; and may include a waiver of service under Section 233.018(b) and an agreement to appear in court for a hearing. Documentary evidence relied on by the Title IV-D agency . . . shall be filed with the clerk as exhibits to the petition, but are not required to be served on the parties. The petition must identify the exhibits that are filed with the clerk.Tex. Fam. Code § 233.020.
Here, G.C.'s argument that the pleadings do not support the judgment is without merit. In its petition, the Attorney General unequivocally states that it "requests confirmation of the Non-Agreed Child Support Review Order" pursuant to sections 231 and 233 of the Texas Family Code. The petition identified that a copy of the order, acknowledgement of paternity, and investigative report was attached to the petition. Because the Attorney General complied with section 233, we cannot agree with G.C. that the trial court erred in entering judgment against him.
Accordingly, we overrule G.C.'s fifth issue.
Conclusion
We affirm the judgment of the trial court.