Opinion
No. 05-16-00635-CV
02-27-2017
IN THE INTEREST OF K.M.C., A CHILD
On Appeal from the 401st Judicial District Court Collin County, Texas
Trial Court Cause No. 401-54686-2015
MEMORANDUM OPINION
Before Justices Bridges, Myers, and Brown
Opinion by Justice Myers
Shantel Berry-Conway brings a restricted appeal from the default judgment in a suit for divorce and child custody. In her issue on appeal, appellant contends the default judgment must be reversed because the return of service was defective because it did not state the date and time the process was received for service. We agree. We reverse the trial court's judgment and remand the cause for further proceedings.
BACKGROUND
Appellee filed his petition for divorce against appellant on August 24, 2015. The process server attempted service on appellant from September 3 to 11, 2015, without success. Appellee moved for alternate service by posting on the front door of appellant's residence. On October 8, 2015, the trial court signed the order for alternate service, and the process server posted the citation, petition, and order on motion for alternate service on appellant's door at 5:09 p.m. on October 14, 2015. The server filed the return of service on November 2, 2015. The return of service and the documents attached to it do not indicate the date and time the server received the citation. Appellant did not file an answer, and the trial court rendered a default judgment on December 4, 2015. Appellant did not file a postjudgment motion, request findings of fact and conclusions of law, or file a notice of appeal within the time to file a notice of appeal under Rule of Appellate Procedure 26.1(a). Appellant filed notice of restricted appeal on May 31, 2016.
RESTRICTED APPEALS
To be entitled to a restricted appeal, appellant had to establish: (1) she filed notice of restricted appeal within six months after the judgment was signed; (2) she was a party to the underlying lawsuit; (3) she did not participate either in person or through counsel in the hearing that resulted in the judgment complained of and did not timely file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent on the face of the record. TEX. R. APP. P. 30; In re Baby Girl S., 353 S.W.3d 589, 591 (Tex. App.—Dallas 2011, no pet.).
The record shows appellant filed her notice of restricted appeal within six months after the trial court signed the final judgment, she was a party to the underlying lawsuit, she did not participate either in person or through counsel in the hearing that resulted in the judgment complained of, and she did not file any postjudgment motions or requests for findings of fact and conclusions of law. Accordingly, we must determine whether error is apparent on the face of the record.
Appellant asserts there is error on the face of the record, namely, the return of service does not include information concerning "the date and time the process was received for service" as required by Rule of Civil Procedure 107(b)(4). See TEX. R. CIV. P. 107(b)(4). In reviewing a default judgment on restricted appeal, we do not presume the citation was validly issued, served, or returned. Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (per curiam). Strict compliance with the rules governing service of citation is mandatory, and failure to comply constitutes error on the face of the record. Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 256 (Tex. 2009) (per curiam); Primate Constr., 884 S.W.2d at 153 ("Proper service not being affirmatively shown, there is error on the face of the record, and the court of appeals erred in holding otherwise."). In this case, the return and the documents to which it is attached do not show either the date or time "the process was received for service," which is required by rule 107(b)(4). Therefore, the return is defective, and the default judgment cannot stand. Cf. Lejeune, 297 S.W.3d at 255-56 (error on face of record because return did not show the hour of receipt of citation).
We conclude there is error on the face of the record. We sustain appellant's issue on appeal.
CONCLUSION
We reverse the trial court's judgment, and we remand the cause to the trial court for further proceedings.
/Lana Myers/
LANA MYERS
JUSTICE 160635F.P05
JUDGMENT
On Appeal from the 401st Judicial District Court, Collin County, Texas
Trial Court Cause No. 401-54686-2015.
Opinion delivered by Justice Myers. Justices Bridges and Brown participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is REVERSED and this cause is REMANDED to the trial court for further proceedings consistent with this opinion.
It is ORDERED that appellant Shantel Berry-Conway recover her costs of this appeal from appellee Edwin Conway Jr. Judgment entered this 27th day of February, 2017.