Saundra L. Sanders v. Mark E. Sanders--Appeal from 247th District Court of Harris County (Majority)

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State: Texas

Court: Texas Northern District Court

Docket No: 01-11-00010-CV

Case Date: 10/27/2011

Plaintiff: Saundra L. Sanders

Defendant: Mark E. Sanders--Appeal from 247th District Court of Harris County (Majority)

Preview:Opinion issued October 27, 2011.

In The

Court of Appeals
For The

First District of Texas
------------------------

NO. 01-11-00010-CV ---------------------- SAUNDRA L. SANDERS, Appellant V. MARK E. SANDERS, Appellee

On Appeal from the 247th District Harris County, Texas Trial Court Case No. 2010-01316

MEMORANDUM OPINION In this restricted appeal of a default judgment granting a final divorce decree, Saundra Sanders raises three issues contending that she was not properly

served with the citation or petition for divorce and that the evidence is legally and factually insufficient to support the trial court's property division. We affirm. Background Mark Sanders filed for divorce after 10 years of marriage to Saundra. The clerk issued citation, and Mark attempted to serve Saundra. After three failed attempts at service by certified mail and four failed attempts at service by personal delivery, however, Mark moved for substituted service. The trial court authorized substituted service by leaving a copy of the citation and divorce petition taped to the front entrance of the home Mark and Saundra still shared at the time Mark filed for divorce. Although a process server's affidavit states that the citation and petition were taped to the front entrance of her home, Saundra complains that she never received a copy of either document. Mark's petition alleged the marriage had become "insupportable because of discord or conflict of personalities." The couple did not have children. Mark identified the home the couple shared and requested that he be permitted to keep a car; certain furniture, electronic equipment, and personal items; and the funds in three checking accounts. Saundra did not file an answer or otherwise appear. On July 30, 2010, the trial court conducted a hearing and signed a default judgment granting Mark a final decree of divorce. The divorce decree noted that
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"although duly and properly cited," Saundra "did not appear and wholly made default." With respect to the division of property, the trial court ordered only that "the personal effects of the parties are awarded to the party having possession." There was no further division of the marital estate. According to Saundra, she and Mark were still living together in the same house when she received notice of the default judgment on September 7, 2010. She filed her notice of restricted appeal on December 30, 2010. Restricted Appeal A restricted appeal confers our court with jurisdiction to review service issues and to determine whether the evidence is legally and factually sufficient to support the judgment. See Wilson v. Wilson, 132 S.W.3d 533, 536 (Tex. App.-- Houston [1st Dist.] 2004, pet. denied) (citing Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)). To prevail in her restricted appeal, Saundra must show: (1) she appealed the default judgment within six months, (2) she was a party to the divorce proceeding, (3) she did not participate in the hearing and did not timely file a post-judgment motion, and (4) the error complained of is apparent on the face of the record. See TEX. R. APP. P. 30; see also Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.--Houston [1st Dist.] 2006, no pet.). The "face of the record" consists of all the papers that were before the trial court when it rendered
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judgment, including the statement of facts.

See Wilson, 132 S.W.3d at 536.

Because it is dispositive of the appeal, we consider only the appearance of error on the face of the record. Service of Process In her first issue, Saundra argues that the default judgment should be reversed because she was not served with citation or a copy of the divorce petition and she did not receive notice of the default hearing. Saundra's primary complaint is not that Mark failed to comply with the procedural rules for service of process, but that he interfered with service by intercepting her mail and by removing the citation and petition from the front door of their shared home. To support her assertion that she did not actually receive a copy of the citation or petition, Saundra included in her appendix copies of her employment time sheets recording the days and hours she worked. Because those time sheets are not in the appellate record, we cannot consider them as evidence in this restricted appeal. See Alexander, 134 S.W.3d at 848-49 (instructing against

consideration of extrinsic evidence in restricted appeals); Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.--Houston [14th Dist.] 2002, no pet.) (noting that attachment of documents as exhibits or appendices to briefs is not formal inclusion in record on appeal).

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We look only to the face of the record for strict compliance with the rules governing citation and return of service. See Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990) ("For well over a century the rule has been firmly established in this state that a default judgment cannot withstand direct attack by a defendant who complains that he was not served in strict compliance with applicable requirements."); see also Ins. Co. of State of Pa. v. Lejeune, 297 S.W.3d 254, 255 (Tex. 2009) (noting that failure to strictly comply with rules for service of process constitutes error on face of record). The party requesting service, in this case Mark, must ensure not only that proper service is accomplished, but that the record reflects as much. Furst v. Smith, 176 S.W.3d 864, 869 (Tex. App.--Houston [1st Dist.] 2005, no pet.). No presumptions in favor of valid service are made in a restricted appeal from a default judgment. Hubicki v. Festina, 226 S.W.3d 405, 407 (Tex. 2007). In a divorce proceeding, citation "shall be issued and served as in other civil cases." TEX. FAM. CODE ANN.

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