in the Interest of J.T.O. and A.R.O., Children ( 2008 )

MEMORANDUM OPINION

No. 04-07-00241-CV

IN THE INTEREST OF J.T.O. & A.R.O., Children

From the 198th Judicial District Court, Kerr County, Texas Trial Court No. 94-698-B Honorable Emil Karl Prohl, Judge Presiding

Opinion by: Phylis J. Speedlin, Justice

Sitting: Catherine Stone, Justice

Sandee Bryan Marion, Justice

Phylis J. Speedlin, Justice

Delivered and Filed: January 16, 2008

REVERSED AND REMANDED

Barry Oxford appeals a default judgment confirming that no child support arrearages were owed by Sherrie J. Anderson. Because the record reflects that citation was served on a Sunday and because the citation was defective, we reverse the default judgment and remand the cause to the trial court for a new trial. ⁽¹⁾

In order for a default judgment to withstand direct attack, strict compliance with the rules of service of citation must affirmatively appear on the record. Primate Const., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994). There are no presumptions in favor of valid issuance, service, and return of citation. Id. The rules relating to the issuing and serving of processes are mandatory, and failure to comply with such rules renders the service thereunder of no effect. Lemothe v. Cimbalista, 236 S.W.2d 681, 682 (Tex. Civ. App.--San Antonio 1951, writ ref'd).

Rule 99(b) of the Texas Rules of Civil Procedure requires the citation to show the date of filing of the petition. Tex. R. Civ. P. 99(b). This requirement has remained "substantially the same since the beginning of the twentieth century, and the legislature has indicated no intent to relax strict compliance in this regard." Mansell v. Ins. Co. of the West, 203 S.W.3d 499, 501 (Tex. App.--Houston [14th Dist.] 2006, no pet.). In this case, the motion being served was filed on November 1, 2006; however, the citation states that the "petition was filed on 12/08/1994." ⁽²⁾ This error in stating the petition's filing date is fatally defective. Id.; Hance v. Cogswell, 307 S.W.2d 277, 278, 280 (Tex. Civ. App.--Austin 1957, no writ); Garza v. Garza, 223 S.W.2d 964, 964 (Tex. Civ. App.--San Antonio 1949, no writ). Although Anderson asserts that the trial court corrected this error by initially granting a new trial, the correction was not complete because ultimately the trial court stated that the motion for new trial was overruled by operation of law, and the default judgment was not set aside.

In addition to the defect in the citation, the officer's return states that the petition was delivered on a Sunday. The return of service is not a trivial, formulaic document and is prima facie evidence of the facts recited therein. Primate Const., Inc., 884 S.W.2d at 152. Rule 6 of the Texas Rules of Civil Procedure provides that process shall not be served on Sunday unless one of the stated exceptions, which are not applicable in this case, applies. Tex. R. Civ. P. 6. Because the record shows that Oxford was not served in strict compliance with the law, the default judgment must be set aside. Although Anderson points to another document in the record entitled "Affidavit of Reasonable Diligence," to contend that service actually occurred on a Monday, this document is inconsistent with both the officer's return and the officer's Affidavit of Service, which both contain the Sunday date. The Rules of Civil Procedure allow for liberal amendment of the return of service to show the true facts of service. Tex. R. Civ. P. 118; Primate Const, Inc., 884 S.W.2d at 153. If the day of service reflected in the officer's return was incorrect, Anderson, as the party requesting service, should have caused the return to be amended prior to judgment. Primate Const., Inc., 884 S.W.2d at 153.

The trial court's judgment is reversed, and the cause is remanded to the trial court for a new trial.

Phylis J. Speedlin, Justice

1. Because they are not necessary to the disposition of this appeal, we do not address the other issues raised by Oxford. See Tex. R. App. P. 47.1 (court of appeals must hand down a written opinion that is as brief as practicable but that addresses issues necessary to final disposition of the appeal).

2. Interestingly, this date is prior to the date of the divorce decree containing the child support provision to which the motion related. The date of the divorce decree was December 1, 1995.