A party who does not participate in a Texas divorce hearing may have a default judgment entered against them. If they meet certain criteria, however, they may be eligible for a restricted appeal. Those criteria are: filing notice of the restricted appeal within six months of the judgment being signed; having been a party to the lawsuit; not participating in the hearing, filing any timely motions after the judgment, or requesting findings of fact and conclusions of law; and an error that is apparent on the face of the record. Pike-Grant v. Grant. In determining if there was an error on the face of the record, the appeals court may only consider the evidence that was before the trial court.
In a recent case, a former husband challenged a default divorce decree based on an error on the face of the record.
Omitted Language in the Citation
If the defendant was not served in strict compliance with the Texas Rules of Civil Procedure, rendition of a no-answer default judgment is reversible error. The husband argued that the citation did not include all of the language required by Rule 99(c). Specifically, it had omitted language stating that the party may be required to make initial disclosures within 30 days after filing a written answer and directing the party to TexasLawHelp.org for more information. An amendment to the rule added this language at the beginning of 2021. The citation was issued more than three years after the effective date of the amendment, so the language was required.
The wife argued the omission of the language was inconsequential because she was subsequently served with the husband’s post-divorce petition for property division, with a citation that also omitted the same language. The appeals court pointed out that citation was not before the trial court when it rendered judgment and therefore could not be considered in the restricted appeal.
The appeals court also rejected the wife’s argument that strict compliance did not require “obeisance to the minutest detail.” The appeals court noted that the unpublished opinion from which that language was quoted involved language in the return and not the citation itself. It found no cases addressing the “type of failure” at issue in this case and declined to consider the missing language “a minute detail.”
The appeals court concluded that the service had not strictly complied with Rule 99(c) and that the failure to include language required by the rule constituted error on the face of the record.
The Return
The husband also argued the officer’s return had not confirmed the petition had been delivered to him. Rule 107 requires the person who executes the citation to complete a return of service, including a “description of what was served.” A copy of both the citation and the petition must be served upon the defendant. Tex. R. Civ. P. 106.
In this case, the return only referenced service of the citation and not of the petition. The appeals court determined this was a failure to strictly comply with Rule 107 and therefore an error on the face of the record.
The appeals court concluded the husband had demonstrated error on the face of the record, and the trial court had erred in granting default judgment against him. The appeals court reversed the final divorce decree and remanded the case to the trial court.
Seek Legal Advice
A default divorce can have permanent and sometimes devastating effects on a person’s rights and obligations, but, in some cases, it may be possible to challenge a default divorce. If you have been served with divorce papers, you should consult with a divorce attorney right away to protect your rights. Even if a default divorce has been entered against you, you should still contact a skilled Texas divorce attorney for advice on your options. Call McClure Law Group at 214.692.8200 to schedule a consultation.
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