Richard Wayne Sanders v. Catherine Michelle Bumgardner

IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN

NO. 3-90-102-CV

RICHARD WAYNE SANDERS,

APPELLANT

vs.

CATHERINE MICHELLE BUMGARDNER,

APPELLEE

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 471,274, HONORABLE W. JEANNE MEURER, JUDGE PRESIDING

Appellant, Richard Wayne Sanders, by writ of error seeks

review of a default judgment rendered in a paternity suit.

Appellee, Catherine Michelle Bumgardner, filed her original

petition before the birth of her daughter, alleging that appellant

was the child's biological father. Her suit sought to establish a

parent-child relationship between appellant and the child. She

further sought appointment as the child's managing conservator, as

well as orders for support of the child, for payment of health care

expenses, and for attorney's fees. Appellant did not answer the

suit and did not participate in the trial. By its final judgment,

the trial court decreed that appellant was the child's father and

ordered him to pay child support in the amount of $10,000 per

month, as well as health care insurance, uninsured medical

expenses, attorney's fees, and costs. Appellant argues that the

trial court erred in rendering a default judgment because, due to

defective service, it never acquired in personam jurisdiction over

him. He further asserts that the evidence is either legally or

factually insufficient to support the amount of child support

ordered. We will affirm the judgment of the trial court.

Service was not Defective

In several points of error, appellant complains that the

trial court erred in rendering a default judgment because it lacked

in personam jurisdiction over him. Appellant complains that the

service on him was defective because he was served with process by

a person other than the person authorized to do so by the trial

court.

Appellant lives in the State of Virginia. Under the

Texas Rules of Civil Procedure, citation may be served on a

nonresident by any disinterested person authorized to make oath of

the fact. Tex. R. Civ. P. Ann. 108 (1979) (Rule 108). (1) No court

authorization is required under the rules. Nevertheless, upon

appellee's request, the trial court authorized "Doug Cramarty" to

execute service on appellant. A review of the record reveals that

the affidavit of the person requesting authorization as a private

process server, the original return, and the amended return all

appear to bear the same signature of either "D. Cromarty" or

"D. Cramarty." Appellant complains that because of the variance,

there is a lack of jurisdiction apparent on the face of the record

that vitiates the trial court's default judgment and entitles him

to a new trial. See McKanna v. Edgar, 388 S.W.2d 927, 928 (Tex.

1965).

The Family Code states that, in suits affecting the

parent-child relationship, citation shall be issued and served as

in other civil cases. Tex. Fam. Code Ann. § 11.09 (c) (1986). Rule

103 states that citation may be served anywhere by (1) any sheriff

or constable or other person authorized by law or (2) by any person

authorized by law or by written order of the court . Rule 106(a)

provides the methods whereby those authorized by Rule 103 may serve

citation, while Rule 106(b) provides the method for obtaining

alternate service requiring court authorization. Rule 107 directs

the proper manner for executing the return of service. Finally,

Rule 108 states the proper means for obtaining service over a

nonresident, and states that the citation may be served by "any

disinterested person competent to make oath of the fact in the

manner as provided in Rule 106." Appellant does not dispute that,

in the absence of any court order, Rule 108 controls the manner of

serving nonresidents.

Here, pursuant to Rule 103, the trial court signed an

order authorizing "Doug Cramarty" to act as a private server of

process. The trial court did not prohibit service by anyone

otherwise qualified by law, nor did it order any special manner of

service. Appellant's complaint assumes that only the person

authorized by the court order could execute service upon him. Even

though no order was required, appellant argues that, because an

order was signed, it must be complied with in every respect. We

disagree with appellant; the order authorizing a private server did

not disqualify anyone otherwise qualified under Rule 103 and Rule

108.

Appellant refers us to several cases in which appellate

courts overturned default judgments because the pleadings,

citation, return, or judgment misspelled or misidentified the

defendant , not the server . See, e.g., Uvalde Country Club v.

Martin Linen Supply Co., Inc., 690 S.W.2d 884 (Tex. 1985); De La

Fuente v. Castillo, 740 S.W.2d 113 (Tex. App. 1987, no writ). The

cases appellant cites are distinguishable. Unlike the present

cause, these cases raise questions of whether it is just to impose

a judgment against a person who was not served or against a person

who was served, but not named in the complaint.

Similarly, we can distinguish this cause from cases

involving publication or some other form of special or substituted

service ordered by the court. See Rules 106(b), 109, and 109a;

Mega v. Anglo Iron & Metal Co., 601 S.W.2d 501 (Tex. Civ. App.

1980, no writ); Cates v. Pon, 663 S.W.2d 99 (Tex. App. 1983, writ

ref'd n.r.e.). In Mega , a default judgment was reversed when a

Rule 106 order for substituted service was procured that authorized

"A. R. 'Tony' Martinez," to serve citation because the return was

signed by "A. R. Martinez, Jr." In Cates , the judgment was

reversed when substituted service was authorized pursuant to Rule

106, to be performed by "Leonard Green," but the return was signed

by "Lindsey E. Siriko." In both Mega and Cates , the court's order

was necessary to obtain substituted service under Rule 106, and the

record showed that the person executing service was not the person

authorized by the court. In the present cause, however, service

could be perfected without court order by anyone shown to be

competent.

Appellant recognizes that a slight misspelling or slight

discrepancy in the name may not require reversal of the judgment.

He urges that "Doug Cramarty" is an entirely different name from

"D. Cramarty" or "D. Cromarty," which difference establishes that

an unauthorized person served process, making that service and the

return of citation fatally defective. We are not persuaded that a

material discrepancy exits in these names. Even if appellant is

correct that the variance in name is material, however, we hold

that the service was valid because the record reflects that the

server was competent under Rule 108.

Of course, the record supporting a default judgment must

show strict compliance with the rules governing service of process.

McKanna v. Edgar, 388 S.W.2d 927, 929 (Tex. 1965). There is no

presumption in favor of valid issuance, service, or return of

citation when a default judgment is directly attacked. Cates , 663

S.W.2d at 102 ; McKanna , 388 S.W.2d at 929 . Failure to show strict

compliance with the rules of civil procedure renders the attempted

service of process invalid. Higginbotham v. General Life &

Accident Ins. Co., 796 S.W.2d 695, 697 (Tex. 1990); Uvalde Country

Club , 690 S.W.2d at 885 .

The amended return in the present cause complies with the

requirements of Rule 108. It reads:

CAME TO HAND on the 2nd day of October, 1989, at 11:00

a.m. executed at 14536 Creek Branch Court, Centerville,

within the County of Fairfax, State of Virginia, at 7:45

o'clock p.m. on the 25th day of October, 1989, by

delivering to the within named Richard Wayne Sanders, in

person, a true copy of the citation attached hereto

together with an attached copy of the Original Petition

of the Plaintiff, having first attached said copy of the

such Petition to such copy of citation and endorsed on

such copy of citation the date of delivery. I am a

person competent to make oath and I have no interest in

this suit .

The only difference between the original and the amended return is

the sentence underlined above. Both the original and amended

returns were signed by the process server, sworn to, and notarized.

The statement that he had no interest in the suit and was competent

to make oath complies with the requirements of Rule 108. See

Wright v. Wentzel, 749 S.W.2d 228, 232 (Tex. App. 1988, no writ).

Appellant attacks the amended return as defective because

the trial court allowed it to be filed without notice to the

appellant. The trial court has the discretion to allow the

amendment of proof of service:

At any time in its discretion and upon such notice and on

such terms as it deems just, the court may allow any

process or proof of service thereof to be amended, unless

it clearly appears that material prejudice would result

to the substantial rights of the party against whom the

process issued.

Tex. R. Civ. P. Ann. 118 (1972).

Review of a trial court's action under the abuse of

discretion standard is a question of law. Jackson v. Van Winkle,

660 S.W.2d 807, 810 (Tex. 1983). The test for abuse of discretion

is whether the court acted without reference to any guiding rules

and principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d

238, 241-42 (Tex. 1985); Craddock v. Sunshine Bus Lines, 133 S.W.2d

124, 126 (Tex. 1939). Another way of stating the test is whether

the act was arbitrary or unreasonable. Downer , 701 S.W.2d at 242 .

There is no indication that the trial court acted

arbitrarily or unreasonably. When a defendant has not asserted

that the earlier return on the citation misled him, it is not an

abuse of discretion for the trial court to allow an amended return

to be filed or to permit filing without requiring notice of that

amendment to the defendant. Bavarian Autohaus, Inc. v. Holland,

570 S.W.2d 110, 113 (Tex. Civ. App. 1978, no writ). In the present

cause, appellant does not assert that the earlier return on the

citation misled him. In addition, the trial court found that "the

substantial rights of the Respondent . . . are not materially

prejudiced by the nature or terms of this amendment." Recently,

the supreme court emphasized that Rule 118 is to be given very

liberal construction by holding that the trial court's order on

motion for new trial, together with the rest of the record on

appeal, as a whole, acts to amend the return and evidences strict

compliance with a valid method of service. See Higginbotham , 796

S.W.2d at 696-97 .

Appellant further urges that the amended return of

citation is defective because it fails to include a sworn statement

that the server of process was eighteen years or older. Rule 108

does not require such a statement, so its absence does not make

this amended return defective under the rules. Further, the return

of service need not show the facts set out in the statute

authorizing service, if they are shown from the record as a whole.

See, e.g. , McKanna , 388 S.W.2d 927 . In the present cause, the

affidavit of the process server states that he is over eighteen,

and the trial court made a specific finding in the order under Rule

103 that the process server is "more than 18 years of age."

Finally, appellant argues that the amended return of

citation was invalid because a photocopy, rather than the original

of the citation, was attached to the amended return. Rule 108

provides "[r]eturn of service in such cases shall be endorsed on or

attached to the original notice." This provision applies, however,

to the original return of citation and does not govern an amended

return. Rule 118, which governs amended returns, does not require

that amended returns be attached to the original citation.

Appellant's first, second, sixth, and seventh points of

error are overruled.

There is no Error Apparent from the Face of the Record

Appeal by writ of error is a statutorily authorized,

direct attack on a default judgment. Tex. Civ. Prac. & Rem. Code

§§ 51.012, 51.013 (1986); Tex. R. App. P. Ann. 45 (Pamph. 1990).

A party must meet four prerequisites to assert an appeal

successfully by writ of error: (1) the petition was brought within

six months after the judgment was signed; (2) the petition was made

by a party to the suit; (3) the petitioning party did not

participate in the trial; and (4) the error complained of is

apparent from the face of the record. Stubbs v. Stubbs, 685 S.W.2d

643, 644 (Tex. 1985).

On appeal by writ of error the reviewing court is not

limited to a review of the transcript. Morales v. Dalworth Oil

Co., 698 S.W.2d 772, 774 (Tex. App. 1985, writ ref'd n.r.e.). The

court may test the validity of the judgment by reference to all the

papers on file in the case, including the statement of facts.

First Dallas Petroleum, Inc. v. Hawkins, 727 S.W.2d 640, 643 (Tex.

App. 1987, no writ); see also Smith v. Smith, 544 S.W.2d 121 (Tex.

1976) (where in a divorce case, there was no statement of facts,

the judgment was invalid). The Family Code requires a record to be

made in all suits affecting the parent-child relationship unless

waived by the parties with the consent of the court. Tex. Fam.

Code Ann. § 11.14 (d) (1986); Rogers v. Rogers, 561 S.W.2d 172, 173

(Tex. 1978); Kisinger v. Kisinger, 748 S.W.2d 2, 5 (Tex. App. 1987,

no writ).

In his third, fourth, and fifth points, appellant asserts

that the evidence is legally or factually insufficient to support

the amount of child support awarded and the judge's finding of

paternity. He argues that the trial court erred in ordering child

support payments of $10,000 per month either because there was no

evidence as to the needs of the child or the net resources of the

appellee, or because there was insufficient evidence to support a

child support order for such an amount.

Generally, the same standards of review that govern

ordinary appeals govern review of a default judgment once the other

requirements of a writ of error have been met. Hawkins , 727 S.W.2d

at 643 . The usual presumption of the judgment's validity does not

apply, however, when the appellate court reviews a default judgment

by writ of error. McKanna , 388 S.W.2d at 929 . When an appellant

challenges both the legal and factual sufficiency of the evidence,

we must first determine whether some evidence supports the jury's

findings. Calvert, "No Evidence" and "Insufficient Evidence"

Points of Error , 38 Texas L. Rev. 361, 369 (1960). In reviewing a

"no evidence" point, the court considers only the evidence and

reasonable inferences drawn from that evidence in the light most

favorable to the findings, disregarding all contrary evidence and

inferences. Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In

re King's Estate, 244 S.W.2d 660, 661 (Tex. 1951). The court will

sustain the point if it finds a complete lack of probative evidence

or only a scintilla of evidence. See Calvert, supra .

The legislature has promulgated child support guidelines

to aid courts in setting child support in suits affecting the

parent-child relationship, including paternity suits. Tex. Fam.

Code Ann. § 14.052 (a) (Supp. 1991) (the Code). The amount of

support shall be determined without regard to whether the child was

born in wedlock. Code § 14.05. The statute creates a rebuttable

presumption that the amount of support set out in the guidelines is

reasonable and is in the child's best interest. Code § 14.05(h).

But, the statute directs that the court may consider the following

factors along with the guidelines in determining the amount of

support in a particular case:

(1) the needs of the child;

(2) the ability of the parents to contribute to the

support of the child;

(3) any financial resources available for the support

of the child; and

(4) the amount of possession to and access to a child.

Code § 14.052(b). See also Code § 14.054 (a nonexclusive list of

relevant factors that may justify a level of child support at

variance from the range recommended in the guidelines). Among

other factors, the court may consider any special or extraordinary

educational, healthcare or other expenses of the child or the

parties. Code § 14.054(11). The Code further authorizes

additional support, depending on the child's needs, when the

obligor's net resources exceed $4000 monthly. Code § 14.055(c).

We reject appellant's contentions that the trial court

erred in ordering child support payments of $10,000 per month

either because there was no evidence as to the needs of the child

or because there was no evidence as to appellee's net resources.

The statement of facts contains probative evidence on both issues.

There was evidence presented as to the special needs of

the child. At the time of the hearing, the child was forty-two

days old and required full-time nursing case by her mother. The

evidence showed that the child is being treated and studied by the

SIDS Institute in Lake Jackson, Texas, as well as by her own

pediatrician. She is at risk for Sudden Infant Death Syndrome

(SIDS) because she is the sibling of a SIDS victim and because she

has been diagnosed as having abnormally high obstructive episodes

in her breathing and has had some "central apnea episodes." She

has to be monitored full time by an apnea monitor; someone trained

in CPR who is never more than 10 seconds away from the child, must

resuscitate her when the monitor sounds an alarm. In a typical

evening the alarm sounds frequently; the mother repeatedly revives

her and consults with doctors and technicians over the phone.

Appellee testified that she was a social worker on leave

from the Austin-Travis County Mental Health and Mental Retardation

Agency and that she would lose her job and her health insurance if

she could not find full-time nursing care for the child and return

to work. She testified that it did not "look like" she would be

able to return to work. Appellant's third and fourth points of

error are overruled.

In his fifth point of error, appellant argues that there

is insufficient evidence to support the order that he pay child

support of $10,000 a month. When reviewing sufficiency of the

evidence points, the court considers and weighs all evidence in the

case to determine whether the evidence is insufficient or if the

verdict is so against the great weight and preponderance of the

evidence as to be manifestly unjust. Pool v. Ford Motor Co., 715

S.W.2d 629 (Tex. 1986); King's Estate , 244 S.W.2d at 661 .

Although the testimony was limited, in addition to

evidence of the child's needs and appellee's lack of resources, the

evidence showed that at the time appellant was a professional

football player, starting wide receiver for the Washington

Redskins; that he was promised a new contract following the Super

Bowl; that he was seeking compensation of at least $1 million a

year; and that when he went to camp that year he "held out" for a

new contract and negotiated one that appellee believed met his

contract request of more than $3.5 million over three years.

In its judgment, the court found that appellant had an

earning capacity of at least $1 million per year, that child

support should be set at $10,000.00 a month based on the needs of

the child, and that the child's needs included twenty-four hour a

day nursing care. The court also ordered that appellant maintain

health insurance for the child and pay all medical expenses not

covered by health insurance.

In support of his contention that under this record the

Family Code limits the maximum award of child support to $800.00

per month, appellant cites the following provision of the Code:

In situations in which the obligor's net resources exceed

$4,000 per month, the court shall presumptively apply the

percentage guidelines in Subsection (b) of this section

[20% for one child] to the first $4,000 of the obligor's

net resources. Without further reference to the

percentage recommended by these guidelines, the court may

order additional amounts of child support as proven ,

depending on the needs of the child at the time of the

order.

Code § 14.055(c) (emphasis added).

We disagree with appellant's interpretation. As

discussed above, there was evidence of the special healthcare needs

of the child. In addition, the court has discretion in applying

the guidelines: "a Court may determine that the application of the

guidelines would be unjust or inappropriate under the

circumstances." Code § 14.055(a). A judgment ordering child

support will not be disturbed on appeal absent a showing of a clear

abuse of discretion. Carpenter v. White, 624 S.W.2d 618, 619 (Tex.

App. 1981, no writ); Eggemeyer v. Eggemeyer, 535 S.W.2d 425, 427

(Tex. Civ. App. 1976), aff'd, 554 S.W.2d 137 (Tex. 1977). A trial

court abuses its discretion when it acts unreasonably or

arbitrarily, without reference to any guiding principles or rules.

Downer , 701 S.W.2d at 241 . The trial court may abuse its

discretion by ordering one to pay more support than he reasonably

can afford. Bacon v. Kouri, 696 S.W.2d 599 (Tex. App. 1985, no

writ). The trial court's judgment will not be reversed, however,

simply because the appellate court might disagree or might have set

a different figure, either higher or lower. Smallwood v.

Smallwood, 625 S.W.2d 75, 77 (Tex. App. 1981, no writ); Ramey v.

Ramey, 425 S.W.2d 900, 901 (Tex. Civ. App. 1968, writ dism'd).

Further, the amount of child support payments awarded by the

judgment will not be revised merely because the reviewing court

considers those payments too high or too low. Eggemeyer , 535

S.W.2d at 427 .

The child support award in this case is generous, but not

unprecedented, considering the father's resources. A $2,000.00 per

month child support order, representing 20% of the father's monthly

net resources of $10,000.00 has been upheld, partly because the

mental health needs of the child prevented the mother from working

full time and partly because of the father's affluent lifestyle and

substantial income. Anderson v. Anderson, 770 S.W.2d 92, 96 (Tex.

App. 1989, no writ). In a case decided before written guidelines

were promulgated, one court of appeals observed that "the Court

would be justified in requiring the parents to provide a standard

of living for their children commensurate with that which they have

and will continue to enjoy for themselves." Cooper v. Cooper, 513

S.W.2d 229, 234 (Tex. Civ. App. 1974, no writ).

Similarly, a $3,500.00 per month child support order (for

two children) has been characterized as conservative, but for the

fact that the father was also required to pay for summer camp, for

all medical, dental, orthodontic, and hospital bills for the

children, for medical insurance coverage, and for a term life

insurance policy on his life. Eikenhorst v. Eikenhorst, 746 S.W.2d

882, 886 (Tex. App. 1988, no writ). There was evidence that

appellant in the present case earns more than four times the

$220,000.00 per year reported as the income of the obligor in

Eikenhorst .

In light of the evidence in the record and the factors

the trial court was entitled to consider in reaching its decision,

we cannot conclude that the trial court abused its discretion in

ordering the child support award. The amount of child support is,

of course, always subject to modification as circumstances of the

child and parents may change. Appellant's fifth point of error is

overruled.

In his eighth point of error, appellant argues that the

trial court erred in finding him to be the father of the child

because there was insufficient evidence to support the finding. He

has cited no authority for this portion of his argument. A

contention so inadequately presented is waived. Rayburn v. Giles,

182 S.W.2d 9 (Tex. Civ. App. 1944, writ ref'd). In default

judgments, moreover, the defaulting party has admitted the facts

properly pleaded and the justice of the opponent's claims.

Paramount Pipe and Supply Co. v. Muhr, 749 S.W.2d 491, 496 (Tex.

1988). Thus, appellant has admitted, as a matter of law, the

paternity allegation in the pleadings.

In addition, appellee testified that appellant is the

father, that appellant admits that he is the father, and that he

had sent her money for the child's apnea monitor. Appellant's

eighth point of error is overruled.

In light of our holding, appellant's remaining point of

error, regarding attorney's fees, is overruled. The judgment of

the trial court is affirmed.

Marilyn Aboussie, Justice

[Before Chief Justice Carroll, Justices Aboussie and Jones]

Affirmed

Filed: June 12, 1991

[Do Not Publish]

1. All references to rules are to Texas Rules of Civil

Procedure Annotated (1979 & Supp. 1991).