Saundra L. Sanders v. Mark E. Sanders

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 “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

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).

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 . § 6.408

(West Supp. 2011). Rule 106(a)

authorizes service by delivering the citation, with a copy of the petition, to

the respondent in person or by registered or certified mail, return receipt

requested. Tex. R. Civ. P . 106(a).

When service under one of these two methods fails, the trial court, “[u]pon

motion supported by affidavit,” may authorize service “in any other manner that

the affidavit or other evidence before the court shows will be reasonably

effective to give the [respondent] notice of the suit.” Tex.

R. Civ. P . 106(b)(2). The

supporting affidavit must state (1) “the location of the [respondent’s] usual

place of business or usual place of abode or other place where [she] can

probably be found” and (2) the specific facts showing that traditional service

has been attempted “at the location named in such affidavit but has not been

successful.” Tex. R. Civ. P . 106(b).

An affidavit that is conclusory or otherwise insufficient does not

support the authorization of substituted service. See Wilson ,

800 S.W.2d at 836 .

Mark’s motion for substituted

service asserted that reasonably effective notice of the divorce proceeding

could be given to Saundra by having an authorized person attach “a copy of the

citation with a copy of the petition to the front entrance of [her] place of

abode located at 22319 SPRING CROSSING DR, SPRING, TX 77373.” To support his motion, Mark attached an

affidavit setting forth the following dates, times, and locations at which the

process server was unable to personally serve Saundra.

Saundra does not dispute that the house at 22319

Spring Crossing Drive was her usual place of abode.

The process server’s affidavit was

sufficient to justify substituted service under rule 106(b) because it (1)

stated Saundra’s place of abode and (2) indicated that at least one attempt to

personally serve her at that address was unsuccessful. See Tex. R. Civ. P . 106(b); see also Pickersgill v. Williams , No. A14-93-00424-CV,

1994 WL 2011 , at *3 - 4 (Tex. App.—Houston [14th Dist.] Jan. 6, 1994, writ

denied) (mem. op.) (affidavit referencing “the address I believe to be his

place of residence” was sufficient). The

particular method of service ordered in this case, i.e., taping the citation

and petition to the front entrance of the address identified as the defendant’s

place of abode, generally is reasonably effective to give notice to the

defendant of the lawsuit. Cf. Rowsey v. Matetich , No.

03-08-00727-CV, 2010 WL 3191775 , at *4 (Tex. App.—Austin Aug. 12, 2010, no

pet.); Ratcliff v. Ratcliff , No.

09-09-00138-CV, 2010 WL 1087517 , at *1 (Tex. App.—Beaumont Mar. 25, 2010, no

pet.); Williams v. Grafflin , No.

11-05-00138-CV, 2006 WL 3238426 , at *2 (Tex.

App.—Eastland Nov. 9, 2006, no pet.); Pettigrew

v. Recoveredge, L.P. , No. 05-97-00239-CV, 1997 WL 466518 , at *2 (Tex. App.—Dallas

Aug. 15, 1997, no writ).

Saundra does not contend

otherwise. Rather, as her first issue on

appeal has been narrowly crafted, she contends only that this manner of substituted

service was inappropriate here because she lived with Mark at the time he

sought the divorce and he therefore had the opportunity to, and did, remove the

citation and petition. There is no

evidence on the face of this record to support Saundra’s assertion that Mark actually

interfered with the substituted service ordered by the trial court. In the absence of such evidence, we decline

to announce a rule declaring the trial court’s order to be in error. We also note Mark’s testimony at the default

hearing that he and Saundra were no longer living together. We therefore conclude that Saundra has failed

to show error on the face of the record regarding her claim that she was not

served with citation.

We further hold that the face of

the record does not establish error with respect to Saundra’s claim that she

did not receive notice of the default hearing.

Mark had no duty to notify Saundra before taking a default judgment when

the substituted service authorized by the trial court was reasonably calculated

to apprise Saundra of the pendency of the divorce proceeding, and she

nonetheless failed to answer or appear. See Brooks v. Assocs. Fin. Servs. Corp. ,

892 S.W.2d 91, 94 (Tex. App.—Houston [14th Dist.] 1994, no pet.).

We overrule Saundra’s first

issue.

Division of Marital Property

In her second and third issues,

Saundra argues that the default judgment should be reversed because the

evidence is legally and factually insufficient to support the trial court’s

division of the marital estate. She

asserts that the absence of any evidence of the character and value of the

parties’ assets precluded the trial court from awarding Mark any community

property. Although Saundra does not

specifically identify any community asset that she contends was improperly

awarded to Mark, she asserts generally that the parties’ marital estate

included a home, two cars, and various pieces of furniture.

While we agree that the trial

court’s property division must be supported by sufficient evidence, see Wilson , 132 S.W.3d at 536 , we

disagree that there is any abuse of discretion in this case. Under the heading “Division of Marital

Estate,” the divorce decree orders only that “personal effects of the parties

are awarded to the party having possession.”

“Personal effects” are defined generally to mean articles of personal

property “bearing intimate relation or association to [the] person.” First

Methodist Episcopal Church S. v. Anderson , 110 S.W.2d 1177, 1183 (Tex. Civ.

App.—Dallas 1937, writ dismissed); see

Teaff v. Ritchey , 622 S.W.2d 589 , 591 − 92 (Tex. App.—Amarillo 1981, no writ) (defining “personal effects” to

include items such as “clothes, toilet articles, eye glasses and dentures”). The decree does not expressly award either

party the community assets identified by Saundra, i.e., the parties’ home,

cars, and furniture. Moreover, as these

items are not personal articles having an intimate association with Mark or

Saundra individually, neither are they included in foregoing definition of

“personal effects” or awarded under the divorce decree to the party having

possession of them. See Teaff , 622 S.W.2d at 592 (insurance policies are significant

items of intangible personal property, not personal effects). We therefore hold that there is no error on

the face of the record with respect to the trial court’s division of property.

As Mark points out, Saundra may

seek a post-divorce division of community property that was not divided in the

divorce decree. See Tex. Fam. Code Ann .

§§ 9.201 (“Either former spouse may file a suit as provided by this subchapter

to divide property not divided or awarded to a spouse in a final decree of

divorce or annulment.”), 9.203 (West 2006) (“If a court of this state failed to

dispose of property subject to division in a final decree of divorce or

annulment even though the court had jurisdiction over the spouses or over the

property, the court shall divide the property in a manner that the court deems

just and right . . . .”); see also

Kadlecek v. Kadlecek , 93 S.W.3d 903, 909 (Tex. App.—Austin 2002, no pet.)

(acknowledging that sections 9.201 and 9.203 allow for post-divorce division of

community property not divided in original decree).

We overrule Saundra’s second and

third issues regarding the trial court’s property division.

Agreement of the Parties

Buried within Saundra’s

second issue is a challenge to that part of the divorce decree finding that

“the parties have entered into a written agreement as contained in this decree

by virtue of having approved this decree as to both form and substance. To the extent permitted by law, the parties

stipulate the agreement is enforceable as a contract.” She contends that this provision will

obligate her to comply with an agreement she did not make. This Court may only reverse a judgment on appeal

if the error complained of “probably caused the rendition of an improper

judgment.” Tex. R. App. P . 44.1(a)(1).

Even if the trial court erred in finding an agreement between the parties

as to the terms of the divorce decree and its enforceability, the divorce

decree is the trial court’s final judgment and is enforceable as such. Cf

Hagen v. Hagen , 282 S.W.2d 899 , 902 (Tex. 2009). Thus, any error in finding the existence of

an enforceable agreement is not reversible error, and we overrule that part of

Saundra’s second issue contending otherwise.

Conclusion

Having concluded that no

error appears on the face of this record, we affirm the trial court’s default

judgment granting a final decree of divorce.

Harvey

Brown

Justice

Panel

consists of Justices Jennings, Sharp, and Brown.