Putz, Rodney Fred v. Putz, Sharon Jinks

Opinion issued October 10, 2002 In The Court of Appeals For The First District of Texas NO. 01-01-00923-CV RODNEY FRED PUTZ, Appellant V. SHARON JINKS PUTZ, Appellee On Appeal from the 335th District Court of Burleson County, Texas Trial Court Cause No. 21,537 O P I N I O N This appeal is brought from the trial court's decision, in a post-divorce proceeding, to grant an "Order Enforcing Entry of Judgment Against Rodney Fred Putz [appellant] as Constructive Trustee for Sharon Jinks Putz [appellee]." Appellant presents three issues on appeal. He argues that: (1) the trial court erred in ordering substituted service because appellee failed to file a proper motion and supporting affidavit as required by Tex. R. Civ. P. 106(b); (2) the default judgment is void because the trial court lacked personal jurisdiction over appellant as he was not properly served with process; and (3) the default judgment is void because the trial court's plenary power had expired. We reverse. Facts Appellant and appellee sought a final decree of divorce, which was entered on May 15, 1998. Appellee filed a "Motion for Entry of Qualified Domestic Relations Order (QDRO) and for Entry of Judgment Against Rodney Putz as Constructive Trustee for Sharon Putz" on April 14, 2000. The trial court signed the QDRO on April 27, 2000, which was subsequently amended on May 3, 2000. Appellee filed another "Motion to Enforce Entry of Judgment Against Rodney Putz as Constructive Trustee for Sharon Putz" on May 30, 2000. Apparently unable to complete service, appellee filed a "Motion for Substituted Service" on February 7, 2001, without any supporting affidavits. The trial court granted appellee's motion on March 1, 2001. In compliance with the order granting substituted service, Mary Hitner Putz, appellant's then alleged wife, was served at her home in Tennessee, on April 12, 2001. Within a few weeks, Mary Putz sent a letter to the trial court clerk, indicating appellant no longer lived with her and the two were seeking a divorce. The trial court conducted a default judgment hearing on June 20, 2001, which resulted in the entry of an "Order Enforcing Judgment" and a second amended QDRO. Appellant filed notice of restricted appeal on September 26, 2001, three months later. Discussion Motion for Substituted Service In issue one, appellant contends the trial court erred in ordering substituted service because appellee failed to file an affidavit stating locations and other facts showing previous attempts at personal service as required by rule 106(b), which states: Upon motion supported by affidavit stating the location of the defendant's usual place of business or usual place of abode or other place where the defendant can probably be found and stating specifically the facts showing that service has been attempted . . . at the location named in such affidavit but has not been successful, the court may authorize service (1) by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in such affidavit, or (2) in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit. Tex. R. Civ. P. 106(b). Rule 106(b) explicitly requires an affidavit showing attempted service before authorizing substituted service. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). The record does not include an affidavit reflecting either attempted service or where the appellant could be found. Strict compliance with the Rules of Civil Procedure relating to the issuance, service, and return of citation must be shown or the attempted service of process will be rendered invalid and of no effect. Olympia Marble & Granite v. Mayes, 17 S.W.3d 437, 444 (Tex. App.--Houston [1st Dist.] 2000, no pet.) (quoting Wilson, 800 S.W.2d at 836); See also Medford v. Salter, 747 S.W.2d 519, 520 (Tex. App.--Corpus Christi 1988, no writ) (stating affidavit in support of motion for substituted service of citation did not show specific facts that service had been attempted and was deficient). A direct attack on a judgment by restricted appeal must: (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the hearing that resulted in the judgment made the subject of the complaint; (4) who did not file a post-judgment motion, request for findings of fact and conclusions of law, or other notice of appeal; and (5) the error that forms the basis of the complaint must be apparent on the face of the record. Tex. R. App. P. 30; See also Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). Appellant satisfies the first four criteria; thus, we must determine if the error complained of is apparent from the face of the record. Appellee's motion for substituted service purported to include "the affidavit of Sharon Junks [sic] Putz, stating facts that service of citation by publication on Rodney Fred Putz is authorized." However, we find no affidavit in the record and only the trial court's order suggests compliance with Rule 106(b). In a direct attack on a default judgment, there is no presumption in favor of valid issuance, service, or return of citation. Mayes, 17 S.W.3d at 444. Therefore, we hold that, the absence of an affidavit (from the record) renders appellant's substituted service of process invalid. However, appellee testified at the hearing on her motion for substituted service that service of process on Mary Putz was reasonably calculated to give appellant adequate notice. This argument does not address the affidavit requirement explicit in rule 106(b). Rather, appellee's argument was addressed in Wilson, when the court noted that, prior to the 1981 change in Rule 106(b) (express requirement for supporting affidavit to effect motion to substitute service), substitute service was permissible where the proponent of service presented probative evidence. Wilson, 800 S.W.2d at 836. Because the rule now demands an affidavit "demonstrating the necessity for other than personal service," we hold that the substituted service was invalid based on the face of the record. Id. We sustain point of error one. Default Judgment Appellant argues that the default judgment is void because the trial court lacked personal jurisdiction. "Jurisdiction is dependant upon citation issued and served in a manner provided for by law." Id. The trial court did not have personal jurisdiction over appellant, because the appellee did not comply with the statutory requirement for substituted service. Id at 836-37. We sustain point of error two, and, thus, do not reach point of error three. Conclusion Because the trial court's judgment is void, we vacate the judgment and dismiss the case. Tex. R. App. P. 43.2(e). Frank C. Price Justice Panel consists of Justices Taft, Alcala, and Price. (1) Do not publish. Tex. R. App. P. 47. (2) 1. The Honorable Frank C. Price, former Justice, Court of Appeals, First District of Texas at Houston, participating by assignment. 2.