Jacqueline Zavala v. Danny R. Schexnayder, Jr.

• Court: Court of Appeals of Texas
• Decided: December 9, 2009
• Docket: 04-09-00318-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-09-00318-CV

Jacqueline ZAVALA, Appellant

v.

Danny R. SCHEXNAYDER, Jr., Appellee

From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2009-CI-00007 Honorable Andy Mireles, Judge Presiding

Opinion by: Rebecca Simmons, Justice

Sitting: Phylis J. Speedlin, Justice Rebecca Simmons, Justice Steven C. Hilbig, Justice

Delivered and Filed: December 9, 2009

REVERSED AND REMANDED

This is an appeal from a divorce decree dissolving the marriage of Appellant Jacqueline

Zavala and Appellee Danny Schexnayder. On appeal, Zavala asserts the default judgment

should be set aside because of (1) defective service and (2) the default divorce was not recorded

by a court reporter. Because we conclude that service was defective, we reverse the judgment of

the trial court and remand this matter for further proceedings consistent with this opinion. 04-09-00318-CV

FACTUAL BACKGROUND

On January 2, 2009, Schexnayder filed a petition for divorce in Bexar County, Texas.

The Bexar County District Clerk’s Office prepared a citation and delivered it to counsel for

Schexnayder. Schexnayder’s counsel mailed the citation, with an attached petition, to Zavala.

At the time, Zavala was residing in El Paso, Texas with the couple’s three children. The record

reflects that Zavala received and signed for the package containing the citation and petition on

January 22, 2009. However, the “Officer’s Return” portion of the citation was never signed.

Consequently, a notary public did not verify the “Officer’s Return.” Zavala did not file an

answer or respond to the citation.

On March 10, 2009, Schexnayder obtained a default divorce. The divorce decree made

Schexnayder the joint conservator with the right to determine the residence of the couple’s

children and awarded Zavala visitation rights. Zavala received a copy of the default divorce

decree in April and filed a motion for new trial on the basis of defective service. On May 15,

2009, Zavala’s motion for new trial was denied. This appeal followed.

DEFECTIVE SERVICE

The Texas Rules of Civil Procedure relating to the issuance, service and return of citation

are generally regarded as mandatory. Wilson v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Benefit

Planners, L.L.P. v. RenCare, Ltd, 81 S.W.3d 855, 858 (Tex. App.—San Antonio 2002, pet.

denied). A party must affirmatively show compliance with the rules or the attempted service of

process is rendered invalid and of no effect. Benefit Planners, 81 S.W.3d at 858. More

specifically, “[v]irtually any deviation will be sufficient to set aside a default judgment on

appeal.” Becker v. Russell, 765 S.W.2d 899, 900 (Tex. App.—Austin 1989, no writ) (citing

McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965)). “No presumptions in favor of valid issuance,

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service, and return are made, and the record must affirmatively show strict compliance with the

rules.” Bautista v. Bautista, 9 S.W.3d 250, 251 (Tex. App.—San Antonio 1999, no pet.)

(emphasis original). Rule 107 of the Texas Rules of Civil Procedure requires that a return of

citation be verified by an authorized person. See TEX. R. CIV. P. 107 (“The return of the citation

by an authorized person shall be verified.”). The term “verified,” for purposes of Rule 107,

requires some form of “an acknowledgment of the instrument before a notary public.” Bautista,

9 S.W.3d at 251; Frazier v. Dikovitsky, 144 S.W.3d 146, 149 (Tex. App.—Texarkana 2004, no

pet.). In the present case, although the envelope containing the citation was delivered to and

received by Zavala, the record does not contain a verified return or any type of documentation

attached to the return that can be considered a verification. Id; see also TEX. R. CIV. P. 107.

Because the return was not verified, it did not comply with Rule 107. Bautista, 9 S.W.3d at 251.

Because Schexnayder’s defective service is dispositive in this matter, we need not address

Zavala’s remaining issues. See TEX. R. APP. P. 47.1 (requiring concise opinions addressing only

those issues “necessary to find disposition of the appeal”). Accordingly, the judgment of the trial

court is reversed and this case is remanded to the trial court for further proceedings consistent

with this opinion.

Rebecca Simmons, Justice

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