COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ————————————
No. 08-24-00389-CV ————————————
Primitivo Torres-Martinez, Appellant
v.
Brenda M. Torres, Appellee
On Appeal from the 73rd District Court Bexar County, Texas Trial Court No. 2024-CI-02056
M E MO RA N D UM O PI NI O N
Appellant Primitivo Torres-Martinez filed this restricted appeal challenging a default final
decree of divorce granted to Appellee Brenda Torres. 1 Because we hold that there is error on the
face of the record, we reverse and remand to the trial court.
1 This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code Ann. § 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our own. See Tex. R. App. P. 41.3. I. BACKGROUND Brenda filed a petition for divorce, requesting that process be served on Primitivo at one
of two addresses in Milwaukee, Wisconsin. In addition to dissolution of the marriage, Brenda
requested that she and Primitivo be appointed joint managing conservators of their two minor
children and that she be granted the exclusive right to designate their primary residence. Brenda
also sought a division of property, postdivorce maintenance, child support, medical and dental
support, and attorney’s fees. The clerk issued citation. Although the citation included a return of
service form to be completed, the process server instead filed an affidavit stating that he served
Primitivo with the original petition for divorce at an address in Milwaukee, Wisconsin. Tex. R.
Civ. P. 107(a) (“The return may, but need not, be endorsed on or attached to the citation.”).
Primitivo did not file an answer or otherwise appear.
At the final hearing, Brenda appeared in person and was represented by counsel. Primitivo
did not appear. The evidence presented consisted solely of Brenda’s testimony which spans less
than four pages of the record. She testified about the names of herself, her husband and two minor
children; her residence in Texas and Bexar County; that she is not pregnant; that neither she nor
Primitivo had filed for bankruptcy; that the marriage has become insupportable; that Primitivo was
making more than $80,000 per year when they were living together 2; that she cannot work full-
time because she is being treated for cancer and needs surgery; and that they have no property
other than personal effects.
That same day, the trial court signed the final decree of divorce, finding that it had
jurisdiction over the case and parties and that Primitivo was served with citation. The trial court
appointed Brenda the sole managing conservator of the minor children, awarded Primitivo
2 According to Brenda’s petition, the parties stopped living together in 2017, seven years before the hearing.
2 possession at times mutually agreed on by the parties, and ordered Primitivo to pay monthly
obligations as follows: $1,079 in child support, $400 for medical and dental support, and $1,079
in spousal maintenance. Finally, the decree awarded Brenda a $3000 judgment for attorney’s fees.
Primitivo filed this restricted appeal. In his first issue, Primitivo argues that the trial court
lacked jurisdiction over him for two reasons: because the return of service was fatally defective
and because Brenda did not plead or prove grounds giving the court jurisdiction over him as a
nonresident. In his second issue, Primitivo argues that there is legally and factually insufficient
evidence to support the default judgment.
II. ANALYSIS A. Restricted appeal
To prevail in a restricted appeal, an appellant must establish that: (1) the notice of restricted
appeal was filed within six months after the judgment was signed; (2) he was a party to the
underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment
complained of and did not timely file any post-judgment motions or requests for findings of fact
and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Tex. R. App. P. 30. The face of the record, for the
purposes of a restricted appeal, consists of all papers before the trial court when it rendered its
default judgment. Id. at 848–49.
The default judgment in this case was signed on April 30, 2024, and Primitivo filed his
notice of restricted appeal on September 30, 2024, within six months of the default judgment.
Primitivo did not appear at or participate in the final hearing, and he filed no post-judgment
motions or requests for findingsof fact or conclusions of law. Accordingly, the first three elements
for a restricted appeal are met, and we focus our analysis on whether Primitivo has established that
error is apparent on the face of the record.
3 B. Personal jurisdiction
In his first issue, Primitivo argues that the trial court did not acquire personal jurisdiction
over him. “Personal jurisdiction is composed of two elements: (1) the defendant must be amenable
to the jurisdiction of the court, and (2) the plaintiff must validly invoke that jurisdiction by valid
service of process on the defendant.” Guardianship of Fairley, 650 S.W.3d 372, 379–80
(Tex. 2022). Primitivo challenges both of these elements. Because it requires that we vacate all
aspects of the final decree of divorce and is dispositive in this case, we discuss only the second
element—valid service of process. 3
C. Service of citation
A trial court does not have jurisdiction over a party who was not properly served. Wilson
v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). In a direct attack of a default judgment, we “indulge
no presumption in favor of valid issuance, service, or return of citation.” See Spanton v. Bellah,
612 S.W.3d 314, 316–17 (Tex. 2020) (citing Uvalde Country Club v. Martin Linen Supply Co.,
Inc., 690 S.W.2d 884, 885 (Tex. 1985)). Failure to strictly comply with the requirements for
citation, service, and return results in a void judgment. See Tex. R. Civ. P. 124 (prohibiting
rendition of a default judgment unless there is proof of proper service). “Virtually any deviation
will be sufficient to set aside a default judgment in a restricted appeal.” Dolly v. Aethos Commc’ns
3 In a divorce case, the trial court can enter some orders, such as child custody and dissolution of the marriage, even if a nonresident defendant is not amenable to jurisdiction (the first element of personal jurisdiction), but it cannot enter any orders if the defendant is not properly served (the second element of personal jurisdiction). Velasco v. Ayala, 312 S.W.3d 783, 798 (Tex. App.—Houston [1st Dist.] 2009, no pet.). (“Although a divorce proceeding is characterized as quasi in rem and the Texas Family Code allows a trial court to issue a decree of divorce and a decree as to child custody without personal jurisdiction over all the parties, such designation does not dispense with the requirement that jurisdiction be invoked by adequate notice to a non-resident spouse.”); Heth v. Heth,
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS ————————————
No. 08-24-00389-CV ————————————
Primitivo Torres-Martinez, Appellant
v.
Brenda M. Torres, Appellee
On Appeal from the 73rd District Court Bexar County, Texas Trial Court No. 2024-CI-02056
M E MO RA N D UM O PI NI O N
Appellant Primitivo Torres-Martinez filed this restricted appeal challenging a default final
decree of divorce granted to Appellee Brenda Torres. 1 Because we hold that there is error on the
face of the record, we reverse and remand to the trial court.
1 This case was transferred pursuant to the Texas Supreme Court’s docket equalization efforts. Tex. Gov’t Code Ann. § 73.001. We follow the precedent of the Fourth Court of Appeals to the extent it might conflict with our own. See Tex. R. App. P. 41.3. I. BACKGROUND Brenda filed a petition for divorce, requesting that process be served on Primitivo at one
of two addresses in Milwaukee, Wisconsin. In addition to dissolution of the marriage, Brenda
requested that she and Primitivo be appointed joint managing conservators of their two minor
children and that she be granted the exclusive right to designate their primary residence. Brenda
also sought a division of property, postdivorce maintenance, child support, medical and dental
support, and attorney’s fees. The clerk issued citation. Although the citation included a return of
service form to be completed, the process server instead filed an affidavit stating that he served
Primitivo with the original petition for divorce at an address in Milwaukee, Wisconsin. Tex. R.
Civ. P. 107(a) (“The return may, but need not, be endorsed on or attached to the citation.”).
Primitivo did not file an answer or otherwise appear.
At the final hearing, Brenda appeared in person and was represented by counsel. Primitivo
did not appear. The evidence presented consisted solely of Brenda’s testimony which spans less
than four pages of the record. She testified about the names of herself, her husband and two minor
children; her residence in Texas and Bexar County; that she is not pregnant; that neither she nor
Primitivo had filed for bankruptcy; that the marriage has become insupportable; that Primitivo was
making more than $80,000 per year when they were living together 2; that she cannot work full-
time because she is being treated for cancer and needs surgery; and that they have no property
other than personal effects.
That same day, the trial court signed the final decree of divorce, finding that it had
jurisdiction over the case and parties and that Primitivo was served with citation. The trial court
appointed Brenda the sole managing conservator of the minor children, awarded Primitivo
2 According to Brenda’s petition, the parties stopped living together in 2017, seven years before the hearing.
2 possession at times mutually agreed on by the parties, and ordered Primitivo to pay monthly
obligations as follows: $1,079 in child support, $400 for medical and dental support, and $1,079
in spousal maintenance. Finally, the decree awarded Brenda a $3000 judgment for attorney’s fees.
Primitivo filed this restricted appeal. In his first issue, Primitivo argues that the trial court
lacked jurisdiction over him for two reasons: because the return of service was fatally defective
and because Brenda did not plead or prove grounds giving the court jurisdiction over him as a
nonresident. In his second issue, Primitivo argues that there is legally and factually insufficient
evidence to support the default judgment.
II. ANALYSIS A. Restricted appeal
To prevail in a restricted appeal, an appellant must establish that: (1) the notice of restricted
appeal was filed within six months after the judgment was signed; (2) he was a party to the
underlying lawsuit; (3) he did not participate in the hearing that resulted in the judgment
complained of and did not timely file any post-judgment motions or requests for findings of fact
and conclusions of law; and (4) error is apparent on the face of the record. Alexander v. Lynda’s
Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Tex. R. App. P. 30. The face of the record, for the
purposes of a restricted appeal, consists of all papers before the trial court when it rendered its
default judgment. Id. at 848–49.
The default judgment in this case was signed on April 30, 2024, and Primitivo filed his
notice of restricted appeal on September 30, 2024, within six months of the default judgment.
Primitivo did not appear at or participate in the final hearing, and he filed no post-judgment
motions or requests for findingsof fact or conclusions of law. Accordingly, the first three elements
for a restricted appeal are met, and we focus our analysis on whether Primitivo has established that
error is apparent on the face of the record.
3 B. Personal jurisdiction
In his first issue, Primitivo argues that the trial court did not acquire personal jurisdiction
over him. “Personal jurisdiction is composed of two elements: (1) the defendant must be amenable
to the jurisdiction of the court, and (2) the plaintiff must validly invoke that jurisdiction by valid
service of process on the defendant.” Guardianship of Fairley, 650 S.W.3d 372, 379–80
(Tex. 2022). Primitivo challenges both of these elements. Because it requires that we vacate all
aspects of the final decree of divorce and is dispositive in this case, we discuss only the second
element—valid service of process. 3
C. Service of citation
A trial court does not have jurisdiction over a party who was not properly served. Wilson
v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990). In a direct attack of a default judgment, we “indulge
no presumption in favor of valid issuance, service, or return of citation.” See Spanton v. Bellah,
612 S.W.3d 314, 316–17 (Tex. 2020) (citing Uvalde Country Club v. Martin Linen Supply Co.,
Inc., 690 S.W.2d 884, 885 (Tex. 1985)). Failure to strictly comply with the requirements for
citation, service, and return results in a void judgment. See Tex. R. Civ. P. 124 (prohibiting
rendition of a default judgment unless there is proof of proper service). “Virtually any deviation
will be sufficient to set aside a default judgment in a restricted appeal.” Dolly v. Aethos Commc’ns
3 In a divorce case, the trial court can enter some orders, such as child custody and dissolution of the marriage, even if a nonresident defendant is not amenable to jurisdiction (the first element of personal jurisdiction), but it cannot enter any orders if the defendant is not properly served (the second element of personal jurisdiction). Velasco v. Ayala, 312 S.W.3d 783, 798 (Tex. App.—Houston [1st Dist.] 2009, no pet.). (“Although a divorce proceeding is characterized as quasi in rem and the Texas Family Code allows a trial court to issue a decree of divorce and a decree as to child custody without personal jurisdiction over all the parties, such designation does not dispense with the requirement that jurisdiction be invoked by adequate notice to a non-resident spouse.”); Heth v. Heth, 661 S.W.2d 303, 305 (Tex. App.— Fort Worth 1983, writ dism’d) (because there was no valid service, the court held that the trial court “was without power to act even with respect to the in rem aspects of the divorce and the decree must be declared void in its entirety”).
4 Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.—Dallas 2000, no pet.). Whether service strictly complies
with the applicable rules and other legal requirements for service of process is a question of law
which we review de novo. Turbo Restaurants, LLC v. Reid’s Refrigeration Inc., 657 S.W.3d 490,
495 (Tex. App.—El Paso 2022, no pet.).
Primitivo argues that the return of service is defective because it reflects only that the
petition, and not the citation, was served. We agree. “Upon the filing of the petition, the clerk,
when requested shall forthwith issue a citation[.]” Tex. R. Civ. P. 99(a). “Unless the citation or
court order otherwise directs” both the citation and petition must be served on the defendant.
Tex. R. Civ. P. 106(a)(1). The petition informs the defendant of plaintiff’s claims and the relief
requested. Perez v. Briercroft Serv. Corp., 809 S.W.2d 216, 218 (Tex. 1991) (“Ultimately, the
purpose of pleadings is to give the adversary parties notice of each parties claims and defenses, as
well as notice of the relief sought.”). The citation, however, serves a different purpose; among
other things, it notifies a defendant of the deadline to file an answer and the consequences for
failing to do so. Tex. R. Civ. P. 99(b). Compliance with the requirement to serve both documents
can be verified by the return of service, which must include “a description of what was served.”
Id. 107(b)(3), 108 (requiring that the return of service be completed according to Rule 107 when
defendant is served in another state).
In this case, the process server attested in his return of service affidavit as follows:
The following came to hand on March 14, 2024 at 2:15pm CST,
ORIGINAL PETITION FOR DIVORCE (RE: In The Matter of The Marriage of Brenda M. Torres and Primitivo Torres-Martinez and in The Interest of C.M.T. AND V.M.T., CHILDREN)
and was executed at 1116 S. 29th Street, Milwaukee, WI within the county of MILWAUKEE, WISCONSIN at 5:35 PM on Thu, Mar 14 2024, by delivering a true copy to the within named
PRIMITIVO TORRES-MARTINEZ
5 “The return of service is not a trivial, formulaic document.” Primate Const., Inc. v. Silver,
884 S.W.2d 151, 152 (Tex. 1994) (per curiam). The recitations in the return have “long been
considered prima facie evidence of the facts recited therein.” Id. Here, the return is evidence that
Primitivo was served with the petition, but the record contains no evidence that he was also served
with the citation. Id. at 153 (holding that proper service was not shown on the record when the
return stated that the defendant was served with the original petition instead of the second amended
petition); Matter of Marriage of Beall, No. 04-22-00070-CV, 2023 WL 3487035, at *3
(Tex. App.—San Antonio May 17, 2023, pet. denied) (mem. op.) (vacating a default decree when
the return of service did not state that a copy of the citation and petition were served in accordance
with the court’s order for alternate service).
Without evidence that Primitivo was served with citation, the trial court did not have
jurisdiction over him and entry of a judgment is error on the face of the record. Primate Const.,
Inc, 884 S.W.2d at 153; In re C. L. W., 485 S.W.3d 537, 540 (Tex. App.—San Antonio 2015, no
pet.) (“[D]effective service of process constitutes error apparent on the face of the record.”).
Because we vacate the judgment for lack of jurisdiction, we do not reach Primitivo’s other
issues. 4
4 Primitivo also argued that he is not amenable to the jurisdiction of Texas courts. In most instances, filing an appeal constitutes a general appearance by which the defendant subjects himself to the jurisdiction of Texas courts. Boyd v. Kobierowski, 283 S.W.3d 19, 24 (Tex. App.—San Antonio 2009, no pet.) (“when a non-resident defendant ask[s] for an adjudication, even if only to contest service, the defendant enters a general appearance”); Tex. R. Civ. P. 123 (“Where the judgment is reversed on appeal or writ of error for want of service, or because of defective service . . ., the defendant shall be presumed to have entered his appearance[.]”). However, notwithstanding this rule, Rule 120a allows defendants to file a special appearance challenging personal jurisdiction upon remand after reversal for lack of service. Boyd, 283 S.W.3d at 24; Tex. R. Civ. P. 120a (1).
6 III. CONCLUSION Because there is no evidence that Primitivo was served with citation, he has shown error
on the face of the record. We reverse the judgment of the trial court and remand for further
proceedings.
MARIA SALAS MENDOZA, Chief Justice
January 15, 2026
Before Salas Mendoza, C.J., Palafox and Soto, JJ.