Reverse and Remand; Opinion Filed June 25, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00377-CV
MARCO ANTONIO GARDUZA, Appellant
V.
MARISOL PEREZ CASTILLO, Appellee
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-10-21452-R
MEMORANDUM OPINION
Before Justices FitzGerald, Fillmore, and Evans
Opinion by Justice Evans
Marco Garduza appeals certain provisions of his divorce decree including those
provisions addressing child support, child support arrears, a reservation for cash medical support,
and lack of any geographic restriction on his child’s residence. Appellant contends that the trial
court abused its discretion and requests that this Court reverse and remand because he was not
served with the amended petition that substantially changed appellee’s requests concerning child
support and medical support provisions in the decree, and the provisions for arrearages and lack
of any geographic restriction. We reverse the judgment of the trial court and remand the case for
a new trial.
BACKGROUND
Appellant and appellee married in 2006 and had one child, A.G.G., in 2007. On
December 9, 2010, appellee filed pro se a fill-in-the-blank petition for divorce. In regard to
A.G.G., the divorce petition provided that: “My spouse and I agree to try to make an agreement
about custody, visitation, and support. If we cannot make an agreement, I want the court to
make decisions on these issues that are best for our children.” On December 13, 2010, appellant
received a copy of the petition and executed a two-page waiver. The waiver provisions on the
page immediately above appellant’s notarized signature provided as follows:
Warning: This form waives all of your legal rights in this case.[ 1]
DO NOT sign it if you want to know what will be ordered in your case.
You can waive service of process, but keep your legal rights by filing an
Answer, instead. You can find an Answer form in the family law section
of www.TexasLawhelp.org.
4. Global Waiver
I agree that the court can make decisions in this case without further notice to me.
5. The Respondent swears under oath:
***
“I do not want a peace officer or process server to give me another copy of the
Petition for Divorce. I waive my right to the issuance and service of citation in
this case.
“I understand that by signing this form I am entering an appearance, and it is a
substitute for going to Court and telling the Court my side of the case. I do not
want testimony in this divorce recorded. And, I agree that a Judge, Associate
Judge, or appointed Referee of the Court may make decisions about my divorce,
even if the divorce should have been filed in another county or state.
***
“I agree that the court can make decisions in this case without further notice to
me.”
Subsequent to these filings, appellee retained counsel and filed a First Amended Petition for
Divorce on October 20, 2011. The amended petition was substantially different than the original
1
The top of each page contained the same warning framed in a box.
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petition and requested that appellee be appointed as conservator with the exclusive rights to
determine A.G.G.’s primary residence, and that appellant be ordered to provide child support and
medical support for A.G.G. On August 3, 2012, appellee filed a Second Amended Petition for
Divorce which requested the same relief as that in the First Amended Petition. Appellee did not
serve appellant with either amended petition but instead pleaded that appellant had “waived
service of process by waiver duly filed.” Neither of the amended petitions contained a
certification stating that it was served on appellant by a means permitted by rule 21a of the Texas
Rules of Civil Procedure.
On December 3, 2012, appellee appeared with her attorney at a default hearing on the
trial court’s uncontested prove-up docket. Based on the waiver that had been filed, appellee did
not provide notice of the hearing to appellant. Following the hearing, the trial court entered a
Final Decree of Divorce and Order Establishing Parentage. The decree orders, among other
things, that: (1) appellee has the exclusive right to designate the child’s primary residence
without regard to geographic location; (2) appellant will pay child support; (3) appellant has
twenty-six months of child support arrearage; and (4) appellee reserves the right to request that
appellant pay cash medical support.
Appellant filed a Motion for New Trial on December 21, 2013, but the motion failed to
allege any grounds for a new trial. The trial court held a hearing on February 7, 2013, at which
appellant appeared pro se and stated that he wanted to “fix the child support” and to “see if I can
get more days to see my daughter.” The trial court denied the motion as insufficient but advised
appellant to file a motion to modify the existing orders to address his issues. Appellant then filed
this appeal.
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ANALYSIS
A. Standard of Review
Most appealable issues in a family law case are evaluated under an abuse of discretion
standard. See In Re E.A.C., 162 S.W.3d 438, 441 (Tex. App—Dallas 2005, no pet.) (“We review
a trial court’s determination of child support under an abuse of discretion standard.”); Jacobs v.
Dobrei, 991 S.W.2d 462, 463 (Tex. App—Dallas 1999, no pet.) (“We give wide latitude to a trial
court’s decision on custody, control, possession and visitation matters. We reverse the trial
court’s decision only if it appears from the record as a whole that the trial court abused its
discretion.”). A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner, or when it acts without reference to any guiding principles. In re E.A.C., 162 S.W.3d at
441. Further, matters of service and notice are also governed by an abuse of discretion standard.
See Smith v. Smith, 241 S.W.3d 904 (Tex. App—Beaumont 2007, no pet.) (trial court abused its
discretion by refusing to set aside judgment because appellant was not served with second
amended petition).
B. Failure to Serve Amended Petitions on Appellant
In his first issue, appellant contends that the trial court erred by granting a default
judgment against appellant when he did not receive service of either of the amended petitions or
notice of the final hearing. Appellant received the original petition for divorce, but chose not to
file a formal answer and elected to file a form entitled “Waiver of Service.” The only waiver of
service in this form provides that appellant waived his “right to the issuance and service of
citation in this case.” The issuance and service of citation is only required for an original
petition. In re E.A., 287 S.W.3d 1, 4 (Tex. 2009). Thereafter neither issuance or service of
citation is required for subsequently amended petitions, just service pursuant to rule 21a of each
amended petition that requests more onerous relief. See TEX. R. CIV. P. 21a; In re E.A., 287
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S.W.3d at 4. Although the waiver could have included language waiving service of amended
petitions, there is no such language in the form signed by appellant. See In re J.P., 196 S.W.3d
434, 437 (Tex. App.—Dallas 2006, no pet.) (waiver of service not only of original petition but
amended petitions with language providing as follows: “I enter my appearance in this case for
all purposes and waive the issuance, service, and return of citation on me. I agree that the
Petition may be amended, and that the case may be taken up and considered by the Court without
further notice to me.”).
There is no dispute that the amended petitions were not served on appellant and neither
amended petition contained a certification of service on appellant as required by rule 21a. See
TEX. R. CIV. P. 21a. This failure to serve subsequently amended petitions by a method of service
permitted by rule 21a deprived appellant of actual notice of the significant change in the relief
requested against him. Further, because the failed service was due to no fault of appellant, we do
not infer constructive notice to him. See In re E.A., 287 S.W.3d at 5-6. Accordingly, on the face
of this record appellant was deprived of notice of the more onerous relief sought against him in
both amended petitions which lack of service he had not waived.
A defendant that never received the suit papers is generally entitled to a new trial without
any further showing when raised in a motion for new trial. Fidelity and Guar. Ins. Co. v.
Drewery Constr. Co., Inc., 186 S.W.3d 571, 574 (Tex. 2006) (per curiam) (citing Peralta v.
Heights Med. Ctr., Inc., 485 U.S. 80, 84 (1988)). This applies to a defendant who was never
served by rule 21a with more onerous amended petitions on which default judgment was granted.
See In re E.A., 287 S.W.3d at 3, 6 (Tex. 2009). Accordingly, appellant would be entitled to
reversal of the judgment and remand of the case for a new trial, if the error is properly before us
for our consideration.
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C. Preservation of Issue for Appeal
Appellant failed to insert any grounds into his form motion for new trial that he filed pro
se. He, therefore, failed to raise in the trial court any of the arguments which he raises here.
Ordinarily, an appellant must demonstrate that it made a timely request, objection, or motion
before the trial court and obtained a ruling to preserve error for appeal in accordance with Rule
33.1 of the Texas Rules of Appellate Procedure. In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003)
(“Under our Rules of Appellate Procedure, a party must present to the trial court a timely
request, motion, or objection, state the specific grounds therefor, and obtain a ruling.”), cert.
denied, 541 U.S. 1043 (2004). However, the Texas Supreme Court has decided that although a
defendant filed a motion for new trial that did not complain of the defective service of citation,
the defendant could properly raise the issue on appeal for the first time. Wilson v. Dunn, 800
S.W.2d 833, 837 (Tex. 1990) (observing that Rule 324 of the Texas Rules of Civil Procedure—
addressing prerequisites of appeal—does not require that a motion for new trial raise issues of
defective service for preservation of error); see also Benefit Planners, L.L.P. v. RenCare, Ltd., 81
S.W.3d 855, 857–58 (Tex. App.—San Antonio 2002, pet. denied) (holding defective service of
citation can be raised for first time on appeal); Arredondo v. State, 844 S.W.2d 869, 871 (Tex.
App.—Texarkana 1992, no writ) (holding that defective service of a notice of seizure and
intended forfeiture not proven to have been served by the State by certified mail as required by
statute could be raised for the first time on appeal by holding that “[i]t is well settled . . . that a
failure of service can be raised for the first time on appeal.”). Here, the face of the record
affirmatively reveals that neither amended petition was served on appellant pursuant to rule 21a
and neither party contends either was served on appellant. We conclude appellant may complain
on appeal for the first time of appellee’s failure to serve the more onerous amended petitions
which only had to be served pursuant to rule 21a.
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CONCLUSION
We resolve appellant’s first issue in his favor without reaching his remaining issues. See
TEX. R. APP. P. 44.1. We reverse the trial court’s judgment and remand the case to the trial court
for further proceedings.
/ David Evans/
DAVID EVANS
130377F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
MARCO ANTONIO GARDUZA, Appellant On Appeal from the 254th Judicial District
Court, Dallas County, Texas
No. 05-13-00377-CV V. Trial Court Cause No. DF-10-21452-R.
Opinion delivered by Justice Evans.
MARISOL PEREZ CASTILLO, Appellee Justices FitzGerald and Fillmore
participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for a new trial.
It is ORDERED that appellant MARCO ANTONIO GARDUZA recover his costs of this
appeal from appellee MARISOL PEREZ CASTILLO.
Judgment entered this 25th day of June, 2014.
/David Evans/
DAVID EVANS
JUSTICE
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