511 S.W.3d 131
Tex. App.2014Background
- Heike and Michael Curley married in 2002 and have one child, Z.J.C., born in 2004.
- After a 2011 domestic-violence event, Heike moved with Z.J.C. to Wisconsin.
- Michael filed for divorce in October 2011, including a suit affecting the parent-child relationship.
- Efforts to serve Heike at her ex-husband’s Kenosha address failed; publication of citation occurred in February 2012 without mentioning Z.J.C. or conservatorship.
- The trial court entered a default divorce decree on March 29, 2012; Michael located Z.J.C. and took custody shortly after; Heike sought relief via motion for new trial.
- The court reversed and remanded, holding the citation by publication failed to notify the nature of the suit and Michael failed due diligence to locate Heike.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether publication properly notified the nature of the suit affecting a parent-child relationship | Curley argues notice did not inform about child custody rights | Curley contends form compliance with 102.010(c) (and possible combination with 6.409) suffices | No; citation failed to substantially comply with 102.010(c) and thus lacked notice of the child-related issues |
| Whether Michael exercised sufficient diligence to locate Heike before service by publication | Not sufficiently diligent; relied on distant attempts | Argues diligence adequate under circumstances | No; Michael failed to conduct a diligent search, rendering service by publication void |
Key Cases Cited
- Wiebusch v. Wiebusch, 636 S.W.2d 540 (Tex.App.--San Antonio, 1982) (notice requirements for publication; failure invalidates service)
- In re E.R., 385 S.W.3d 552 (Tex. 2012) (due process; lack of diligence voids judgment)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (U.S. 1950) (due process requires reasonable notice to affected parties)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (actual notice does not suffice without proper service)