In Re Ctf
336 S.W.3d 385
Tex. App.2011Background
- This is a divorce and child custody case involving Tammie Freeman and Mark Freeman with paternal grandparents William and Ellene Freeman as petitioners in intervention.
- Tammie was served with a petition for divorce on March 11, 2010, seeking Mark as sole managing conservator and Tammie as possessory conservator; Tammie did not respond.
- A petition in intervention was filed by the Freemans on July 27, 2010, seeking conservatorship and residency designation for the Freemans; Tammie was not served with citation or a copy of the intervention petition.
- Three days after the intervention petition was filed, the trial court entered a final decree of divorce after a hearing at which neither Tammie nor Mark appeared; the Freemans were present.
- The final decree awarded joint managing conservatorship to Mark and the Freemans, with the Freemans alone designated to determine the children's primary residence; Tammie was a possessory conservator with access only at times mutually agreed to by the Freemans.
- Tammie appealed, arguing that the final decree is void because she was never served with citation or a copy of the petition in intervention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service of citation and copy of the petition in intervention required on Tammie? | Freemans argued service was not required. | Tammie contends service was required and absence of service invalidates the intervention. | Yes; service was required and absence of service invalidates the intervention portion. |
| Can defective service be raised on appeal despite waiver arguments? | Tammie notes waiver defenses cannot cure defective service. | Freemans rely on Rule 33.1 waiver; some cases permit raising defect on appeal. | Defective service can be raised on appeal. |
| Does lack of service render the entire judgment void or just the intervention portion? | Due process concerns could void the entire judgment. | Judgment valid between Mark and Tammie; only the intervention portion affected. | Only the intervention portion is reversed; remainder affirmed. |
| What is the proper remedy given lack of service to the Freemans' petition in intervention? | Remand for proper proceedings because court lacked authority over the intervention issues. | Retain remainder of judgment; limit remand to intervention issues. | Remand for further proceedings on the intervention issues. |
Key Cases Cited
- Baker v. Monsanto Co., 111 S.W.3d 158 (Tex. 2003) (intervenor must serve defendant when no appearance)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (defective service can be raised on appeal despite new-trial filing)
- In re E.A., 287 S.W.3d 1 (Tex. 2009) (amended petitions may require service; different rule for more onerous relief)
- Benefit Planners, L.L.P. v. RenCare, Ltd., 81 S.W.3d 855 (Tex.App.-San Antonio 2002) (defective service can be raised on appeal)
- Arredondo v. State, 844 S.W.2d 869 (Tex.App.-Texarkana 1992) (recognizes service failure can be raised on appeal)
- Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (Tex.App.-Texarkana 2005) (intervenor’s actions may affect need for new citation)
- Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 866 (Tex.App.-Texarkana 2005) (discusses necessity of citation after intervention)