336 S.W.3d 385
Tex. App.2011Background
- Tammie Freeman was served with a petition for divorce on March 11, 2010 seeking Mark Freeman as sole managing conservator and Tammie as possessory conservator.
- Tammie did not respond to the divorce petition, and three days later the Freemans filed a petition in intervention seeking grandparents’ managing conservatorship and residency authority.
- Tammie was not served with citation or a copy of the petition in intervention; the final divorce decree was entered after a hearing attended by the Freemans but not by Tammie or Mark.
- The final decree awarded joint managing conservatorship to Mark and the Freemans, with the Freemans alone designated to determine the children’s primary residence, and Tammie as possessory conservator.
- Tammie challenged the decree on appeal, arguing lack of service on her regarding the petition in intervention voids the decree.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was service of citation required on Tammie for the petition in intervention | Freemans lacked authority without service on Tammie | No service required if court had jurisdiction by other means | Yes; service required on Tammie for the intervention |
| Did Rule 33.1 waiver apply to defective service | Waiver applies if no timely objection was raised | Jurisdictional defenses can be raised despite waiver | Defective service preserved for appeal; waiver did not validate service omission |
| Is the portion of the decree awarding conservatorship to the Freemans void | Without service, those provisions lack authority | Judgment valid between Mark and Tammie; only Freemans’ portion is at issue | Part of the decree void; reverse that portion and remand |
| Should the court reverse the entire judgment or only the affected part | Entire judgment should be reversed due to due process concerns | Judgment valid as to issues between Mark and Tammie; only Freemans’ portion reversed | Remand for the Freemans’ portion; affirm remaining aspects |
Key Cases Cited
- Baker v. Monsanto Co., 111 S.W.3d 158 (Tex. 2003) (subsequent appearance can relieve requirement to serve on intervenors)
- Wilson v. Dunn, 800 S.W.2d 833 (Tex. 1990) (defective service can be raised for first time on appeal)
- 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 preservation of service defect for appeal)
- In re E.A., 287 S.W.3d 1 (Tex. 2009) (amendment/service issues tied to due process)
- Sw. Constr. Receivables, Ltd. v. Regions Bank, 162 S.W.3d 859 (Tex. App.—Texarkana 2005) (new service not required where intervenor’s action renders service unnecessary)