When it comes to international service of process, family law cases raise unique issues.
In the case of Marriage of Sandoval and Sandoval,[1] published October 15, 2019, the Texas appellate court was confronted with the issue of how to serve a spouse who does not want to be found. Specifically, in this case the Texas appellate court examined how to handle service of process when the defendant’s address is unknown.
An Overview of the Facts
The facts in this case are straightforward: wife files for divorce from husband who has (allegedly) absconded to Mexico. Although Mexico is a signatory to the Hague Service Convention, the trial court ordered service upon the husband to be via service upon his mother.[2]
After a default judgment was entered against the husband (which negatively impacted his relationship with his child), the husband sought to have the trial court’s default judgment set aside.
Service of Process & Default Judgments
J. Davis began the opinion of the court by reviewing personal jurisdiction as it pertains to service of process and default judgments.
Absent proper service of process, a trial court does not have personal jurisdiction to render a default judgment against a non-answering defendant. When, as in this case, a defendant has not filed an answer, a trial court acquires jurisdiction over that defendant solely on proof of proper service. Service of process upon an individual located in Mexico is governed by the provisions of the Hague Service Convention, an international treaty. However, the Hague Convention does not apply if a party’s whereabouts are unknown. If a defendant’s whereabouts are unknown, then service by publication or another approved alternative may be appropriate.[3]
In this case, the trial court had no evidence that the family knew of the father’s address. TEX. R. CIV. P. Rule 109
governs service when the residence of a party is unknown. It is the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to obtain service on a nonresident before it grants any judgment on the service. Although the trial court held a hearing on [the wife’s] motion for alternative service, the court reporter’s record from that hearing is not included in the appellate record. Nor is there any indication in the record that findings of fact and conclusions of law were requested or filed on this issue.[4]
The Hague Convention is Not Applicable
A trial court’s ruling on whether jurisdiction exists is viewed
in a bifurcated manner — factual findings are viewed for legal and factual sufficiency while legal conclusions are reviewed de novo. When there is neither a reporter’s record nor findings of fact, all facts that are necessary to support the trial court’s ruling and that are supported by the evidence are implied. There is sufficient evidence in the record to support the trial court’s implied factual findings that [the wife] did not know [the husband’s] whereabouts and that [she] exercised diligence in attempting to locate [the husband’s] address in Mexico. The implied facts are sufficient to support the resulting legal conclusion that service under the Hague Service Convention was not required. The trial court did not, therefore, abuse its discretion in granting [the wife’s] motion for alternative service.[5]
Substituted Service
As the Hague Convention was no longer applicable, the trial court granted the wife’s motion for substituted service. Texas law “authorizes service by delivering the citation, with a copy of the petition, to the respondent in person or by registered or certified mail, return receipt requested.”[6] If service under these methods fail, the trial court, upon motion supported by affidavit, may authorize service:
- by leaving a true copy of the citation, with a copy of the petition attached, with anyone over sixteen years of age at the location specified in the affidavit; or
- in any other manner that the affidavit or other evidence before the court shows will be reasonably effective to give the defendant notice of the suit[7]
In contemplating whether to authorize substituted service, a trial court must be cognizant that, “Texas law prefers personal service over substitute service.” A plaintiff may resort to substitute service only upon failure of those methods which provide proof of actual notice.[8]
If the trial court authorizes substitute service under Rule 106,
whether the defendant receives actual notice is of no legal consequence. Requiring proof of actual notice when substitute service has been authorized “would frustrate Rule 106(b)’s purpose of providing alternate methods…” A process server’s affidavit is sufficient proof that substitute service was completed in accordance with the trial court’s order. “An affidavit is sufficient under Rule 106 if it provides `evidence of probative value that the location stated in the affidavit is the defendant’s usual place of business or usual place of abode or other place where the defendant can probably be found.’” A plaintiff is not required to recite the actual language from the rules in the affidavit. Additionally, Rule 106 does not require that a defendant be served at his home address if service is attempted at his “usual place of business… or other place where the defendant can probably be found.”[9]
Reviewing the Affidavit of Service
The court then reviewed in detail the affidavit of service filed in this case.
While [the husband’s] mother said she was not sure “when or if” [the husband] would return, [his] brother told [the process server] that [the husband] did live at the Fort Worth residence even though [he] was currently in Mexico… Finally, [the process server] spoke directly with [the husband] who told [the process server] to leave the citation at the Fort Worth house. There was no indication from [the husband] that he would not be returning to the Fort Worth house.
The appellate court accordingly ruled that the “trial court did not abuse its discretion in failing to find the Rule 106 affidavit deficient” and that service was proper in this case.
How DMS Can Help
At DMS, we have more than 35 years of experience effecting service abroad. Our on-staff attorneys and paralegals are well-versed in the rules and restrictions that apply to Hague and non-signatory countries.
Whether you need to service process via the Hague Convention or by other means, the professionals at DMS can help. Contact us today to learn how we can put our experience to work for you.
Call us at 1-800-755-5775 or simply fill out our free quote form.
