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Owsley v. Owsley

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

November 30, 2017

JIMIE DIANNE OWSLEY, Appellant,
v.
BRIAN LEON OWSLEY, Appellee.

         On appeal from the 319th District Court of Nueces County, Texas.

          Before Chief Justice Valdez and Justices Benavides and Hinojosa

          MEMORANDUM OPINION

          GINA M. BENAVIDES, JUSTICE .

         This is an appeal from a default judgment. By eight issues, which we construe as one central issue with seven sub-issues, appellant Jimie Dianne Owsley seeks to set aside the default judgment rendered against her in a post-divorce decree enforcement action. We reverse and remand.

         I. Background

         Jimie and Brian are former spouses who divorced in July 2015. In June 2016, Brian filed a post-decree motion to enforce their final divorce decree. See Tex. Fam. Code Ann. § 9.001(a) (West, Westlaw through 2017 1st C.S.) ("A party affected by a decree of divorce . . . may request enforcement of that decree by filing a suit to enforce . . . in the court that rendered the decree.").

         Slightly more than a month after filing his post-decree enforcement action, Brian filed a motion for alternate service under Texas Rule of Civil Procedure 106(b). See Tex. R. Civ. P. 106(b) (allowing for alternative service of citation upon motion supported by affidavit that attempts to serve where normal methods of service were unsuccessful). In his motion, Brian asserted that since filing the enforcement action, Jimie "has avoided service by not answering her door while at home" and that she has instructed the staff at her office to tell the process server that "she is not in, although her automobile is in the parking lot of her office." Brian then asked the trial court to issue an order authorizing alternate service by serving a copy of the enforcement petition and citation upon Jimie's office manager and taping a duplicate copy of the motion and citation on the door of Jimie's home. Brian also attached an affidavit by his process server, who averred that he has attempted to serve Jimie "five (5) times at her home, when I know she is there, and she refuses to answer the door." The process server also stated that he attempted to serve Jimie at her office on five occasions, but was told that she was not there.

         On July 19, 2016, the trial court granted Brian's motion for alternate service and issued the following order:

IT IS ORDERED that service may be had on Respondent, Jimie Owsley, by serving the citation and document upon the office manager/receptionist at Respondent's office located at 810 Morgan, Corpus Christi, Texas, as well as, taping a duplicate citation and document on the door of [Jimie's] residence at 130 Southern, Corpus Christi, Texas.

         On August 16, 2016, Brian's process server filed an affidavit with the trial court, stating the following in relevant part:

On 6/24/2016 I received a Citation and Motion to Enforce Final Decree of Divorce, Styled in the Matter of the Marriage of Jimie Diane Owsley and Brian Leon Owsley from the Law Offices of William A. Dudley, in Cause Number 2014-FAM-1876-G from 319th District Court of Nueces, County, Texas. I was instructed to deliver the documents to [Jimie] by delivering one copy attached to the door at 130 Southern Dr. Corpus Christi, Nueces County, Texas and another copy to the Office Manager at 810 Morgan Avenue, Corpus Christi, Nueces County, Texas.
On June 25, 2016 at approximately 8:03 a.m. I personally delivered the said documents to [Jimie] by attaching to the front door at 130 Southern Dr., Corpus Christi, Nueces County, Texas with the time and date affixed to the documents. On August 15, 2016 at approximately 3:45 p.m. I personally delivered the said documents to a Hispanic female approximately 35-40 years of age, 5'2"-5'4" and approximately 130 lbs with shoulder length brown hair who identified herself as the Office Manager for Dr. Owsley with the date affixed to the documents as per Rule 106 of the Texas Rules of Civil Procedure and Order of the Court.

         On September 30, 2016, the trial court rendered a default judgment on Brian's enforcement action, noting that although Jimie was "duly and properly served with citation, [she] failed to file an answer to the motion to enforce . . . and is in default." In its order, the trial court essentially granted Brian's order of enforcement in its entirety with minor changes.

         On October 24, 2016, Jimie, acting pro se, filed a document with the trial court erroneously entitled "Order to Vacate Judgment, " which we will treat as a motion to vacate or set aside the default judgment.[1] In the filing, Jimie asserts that she received no prior notice of the enforcement hearing and learned about it "by happenstance." Jimie further complained about the proceedings taking place without her presence and requested a "stay to file [her] response" to the enforcement action, "trial by jury, " and a "tape recording of proceedings." The record also shows that on November 17, 2016, Jimie filed an "Amended Motion to ...


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