Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
appeal from the 319th District Court of Nueces County, Texas.
Chief Justice Valdez and Justices Benavides and Hinojosa
M. BENAVIDES, JUSTICE .
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.
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.").
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.
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.
August 16, 2016, Brian's process server filed an
affidavit with the trial court, stating the following in
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,
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.
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.
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. 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 ...