In re Marriage of Sandoval

          From the 378th District Court Ellis County, Texas Trial Court No. 93422D

          Before Chief Justice Gray, Justice Davis, and Justice Neill ^[*]

          OPINION

          REX D. DAVIS JUSTICE.

         In four issues, Appellant Angel Sandoval challenges the trial court's denial of his motion for new trial. Angel argues that: (1) the trial court erred when it refused to consider the affidavits submitted in support of his motion for new trial; (2) the trial court erred in failing to find that lack of compliance with the Hague Convention deprived it of personal jurisdiction over Angel; (3) the trial court erred in determining that the Rule 106 affidavit demonstrated that substitute service was justified; and (4) the trial court erred in not granting Angel's motion for new trial under the principles of Craddock v. Sunshine Buslines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (Tex. 1939). We will affirm.

         I. Background

         Angel and Angelina Sandoval were married on or about May 30, 2009 and ceased to live together as a married couple in December 2015. The couple have one child. Angelina filed for divorce and moved for alternative service on Angel on the ground that personal service had been attempted but was unsuccessful. Angelina requested that Angel be served through service on Angel's mother, ^[1] or by serving anyone over sixteen years of age at the mother's address. After a hearing, the trial court granted Angelina's motion. The trial court's order authorized service on Angel by delivery of citation to Angel's mother. The process server's return reflects that a copy of the petition for divorce was left with Angel's mother at her residence on October 6, 2016. Angel never filed an answer.

         The trial court held a prove-up hearing on December 13, 2016 and signed a final decree of divorce on January 6, 2017. As part of the decree, Angelina was named sole managing conservator of the couple's child, and she was awarded, as her sole and separate property, the residence where Angel's mother resides in Fort Worth and all of the contents found inside. Angel filed a motion for new trial on January 30, 2017. Angel, who allegedly resides in Mexico, asserted that the trial court never acquired personal jurisdiction over him because service did not comport with the Hague Convention and because the Rule 106 affidavit in support of substitute service was deficient. Angel additionally argued that all of the elements required under Craddock were present. Angelina did not file a response to the Motion for New Trial.

         After a hearing, the trial court denied Angel's motion for new trial. No written findings of fact and conclusions of law were filed or requested. The only witness at the hearing was Angel's sister, although the court noted on the record that Angelina was in attendance at the hearing, in person and through her attorney.

         II. Admissibility of Affidavits

         Attached as exhibits to Angel's motion for new trial are unsworn declarations from Angel's sister and mother and what he purports is his own affidavit. At the hearing on Angel's motion, Angelina's attorney objected to all three documents on the ground of hearsay, which the trial court sustained. Angel argues in his first issue that the trial court should have considered the documents as conclusive because Angelina did not file a response to the motion for new trial or present any controverting affidavits.

         A trial court's decision to admit or exclude evidence is reviewed for an abuse of discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). A trial court abuses its discretion by acting "without reference to any guiding rules and principles." Starwood Mgmt., LLC v. Swaim, 530 S.W.3d 673, 678 (Tex. 2017) (quoting Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)). "Its judgment should be reversed only if the ruling was arbitrary or unreasonable." Horizon Health Corp. v. Acadia Healthcare Co., Inc., 520 S.W.3d 848, 884 (Tex. 2017). An appellate court must uphold a trial court's evidentiary ruling as long as there is any legitimate basis for doing so. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Tuttle v. Builes, 572 S.W.3d 344, 356 (Tex. App.-Eastland 2019, no pet.). When, as here, the trial court does not issue findings of fact and conclusions of law, the appellate court implies all findings necessary to support the judgment. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Fenlon v. Harris Cty., 569 S.W.3d 783, 791 (Tex. App.-Houston [1st Dist.] 2018, no pet.). In cases in which the appellate record includes a reporter's record, the trial court's implied fact findings are not conclusive and may be challenged for legal and factual sufficiency of the evidence supporting them. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex. App.-Houston [1st Dist.] 2006, pet. denied) (op. on reh'g).

         Angel cites to Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992) in support of his argument. Holt notes that the trial court should look to the knowledge and acts of the defendant contained in the record in applying the Craddock test-"Where factual allegations in a movant's affidavits are uncontroverted, it is sufficient that the motion for new trial and accompanying affidavits set forth facts which, if true, would satisfy the Craddock test." Id. However, the trial court retains the discretion to exclude objectionable evidence even if uncontroverted, including affidavits that contain conclusory or hearsay statements. Id. (affidavits that contain "conclusory allegations are insufficient"); see also Polignone v. Bulldog Chemicals, LLC, No. 01-16-00633-CV, 2018 WL 4128002, at *6 (Tex. App.-Houston [1st Dist.] Aug. 30, 2018, no pet.) (mem. op.) (conclusory statements in affidavit insufficient to satisfy requirements of Craddock); Total Corrosion Management, LLC v. ANZ, No. 14-16-00998-CV, 2017 WL 3662444, at *3 (Tex. App.-Houston [14th Dist.] Aug. 24, 2017, no pet.) (mem. op.) (trial court could have found affidavit inadmissible hearsay and/or speculative, which would leave no evidence); Walker v. Texas Dep't of Family and Protective Services, 312 S.W.3d 608, 624 (Tex. App.-Houston [1st Dist.] 2009, pet. denied) (trial court not required to accept as true statements in affidavit regarding ineffective assistance of counsel even if not contradicted); Cont'l Cas. Co. v. Davilla, 139 S.W.3d 374, 382 (Tex. App.-Fort Worth 2004, pet. denied) (conclusory allegations in affidavit insufficient to negate intent or conscious indifference).

         Assuming without deciding that Angel's affidavit was not hearsay, the trial court could have excluded it on other grounds. Section 312.011(1) of the Government Code defines an affidavit as "a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office." Tex. Gov. Code Ann. § 312.011(1). When a written statement does not meet this basic definition, it is "not an affidavit at all." Mansions in the Forest, L.P. v. Montgomery Cty., 365 S.W.3d 314, 316 (Tex. 2012) (quoting Hardy v. Beaty, 84 Tex. 562, 19 S.W. 778, 779 (1892)). Angel did not establish that his affidavit was "sworn to before an officer authorized to administer oaths." Angel provided no translation for the presumed certification from the officer administering the oath that appears to be in Spanish. See Tex. R. Evid. 1001, et seq.; see also Int'l Commercial Bank of China v. Hall-Fuston Corp., 767 S.W.2d 259, 261 (Tex. App.-Beaumont 1989, no writ) (for foreign language document to be probative, the proponent must present a translation either in writing or orally); Alaniz v. State, No. 13-13-00657-CR, 2015 WL 5895085, at *5 (Tex. App.-Corpus Christi Oct. 8, 2015, no pet.) (mem. op., not designated for publication) (foreign language documents admissible with written or oral translation).

         Angel's "affidavit" also does not meet the requirements for an unsworn declaration under § 132.001 of the Civil Practice and Remedies Code because it includes no declaration that the information contained therein is based upon Angel's personal knowledge or that it was made subject to perjury. Tex. Civ. Prac. & Rem. Code Ann. § 132.001.

         The unsworn declarations from Angel's sister and mother, in addition to constituting hearsay, were also based upon conclusory allegations regarding Angelina's knowledge of Angel's residence in Mexico. A statement in an affidavit is "conclusory" if it provides a conclusion but no underlying facts in support of the conclusion. Brown v. Brown, 145 S.W.3d 745, 751 (Tex. App.-Dallas 2004, pet. denied).

         The trial court did not abuse its discretion in sustaining the objection to Angel's "affidavit" and the unsworn declarations of his sister and mother. We overrule Angel's first issue.

         III. Compliance with Hague Convention

         In his second issue, Angel argues that Angelina was required to serve the divorce papers upon him in compliance with the Hague Convention because he is a resident of Mexico.

         Absent proper service of process, a trial court does not have personal jurisdiction to render a default judgment against a non-answering defendant. In re E.R., 385 S.W.3d 552, 563 (Tex. 2012). 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. Tex.R.Civ.P. 107(h) (prohibiting default judgment unless proof of proper service and return have been on file for ten days). Service of process upon an individual located in Mexico is governed by the provisions of the Hague Service Convention, an international treaty. See Velasco v. Ayala, 312 S.W.3d 783, 792 (Tex. App.-Houston [1st Dist.] 2009, no pet.); see also Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters, Nov. 15, 1965 (Hague Service Convention), 20 U.S.T. 361, T.I.A.S. No. 6638. However, the Hague Convention does not apply if a party's whereabouts are unknown. Hague Service Convention, art. 1; Velasco, 312 S.W.3d at 799. If a defendant's whereabouts are unknown, then service by publication or another approved alternative may be appropriate. Tex.R.Civ.P. 109, 109a.

         With Angel's affidavit and the unsworn declarations of his sister and mother excluded, the only evidence before the trial court regarding Angel's residence was the testimony of Angel's sister at the hearing on Angel's motion for new trial. Angel's sister testified without objection to the following: Angel has resided at the same address in Mexico for the past five years, and Angel was not aware of the divorce ...