IN THE MATTER OF THE MARRIAGE OF ANGELINA SANDOVAL AND ANGEL SANDOVAL AND IN THE INTEREST OF A.M.S., A CHILD
the 378th District Court Ellis County, Texas Trial Court No.
Chief Justice Gray, Justice Davis, and Justice Neill [*]
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
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,  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.
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.
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.
Admissibility of Affidavits
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.
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).
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).
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).
"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.
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.
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.
Compliance with Hague Convention
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.
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.
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 ...