Eguia v. Eguia

• Decision Date: 29 March 2012
• Docket Number: No. 13–10–00111–CV.,13–10–00111–CV.
• Citation: 367 S.W.3d 455
• Parties: Fernando Javier EGUIA, Appellant, v. Michelle EGUIA, Appellee.
• Court: Texas Court of Appeals

367 S.W.3d 455

Fernando Javier EGUIA, Appellant,

v.Michelle EGUIA, Appellee.

No. 13–10–00111–CV.

Court of Appeals of Texas, Corpus Christi–Edinburg.

March 29, 2012.

David M. Davila, Corpus Christi, for Appellant.

Kelly Kolpack Koch, Corpus Christi, for Appellee.

Michelle Eguia, Corpus Christi, pro se.

Before Justices BENAVIDES, VELA and PERKES.

OPINION

Opinion by Justice PERKES.

In this restricted appeal, appellant Fernando Javier Eguia (“Fernando”), appeals a default divorce judgment rendered in favor of appellee Michelle Eguia (“Michelle”). In three issues, Fernando argues that the trial court erred and abused its discretion in granting a default judgment, and contends that the record “on its face” shows: (1) the parties were in bankruptcy and that the default judgment was granted in violation of the bankruptcy court's automatic stay, 11 U.S.C.A. § 362(c)(4)(B) (West 2011); (2) the return of citation was not on file for a period of at least ten days before the hearing, as is required by Texas Rule of Civil Procedure 107; and (3) appellant was not served with process, did not accept or waive service; and did not otherwise make an appearance. We reverse and remand in part, and vacate and dismiss in part.

I. General Background

On March 11, 2008, the Office of the Attorney General, Child Support Division, filed a petition for confirmation of non-agreed child support review order. ¹ Michelle and Fernando each signed a sworn document entitled “non-agreed child support review order, waiver of service and agreement to appear in court.” On April 18, 2008, the trial court entered an order confirming the non-agreed child support review order, thereby establishing child support obligations. The order was not appealed.

Subsequently, Michelle and Fernando jointly filed for bankruptcy. On October 20, 2008, the bankruptcy court entered an order imposing an automatic stay. SeeChapter 11, section 362(c)(4)(B) of the United States Code. ² However, a copy of the order imposing automatic stay was not filed with the trial court until March 5, 2010.

On August 18, 2009, Michelle, ignoring the bankruptcy stay order, filed an original petition for divorce, wherein she sought a divorce, child custody and support, and marital property division.³ A document entitled “Nueces County District Clerk Information for Issuance of Service” was filed on August 18, 2009, requesting service. The clerk's record, however, does not include a copy of either the service of citation or return of service.

On November 9, 2009, Michelle filed a motion to consolidate the divorce action and the State's child support action. On November 13, 2009, the trial court granted the motion to consolidate. The clerk's record does not include a notice of hearing, and does not indicate whether a hearing was held on the motion to consolidate.⁴ Fernando did not file an answer or otherwise make an appearance in the consolidated divorce action.

On November 18, 2009,⁵ a hearing was held, during which the following transpired between the trial court and Michelle's counsel, Ms. Koch:

THE COURT: Ms. Koch there is no service.

MS. KOCH: Your Honor, there has been service, I understand. My office called me because I found out what was going on. The process server is on their way to refile another return so there—

THE COURT: She checked the computers and it is not there.

MS. KOCH: And sometimes that happens. Things get misfiled or misplaced, but my process server has told me, he sent me verification. It was done on September 2nd, so that's—that's already happened and we just need to let the paperwork catch up, and they are on their way up to the Court now to do that.

On November 18, 2009, a sworn “Affidavit of Service” was filed by a private process server attesting Fernando was served on September 2, 2009. On that same date, the private process server also filed a sworn “Affidavit of Lost Citation,” attesting that as of November 18, 2009, the “Original Citation for Return has been misplaced, lost in the mail, or possibly left with the person served by mistake and can not [sic] be located.” The affiant requested the “Affidavit of Service” be used in place of the Original Citation for Return. ⁶ On November 19, 2009, the trial court entered a default divorce judgment, therebygranting a divorce, establishing child custody, modifying child support, and making a marital property division between Michelle and Fernando.⁷ On March 5, 2010, appellant filed his notice of restricted appeal.⁸

II. Standard of Review

A. Restricted Appeal

A restricted appeal is a direct attack on a default judgment. Arnell v. Arnell, 281 S.W.3d 549 (Tex.App.-El Paso 2008, no pet.); Faggett v. Hargrove, 921 S.W.2d 274, 276 (Tex.App.-Houston [1st Dist.] 1995, no writ). The record on appeal consists only of those documents on file with the trial court when the default judgment was entered. Laas v. Williamson, 156 S.W.3d 854, 857 (Tex.App.-Beaumont 2005, no pet.); Stankiewicz v. Oca, 991 S.W.2d 308, 311–12 (Tex.App.-Fort Worth 1999, no pet.). To succeed on restricted appeal, the appellant must establish that: (1) it filed the notice of restricted appeal within six months after the final judgment is signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not file any post-judgment motions or requests for findings of fact and conclusions of law; and (4) the error complained of is apparent on the face of the record. SeeTex.R.App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 849 (Tex.2004); Stubbs v. Stubbs, 685 S.W.2d 643, 644 (Tex.1985); Autozone, Inc. v. Duenes, 108 S.W.3d 917, 919 (Tex.App.-Corpus Christi 2003, no pet.).

B. Bankruptcy Court's Automatic Stay

The filing of a bankruptcy has a two-fold effect. First, it creates a bankruptcy estate comprised of all of the debtor's property. 11 U.S.C.A. § 541(a)(1) (West 2011). Second, it imposes an automatic stay, which prohibits the commencement or continuation of any judicial action or proceeding against the debtor and any property within the debtor's bankruptcy estate. 11 U.S.C.A. § 362(a) (West 2011). The bankruptcy stay is effective upon filing of the petition, regardless of whether the court or the other parties to the stayed action are cognizant of the bankruptcy. See Marroquin v. D & N Funding, Inc., 943 S.W.2d 112, 115 (Tex.App.-Corpus Christi 1997, no pet.); Huddleston v. Texas Commerce Bank–Dallas, N.A., 756 S.W.2d 343, 345 (Tex.App.-Dallas 1988, writ denied). The bankruptcy stay deprives state courts of jurisdiction over proceedings against the debtor and his property until the stay is lifted or modified. See Baytown State Bank v. Nimmons, 904 S.W.2d 902, 905 (Tex.App.-Houston [1st Dist.] 1995, writ denied); see also Lovall v. Gow–Ming Chao, No. 01–02–01019–CV, 2005 WL 110372. at *1, 2005 Tex.App. LEXIS 415, at *3 (Tex.App.-Houston [1st Dist.] 2005, writ denied) (mem. op., not designated for publication). All state court actions taken against a debtor in violation of an automatic stay, pursuant to the bankruptcy code, are void, not voidable.See Howell v. Thompson, 839 S.W.2d 92, 92 (Tex.1992); Continental Casing Corp. v. Samedan Oil Corp., 751 S.W.2d 499, 501 (Tex.1988); In re De La Garza, 159 S.W.3d 119, 121 (Tex.App.-Corpus Christi 2004, no pet.). While it is unnecessary to appeal from a void judgment, it is nevertheless settled that an appeal may be taken and that the appellate court in such a proceeding may declare the judgment void. See State ex. Re. Latty, 907 S.W.2d 484, 486 (Tex.1995); Moore Landrey, L.L.P. v. Hirsch & Westheimer, P.C., 126 S.W.3d 536, 543 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

III. Analysis

The record shows that the notice of restricted appeal was filed within six months after the final judgment was signed, and that Fernando was a party to the underlying lawsuit, but that he did not participate in the hearing which resulted in the judgment complained of, and that he did not file any post-judgment motions or requests for findings of fact and conclusions of law. Therefore, our discussion will center solely on whether the error complained of is apparent from the face of the record.

A. Maintenance and Division of Marital Property

By his third issue, Fernando argues the trial court erred in granting a default judgment where the record “on its face” shows that the default judgment violated an order imposing automatic stay pursuant to a bankruptcy proceeding.

The order of automatic stay was entered on October 20, 2008, and the final decree of divorce was entered on November 19, 2009. The final decree of divorce includes an award of child support and a division of marital property. In this regard, the divorce decree's section entitled “Division of Marital Estate” includes a section dividing the debt which states:

Debts to Husband

IT IS ORDERED AND DECREED that the husband, FERNANDO JAVIER EGUIA, shall pay, as a part of the division of the estate of the parties, and shall indemnify and hold the wife and her property harmless from any failure to so discharge, these items:

....

H–3. All payments due in relation to the bankruptcy filed in case number 08–20538–C–13 in Nueces County, Texas. (emphasis added).

The language included in the judgment shows that the trial court was aware of the bankruptcy proceeding, but nonetheless entered a judgment that included property which was a part of the bankruptcy estate. The trial court did not make any inquiry regarding the status of the parties' bankruptcy proceeding. Rather, the record is otherwise silent concerning the bankruptcy, and does not include an order from the bankruptcy court lifting the stay or any order that would allow the continuation of the parties' divorce proceeding.

Inasmuch as the trial court entered its judgment during the pendency of the parties' bankruptcy stay, the trial court's judgment is void to the extent it attempted to rule on matters relating to...