Reverse and Remand and Opinion Filed May 26, 2023

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-00068-CV

DASHINAU CATO, Appellant

V.

MICHELLE Y. SMITH-CATO, Appellee

On Appeal from the 302nd Judicial District Court

Dallas County, Texas

Trial Court Cause No. DF-20-12340

MEMORANDUM OPINION

Before Justices Carlyle, Garcia, and Miskel

Opinion by Justice Miskel

Dashinau Cato, Husband, appeals the trial court’s entry of a default divorce 

decree. First, Husband asserts that the default judgment was void due to a lack of 

personal jurisdiction because no return of service was filed. Second, Husband argues

that the trial court failed to appoint an attorney to defend the suit on his behalf after 

service by publication was requested. Third, he argues that the evidence was 

insufficient to support the trial court’s division of the marital property.

We conclude that the trial court did not have personal jurisdiction over 

Husband and that the record could not support a default judgment. We reverse the 
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trial court’s final decree of divorce and remand the case for further proceedings 

consistent with this opinion. 

I. Procedural Background

Michelle Smith-Cato, Wife, filed a pro se petition for divorce and an amended 

petition, correcting her last name. In both her original and amended petitions for 

divorce, Wife stated “I cannot find my spouse. I ask that my spouse be served by 

posting or publication.” 

Wife filed a motion for citation by posting, a form of publication service, 

which was supported by an affidavit swearing that she had made a diligent attempt 

to locate Husband but had been unable to do so. Wife’s affidavit filed with the 

motion swears that “no appreciable amount of property was accumulated during our 

marriage,” but it also describes a house acquired during the marriage. No return of 

service was ever filed. The court did not appoint an attorney to defend the suit on 

behalf of Husband.

Wife filed an “Affidavit for Prove-Up of Default Divorce Without Children,”

which states, among other things, that Wife and Husband entered into an agreement 

concerning the division of their property and debts and that the agreement is fair and 

equitable to both, but which does not contain any evidence about any marital 

property or its value. 
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On November 20, 2020, without a hearing, an associate judge signed a default 

final decree of divorce.1 The judgment states that “[Husband] was not present, but

was served and has defaulted.” Nothing in the record shows that the court inquired

into the sufficiency of the diligence exercised in attempting to ascertain the 

whereabouts of Husband before granting judgment. The judgment also indicates

that a statement of evidence was signed by the trial court, but nothing in the record 

indicates that a statement of evidence was filed. With respect to jurisdiction, the 

judgment states in part, “The Court heard evidence and finds that it has jurisdiction 

over this case and the parties, that the residency and notice requirements have been 

met, and the Petition for Divorce meets all legal requirements.” Among other things, 

the decree awards Wife property including two cars and a house, and it does not list 

any values for the property being divided.

On August 25, 2021, Husband filed a “Motion to Set Aside Default Judgment 

After Service by Publication,” requesting the trial court to set aside the default 

judgment and grant a new trial. He argued the trial court should grant a new trial for 

several reasons, including that service was “improperly effected by publication,” the 

trial court failed to appoint an attorney as required by Texas Rule of Civil Procedure 

244, the trial court did not approve or sign a statement of evidence under that rule, 

 

1 The default judgment in this case was signed during the Texas Supreme Court’s COVID-19 

emergency orders, which in some circumstances authorized courts to take evidence by affidavit. Supreme 

Court of Texas, Twenty-Ninth Emergency Order Regarding COVID-19 State of Disaster, Misc. Docket No. 

20-9135, 629 S.W.3d 863, 864 para. 3(d) (Tex. Nov. 11, 2020). The discussion of whether a default 

judgment can be supported by affidavit is outside the scope of this opinion.
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there was insufficient evidence to support the trial court’s judgment, and Wife

procured service by publication and the default judgment by fraud. Wife responded 

that Husband would not provide her with his address and stated that the divorce 

decree was a fair and equitable division of the property. Her response does not allege 

that Husband was ever served with the suit. On November 19, 2021, the trial court 

signed an order denying Husband’s motion to set aside the default judgment, and 

Husband filed a notice of appeal the same day.

II. Appellate Jurisdiction

Where a judgment has been rendered on service of process by publication, the 

trial court may grant a motion for new trial filed within two years after the judgment 

was signed. TEX. R. CIV. P. 329(a). Husband’s motion for new trial was filed on 

August 25, 2021, less than a year after the default judgment was signed. Both parties 

agreed that Husband’s motion for new trial was timely under Rule 329(a), and 

neither party contested appellate jurisdiction in this case.

When process has been served by publication, the relevant time periods run 

from the filing of the motion for new trial. TEX. R. CIV. P. 306a(7). Husband had 

90 days to file a notice of appeal after filing his motion for new trial, so his notice of

appeal was due November 23, 2021. See TEX. R. APP. P. 26.1(a). We conclude that 

his notice of appeal was timely filed on November 19, 2021. 
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III. Standard of Review and Applicable Law

Trial courts lack jurisdiction over a defendant who was not properly served 

with process. Spanton v. Bellah, 612 S.W.3d 314, 316 (Tex. 2020). A complete 

failure of service deprives a litigant of due process and a trial court of personal 

jurisdiction; the resulting judgment is void and may be challenged at any time. In 

re E.R., 385 S.W.3d 552, 566 (Tex. 2012). Personal jurisdiction is a question of law,

which appellate courts review de novo. Law Off. of Robert D. Wilson v. Tex. 

Univest-Frisco, Ltd., 291 S.W.3d 110, 113 (Tex. App.—Dallas 2009, no pet.).

Because the motion for new trial and notice of appeal in this case were timely 

filed, this is a direct attack on the default judgment. See PNS Stores, Inc. v. Rivera, 

379 S.W.3d 267, 271–272 (Tex. 2012). For more than 150 years, the Texas Supreme 

Court has required that strict compliance with the rules of service of citation 

affirmatively appear in the record for a default judgment to withstand direct attack.

See Primate Constr., Inc. v. Silver, 884 S.W.2d 151, 152 (Tex. 1994) (citing Wilson 

v. Dunn, 800 S.W.2d 833, 836 (Tex. 1990); Uvalde Country Club v. Martin Linen 

Supply Co., 690 S.W.2d 884, 885 (Tex. 1985); McKanna v. Edgar, 388 S.W.2d 927, 

929 (Tex. 1965); Flynt v. Kingsville, 82 S.W.2d 934, 934 (1935); Sloan v. Batte, 46 

Tex. 215, 216 (1876); and Roberts v. Stockslager, 4 Tex. 307, 309 (1849)). Noanswer default judgments are disfavored and cannot stand when a defendant was not 

served in “strict” compliance with applicable requirements. Spanton, 612 S.W.3d at 

316. There are no presumptions in favor of valid issuance, service, or return of 
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citation. Id.; Primate Constr., 884 S.W.2d at 152. The party requesting service bears 

the responsibility for ensuring that service is properly accomplished and reflected in 

the record. Primate Constr., 884 S.W.2d at 153.

IV. The Default Judgment Was Void Because the Court Lacked Personal 

Jurisdiction Over Husband, Who Had Not Been Served

In his first issue on appeal, Husband argues that the default judgment was void 

for lack of personal jurisdiction because there is no evidence that Wife served him 

with citation. Although Wife pleaded for service by posting, the record does not 

contain any return of service. Wife’s affidavit filed in advance of the default trial 

also does not include any evidence of whether or how Husband was served. No 

default trial was held, so there is no evidence in a reporter’s record regarding service.

A. Service by Publication and Posting in Divorce Cases

Section 6.409(a) of the Texas Family Code provides that “[c]itation in a suit 

for dissolution of a marriage may be by publication as in other civil cases,” and 

tailors the publication requirements for divorce cases. If no minor children are 

involved, publication service may be completed by posting the citation at the 

courthouse door for seven days. TEX. FAM.CODE § 6.409(d). Thus, in divorce cases,

service by posting is permitted as a form of publication service. Further, if the 

petitioner swears that there is no minor child and no appreciable amount of property, 

the court may dispense with the appointment of an attorney ad litem. TEX. FAM.

CODE § 6.409(e); cf. TEX. R. CIV. P. 244. In divorce suits where citation was by 
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publication, a statement of the evidence, approved and signed by the judge, must be 

filed as part of the record. TEX. FAM. CODE § 6.409(e); see also TEX. R. CIV. P. 244.

Since the Family Code provides that citation in a divorce suit may be by 

publication as in other civil cases, Rule 110 clarifies that the rest of the civil rules 

relating to service still apply. See TEX. FAM. CODE § 6.409(a); TEX. R. CIV. P. 110; 

see also Jones v. Jones, No. 09-06-238 CV, 2007 WL 2324039, at *2 (Tex. App.—

Beaumont Aug. 16, 2007, no pet.) (mem. op.) (finding that the phrase “as in other 

civil cases,” in section 6.409(a) of the Texas Family Code also requires consideration 

of Rule 244); In re Marriage of Serbin, No. 07-18-00349-CV, 2020 WL 856340, at 

*2 (Tex. App.—Amarillo Feb. 20, 2020, no pet.) (mem. op.) (same).

For all forms of service, the rules require:

 The officer or authorized person executing the citation must complete 

a return of service. TEX. R. CIV. P. 107(a). 

 The return of service must be filed with the court. TEX. R. CIV. P. 

107(g). 

 The court must not grant a default judgment until proof of service has 

been on file with the clerk for ten days. TEX. R. CIV. P. 107(h).

Additionally, for publication service:

 The court has a duty to inquire into the sufficiency of the diligence 

exercised in attempting to ascertain the residence or whereabouts of 
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the defendant before granting any judgment on publication service. 

TEX. R. CIV. P. 109.

 Where service has been made by publication, and no answer or 

appearance has been made, the court must appoint an attorney to 

defend the suit on behalf of the respondent. TEX. R. CIV. P. 244.

 A statement of the evidence, approved and signed by the judge, must 

be filed as part of the record. Id.; TEX. FAM. CODE § 6.409(e).

In this case, the record does not reflect that any of these mandatory requirements 

occurred.

B. The Trial Court Did Not Have Personal Jurisdiction Over Husband

Because the Record Does Not Contain Proof of Service

No one has asserted, and we do not find that the record contains any showing,

that a return of service was filed with the trial court as required by Rule 107. As the 

party requesting service of process, Wife had the responsibility to ensure that a return

of service was filed with the trial court. See Primate Constr., 884 S.W.2d at 153. 

The trial court was prohibited from rendering a default judgment against Husband 

where a return of service had not been on file with the clerk of the court for ten days.

TEX. R. CIV. P. 107(h). Without proof of service, we cannot presume that service 

was valid. See Spanton, 612 S.W.3d at 316; Primate Constr., 884 S.W.2d at 152.

When the record fails to show strict compliance with the rules of civil 

procedure, the attempted service of process is invalid and of no effect. See Spanton, 

612 S.W.3d at 317; Uvalde Country Club, 690 S.W.2d at 885; In re J.M.H, No. 12-
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21-00063-CV, 2022 WL 868713, at *2 (Tex. App.—Tyler March 23, 2022, no pet.) 

(mem. op.) (reversing default judgment where record contained no evidence of

proper citation or return of service); Ming Zhe Inc. v. Alvarado, No. 13-19-00532-

CV, 2020 WL 6878733, at *2 (Tex. App.—Corpus Christi-Edinburg November 24, 

2020, no pet.) (mem. op.) (reversing default judgment where record contained a

citation but no completed return of service).

The record does not show that Husband was served. As a result, the trial court 

did not have personal jurisdiction over Husband, and the final decree of divorce is 

void. The trial court acted without reference to guiding rules and principles when it 

granted a default judgment against a respondent who had not been served. 

Accordingly, we conclude the trial court erred when it entered the default decree of 

divorce and when it denied Husband’s motion to set aside the default judgment.

Husband’s first issue is sustained. Based on our resolution of this issue, we 

need not address Husband’s remaining issues.

V. Conclusion

The trial court erred when it entered a default judgment, because the trial court 

lacked personal jurisdiction over Husband. We reverse the trial court’s final decree 

of divorce and remand the case for further proceedings consistent with this opinion.

220068f.p05

/Emily Miskel/

EMILY MISKEL

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

DASHINAU CATO, Appellant

No. 05-22-00068-CV V.

MICHELLE Y. SMITH-CATO, 

Appellee

On Appeal from the 302nd Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. DF-20-12340.

Opinion delivered by Justice Miskel. 

Justices Carlyle and Garcia 

participating.

In accordance with this Court’s opinion of this date, the trial court’s final 

decree of divorce is REVERSED, and this cause is REMANDED to the trial court 

for further proceedings consistent with this opinion.

It is ORDERED that appellant DASHINAU CATO recover his costs of this 

appeal from appellee MICHELLE Y. SMITH-CATO.

Judgment entered this 26th day of May 2023.