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IN the INTEREST OF J.Z.P. and J.Z.P., Minor Children

Supreme Court of Texas2016-02-26No. No. 14-1072
484 S.W.3d 924

Summary

Holding. The court reversed the court of appeals' judgment and remanded the case, holding that De La Cruz's motion should have been treated as extending post-judgment deadlines based on its substance rather than its formal designation, entitling her to a timely appeal.

Vicky De La Cruz and Josué Pena divorced in 2009, with De La Cruz receiving primary custody and Pena ordered to pay child support. In 2013, Pena sought to modify the decree. The trial court approved alternative service of process by posting a citation on a door at an address where De La Cruz did not live and where Pena knew she did not live. The trial court granted Pena's modification petition without De La Cruz receiving notice, reversing custody and support obligations. De La Cruz filed a motion to reopen and vacate the order after learning of it weeks later, but both the trial court and court of appeals rejected her motion based on improper captioning rather than examining the substance of her complaint.

The supreme court held that under the Texas Rules of Civil Procedure, courts must look to the substance of relief sought rather than formal pleading titles. De La Cruz's motion clearly requested relief based on lack of proper service and lack of notice of the modification order. The court found that justice required treating her motion as extending post-judgment deadlines for appeal, regardless of its caption.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Whether a motion must comply with specific rule captions to extend post-judgment deadlines
  • Proper service of process when defendant moves without notifying opposing party
  • Whether courts should examine substance or form when evaluating pleadings

Procedural posture

De La Cruz appealed the trial court's denial of her motion to reopen and vacate a modification order, which the court of appeals dismissed for lack of jurisdiction based on improper pleading caption.

Authorities cited

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Cited by (1)

Opinion

majority opinion

PER CURIAM

Vicky De La Cruz and Josué Pena divorced in Amarillo in 2009. The decree gave De La Cruz the exclusive right to determine the primary residence of the couple’s two sons, then ages 8 and 6, and ordered Pena to pay $586.56 in monthly child support. In 2013, after De La Cruz moved with the children to Lubbock for work, Pena moved to modify the divorce decree to obtain the right to determine the children’s residence and to reduce his child support.

Alleging that personal service on De La Cruz had been attempted unsuccessfully at an address supplied by Pena’s counsel, Pena obtained an order allowing alternative service by leaving á copy with anyone over 16 at the same address “or in any other manner that ... evidence before the court shows will be reasonably effective to give [De La Cruz] notice of the suit.” Unable to serve anyone there personally, the process server posted the citation on the door. Two days after the return of service was filed, the trial court granted Pena’s petition to modify, giving him the right to determine the boys’ residence, relieving him of any support obligation, and ordering De La Cruz to pay $251.60 in monthly child support.

The trial court signed its modification order on July 25, 2013. Copies of the order were sent only to Pena and his attorney. On September 20, 2013, 57 days later and after the trial court’s plenary jurisdiction had expired, De La Cruz filed a “Motion to Reopen and to Vacate Order,” stating that neither De La Cruz nor her counsel had been given notice of Pena’s motion to modify and requesting that the matter “be reopened and the Order vacated.” The motion was supported by De La Cruz’s affidavit in which she stated that she had never lived at the address where the citation was posted, that Pena knew her actual address because he had been there many times to pick up the boys for visitation, and that she “first found put on September 16, 2013,. that [Pena] had a new lawyer who filed some kind of motion to modify and obtained some kind of order [but] did not know what the motion and order said until September 17, 2013.” Pena opposed the motion on the sole ground that De La Cruz was at fault for the improper service because she had not notified him and- the trial court of her new address. He did not deny that he knew De La Cruz’s correct address or that De La Cruz .received no notice of the order until the date she stated. The trial court denied De La Cruz’s motion.

The court of appeals dismissed De La Cruz’s appeal for. want of jurisdiction, reasoning that De La Cruz’s motion did not extend the trial court’s plenary jurisdiction and post-judgment deadlines to run from the date she received notice of the trial court’s order because it was not captioned a motion under Rule 306a of the Texas Rules of Civil Procedure. 481 S.W.3d 231 (Tex.App.-Amarillo 2014).

Rule 71 of the Texas Rules of Civil Procedure states: “When a party has mistakenly designated any plea or pleading, the court, if justice so requires, shall treat the plea or pleading as if it had been properly designated.” Tex. R. Crv. P. 71. We have stressed that “courts should acknowledge the substance of the relief sought despite the. formal styling .of the pleading.” Ryland Enter., Inc. v. Weatherspoon, 355 S.W.3d 664, 666 (Tex.2011) (per curiam); see also State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex.1980) (“We look to the substance of a plea for relief to determine the nature of the pleading, not merely at the form of title given to it.”). De La Cruz’s motion plainly requested relief from the trial court’s order on ■ the grounds that she had not been served with citation and had not learned of the trial court’s order until a few days before her motion was filed. Her motion stated that her attorney of record was given no notice ofPena’s modification petition, and court records reflected that notice of the order was sent only to Pena and his attorney. It is. a fair inference that De La Cruz’s counsel learned of the order no earlier than De La Cruz did. See Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 584 (Tex.2006) (per curiam); see also Nathan A. Watson Co. v. Emp’rs Mut. Cas. Co., 218 S.W.3d 797, 802 (Tex.App.Fort Worth 2007, no pet.). Justice plainly required the trial court and cburt of appeals to treat De La Cruz’s motion as extending post-judgment deadlines. Neither court explained its refusal to do so, Pena has not offered any reason not to do so, and we are unable to discern one. Based on the motion and Pena’s response, De La Cruz was entitled to an extension of the time for appeal. Her notice of appeal was timely filed.

Accordingly, we grant De La Cruz’s petition for review and without hearing oral argument, Tex, R. App. P. 59.1, reverse the judgment of the court of appeals and remand the case to that court for further proceedings.

. Specifically, the court stated: "Vicky did not file a Rule 300a motion. Rather, she filed an untimely Motion to Reopen and to Vacate Order, Consequently, no request was made of the trial court to rule on the applicability of Rule 306a.”

. Filed two days after the deadline, De .La Cruzs notice of appeal implied a motion for an extension of time. Hone v. Hanafin, 104 S.W.3d 884, 887 (Tex.2003) (per curiam) (applying Verburgt v. Dorner, 959 S.W.2d 615, 616-17 (Tex.,1997)), Pena has not challenged that the notice of appeal was timely.