Texas = Judiciary Online

MEMORANDUM=20 OPINION

=20 Appellant, Randall Earl Berkefelt, appeals a default = judgment=20 rendered against him in a suit to modify the parent-child=20 relationship. = Berkefelt=20 contends that the default judgment should be reversed because (1) = he was=20 not properly served, (2) the order for alternative service was = defective,=20 and (3) he was not notified by the clerk of the court that any = default=20 judgment was ordered. = Finding=20 error on the face of the record, we reverse and=20 remand.

Background

=20 On October 20, 2006, Appellee Diana Jackson, Berkefelt=92s = ex-wife=20 and the mother of his children, filed a petition to modify the=20 parent-child relationship. = On=20 December 14, the trial court signed an order on a motion, = authorizing=20 Jackson to=20 serve Berkefelt at his home by leaving the citation and petition = with=20 someone over the age of sixteen. =20 The process server filed a return of service on December = 15,=20 stating that the petition had been attached to Berkefelt=92s back = door. On March 26, 2007, the = trial court=20 granted Jackson=92s petition to = modify the=20 parent-child relationship and ordered Berkefelt to pay $2702 in = attorney=92s=20 fees to Jackson. Berkefelt did not appear = at the=20 trial, and thus the judgment was a default = judgment.

According to=20 Berkefelt, he did not receive notice of the trial nor did he = receive=20 notice that a default judgment had been rendered against him. He asserts that he = became aware of=20 the judgment only upon visiting the Attorney-General=92s office to = verify=20 the amount of child support that he owed.

Analysis

A = default=20 judgment cannot withstand a direct attack by a defendant who shows = that he=20 was not served in strict compliance with the Texas Rules of Civil=20 Procedure. Hubicki v. = Festina, 226 S.W.3d 405, 408 = (Tex. 2007); Wilson v. Dunn, 800 = S.W.2d 833,=20 836 (Tex. 1990); McGraw-Hill, Inc. v. = Futrell, 823=20 S.W.2d 414, 416 (Tex. App.=97Houston [1st Dist.] 1992, writ = denied). In contrast to the usual = rule that=20 all presumptions will be made in support of a judgment, there are = no=20 presumptions of valid issuance, service, and return of citation = when=20 examining a default judgment. =20 Uvalde Country = Club v.=20 Martin Linen Supply Co., 690 S.W.2d 884, 885 (Tex. = 1985); McGraw-Hill, 823 S.W.2d = at=20 416. Jurisdiction = over the=20 defendant must affirmatively appear by a showing of due service of = citation, independent of the recitals in the default judgment. Faggett v. = Hargrove, 921 S.W.2d 274, 276 (Tex.=20 App.=97Houston [1st Dist.] 1995, no writ); Mass. Newton Buying Corp. v. = Huber, 788 S.W.2d 100, 102 (Tex. App.=97Houston [14th Dist.] = 1990, no=20 writ).

Texas = Rule of=20 Civil Procedure 106 authorizes a court to order a substitute = method of=20 service. Tex. R. Civ. = P.=20 106(b). =93Where = citation is=20 executed by an alternative method as authorized by Rule 106, proof = of=20 service shall be made in the manner ordered by the court.=94 Tex. R. Civ. P. = 107. When a trial court = orders=20 substituted service under Rule 106, the only authority for the = substituted=20 service is the order itself. =20 Dolly v. Aethos = Commc=92ns=20 Sys., Inc., 10 S.W.3d 384, 388 (Tex. App.=97Dallas 2000, no = pet.); Broussard v. Davila, 352 = S.W.2d=20 753, 754 (Tex. Civ. App.=97San Antonio 1961, no writ). Because the trial = court=92s order is=20 the sole basis of authority authorizing substituted service, any = deviation=20 from the trial court=92s order necessitates a reversal of the = default=20 judgment based on service. Becker=20 v. Russell, 765 S.W.2d 899, 900 (Tex. App.=97Austin 1989, no=20 writ).

Here, = Jackson = served=20 Berkefelt using substitute service under Rule 106. Jackson = was required=20 to follow the trial court=92s instructions exactly when serving=20 Berkefelt. = Id. The trial court required = that=20 service be effected by =93leaving a copy of the citation with = pleadings and=20 orders attached . . . with anyone over sixteen years of age at = that=20 address.=94 The = return of=20 service showed that the process server attached the citation and = petition=20 to Berkefelt=92s back door. =20 Because the return of service is prima facie evidence of = how=20 service was performed, it proves that the order was not left with = someone=20 over the age of sixteen as instructed by the trial court. See Primate Constr., Inc. v. = Silver, 884 S.W.2d 151, 152 (Tex. 1994) (holding that return = of=20 service is considered prima facie evidence of facts recited=20 therein);=20 Furst=20 v. Smith,=20 176 S.W.3d 864, 872 (Tex. App.=97Houston [1st Dist.] 2005, no=20 pet.).

The = trial court=92s=20 order amounted to the only legal authorization for Jackson=92s=20 actions. When = Jackson = failed to=20 strictly follow the order, she violated Rule 106 of the Texas = Rules of=20 Civil Procedure. See Vespa v. Nat=92l Health = Ins.=20 Co., 98 S.W.3d 749, 752 (Tex. App.=97Fort Worth 2003, = no pet.)=20 (holding that service was invalid when return of service stated = citation=20 and petition were left on door contrary to trial court=92s = instructions=20 requiring citation, petition and court order to be = placed on=20 door). Violation of = Rule 106=20 makes the service of process invalid and of no effect. See Wilson, 800 S.W.2d at = 836. Defective service of = process=20 removes the trial court=92s jurisdiction over the defendant. See id. (holding that = jurisdiction=20 is dependent upon citation issued and served in a manner provided = for by=20 law). Because = service was=20 defective in this case, the trial court lacked jurisdiction to = grant the=20 default judgment.

Conclusion

=20 We hold that service was defective and therefore the trial = court=20 lacked jurisdiction to grant a default judgment. We thus reverse the = default=20 judgment and remand the case to the trial court for further=20 proceedings.

&nbs= p; = ; = &= nbsp; =20 Jane=20 Bland

&nbs= p; = ; = &= nbsp; =20 Justice

Panel = consists of=20 Justices Jennings, Hanks, and Bland.