Butler v. Butler

Citation. 577 S.W.2d 501 (1978)

Powered by

Law Students: Don’t know your Bloomberg Law login? Register here

Citation577 S.W.2d 501 (1978)

Brief Fact Summary.

Butler (plaintiff) attempted to divorce Butler (defendant).

Synopsis of Rule of Law.

In Texas ,when a defendant intentionally evades service of process, a court may authorize service in any way that is reasonably likely to provide the defendant sufficient notice.

Points of Law - Legal Principles in this Case for Law Students.

Justice Peden, an eminent jurist, writing for the Houston Court of Civil Appeals, stated that in a divorce proceeding involving child support and custody the application of Section 3.26 was constitutionally limited by the due process requirements that: in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice.

View Full Point of Law

The plaintiff filed for divorce from her husband, the defendant, in a Texas court, after he moved to Louisiana, but was unable to serve process on the defendant despite attempting to through 4 Louisiana county sheriff’s departments and a private investigator, due to the defendant evading service of process. After the plaintiff was served with a Louisiana separation and custody action, she was able to track down the defendant, and the court authorized service of process by certified mail to the defendant’s attorney on record. The defendant never showed up and the court entered a divorce decree for the plaintiff.

Issue.

Whether in Texas, when a defendant intestinally evades service of process, a court may authorize service in any way that is reasonably likely to provide the defendant sufficient notice.

Held.

Yes. In Texas ,when a defendant intestinally evades service of process, a court may authorize service in any way that is reasonably likely to provide the defendant sufficient notice.

Discussion.

In Texas when personal service of process is not feasible, then the plaintiff may serve the defendant in any way that is reasonably likely to give notice to the defendant, as long as there is a motion supported by sworn evidence. Here, the court properly held a hearing on the issue and that service was not feasible. The court properly granted a default judgment against the defendant for failing to answer the plaintiff complaint after his attorney was served. There is no evidence the defendant did not receive notice.