Texas Supreme Court Opts for Substance over Technicality in Reversing Default Custody Modification

Archive, Blog, Brad M. LaMorgese, News

Today, February 26, 2016, the Texas Supreme Court has released In re J.Z.P. In this case, the mother was originally designated as the parent who could determine the children’s primary residence and father was ordered to pay child support to mother.
After mother moved from Amarillo to Lubbock, father moved to modify. Father purported to serve mother by alternate service by posting a citation on a door, and later obtained a default judgment, giving him the right to determine primary residence and ordering mother to pay support. The judgment was only sent to father and his attorney.
After time for appeal expired, mother became aware of the default judgment. She moved to “reopen” the case and vacate the default judgment. She stated she never lived at the address where the citation was posted, and that father knew her actual address from the visitation exchanges.
The trial court denied the mother’s motion, and the court of appeals’ dismissed her appeal for lack of jurisdiction for essentially filing improperly because she did not caption her motion specifically as a Rule 306a motion.
In reversing that decision in a per curiam opinion, the Texas Supreme Court recited Rule of Procedure 71, that a court should treat a pleading as properly captioned if justice requires. Thus, “Justice plainly required the trial court and court of appeals to treat [mother’s] motion as extending post-judgment deadlines.” The mother was entitled to the extension to file her appeal, and the matter was remanded back to the court of appeals.