## Facts

- Wylie Neal Butler and Nancy Kay Butler lived together in Texas with their two children, Billy Joe and Cynthia Kay.
- On August 12, 1975, Wylie left Texas for Louisiana and took Cynthia Kay with him.
- On August 22, 1975, Nancy filed a divorce and custody suit in a Texas district court.
- Wylie intentionally withheld his and Cynthia Kay’s whereabouts from Nancy and avoided being found for service of process.
- Nancy attempted to locate and personally serve Wylie through four Louisiana sheriff’s departments, a private investigator, and the Louisiana Department of Welfare, but could not effect personal service.
- Nancy later received service of a Louisiana separation and custody action filed by Wylie, which identified his Louisiana attorney of record.
- With investigative assistance, Nancy located and retrieved Cynthia Kay.
- On June 24, 1977, the Texas court authorized substituted service on Wylie by certified mail (return receipt requested) sent to Wylie’s attorney of record in the Louisiana proceeding, James B. Wells.
- The certified-mail citation was delivered to the attorney; the return was filed with the Texas court.
- Wylie filed a special appearance in the Texas case challenging service and the court’s personal jurisdiction, but he did not file an answer on the merits and offered no evidence that he was not subject to Texas jurisdiction.
- The Texas trial court ruled that Wylie had waived his special appearance, proceeded to a default hearing, granted the divorce, appointed Nancy managing conservator, ordered child support, and awarded attorney’s fees.
- Wylie appealed.

## Issues

1. Did the Texas court have in personam jurisdiction over Wylie under the Texas Family Code long-arm provisions when Texas was the last state of marital cohabitation and the suit was filed within two years after cohabitation ended, and when the children had resided in Texas as a result of the parties’ acts?
2. After sworn proof of unsuccessful attempts at personal service and evidence that Wylie was evading service, could the trial court authorize substituted service by certified mail on Wylie’s Louisiana attorney of record in the related Louisiana action consistent with Texas procedure and due process?
3. Did Wylie waive his special appearance by failing to present evidence that he was not amenable to Texas jurisdiction and by limiting his challenge to complaints about service rather than proving a lack of personal jurisdiction?

## Decision

- The court of appeals affirmed the default divorce decree and related orders.
- Texas had in personam jurisdiction over Wylie under the Family Code provisions authorizing jurisdiction over a nonresident spouse and parent based on Texas being the last marital cohabitation state (with suit filed within the statutory time) and the children’s Texas residence tied to the parents’ conduct.
- Substituted service was proper because Nancy showed extensive unsuccessful efforts to personally serve Wylie and evidence that he was intentionally avoiding service; service by certified mail on his Louisiana attorney of record in the related proceeding was reasonably calculated to give notice under the circumstances.
- Wylie’s special appearance was not preserved on this record because he did not carry his burden to show he was not subject to Texas jurisdiction and did not provide evidence negating jurisdiction; the trial court could proceed to judgment after overruling the jurisdictional challenge.

## Legal Principles

- Texas courts may exercise personal jurisdiction over a nonresident spouse in a divorce action under Texas Family Code § 3.26 when Texas was the last state of marital cohabitation and the suit is filed within the statutory period after cohabitation ends.
- Once jurisdiction exists in the divorce action, Texas courts may also exercise jurisdiction in matters affecting the parent-child relationship when Texas Family Code § 11.051 applies, including when the child resides in Texas as a result of a parent’s acts or directives or when the parent has lived with the child in Texas.
- Substituted service may be authorized when personal service is impracticable despite sworn, documented efforts, and the chosen method must be reasonably calculated, under all the circumstances, to provide notice consistent with due process.
- When a defendant is shown to be intentionally avoiding service, a court may authorize alternative methods that are likely to reach the defendant, including service through counsel involved with the defendant in related litigation.
- A party contesting personal jurisdiction by special appearance must support the challenge; failure to present evidence negating statutory and constitutional bases for jurisdiction may result in the challenge being overruled and may be treated as waived on the record presented.
- After valid service and jurisdiction are established (or a special appearance is overruled), a trial court may enter default judgment when the defendant has not answered or defended on the merits.

## Conclusion

In Butler v. Butler, the Texas court of appeals upheld a default divorce, custody, support, and fee award against a husband who moved to Louisiana with one child and concealed his whereabouts, holding that Texas had personal jurisdiction under the Family Code based on Texas being the last marital cohabitation state and the children’s Texas ties, and that substituted service by certified mail on the husband’s Louisiana attorney of record in a related proceeding satisfied Texas procedure and due process given the husband’s evasion and the plaintiff’s exhaustive but unsuccessful attempts at personal service.


Butler v. Butler, 577 S.W.2d 501 (1978)