Case of the Day: Chukkapalli v. Mandava
Posted on July 11, 2017
The case of the day is Chukapalli v. Mandava (Tex. Ct. App. 2017). The case was a divorce case. The couple had resided in India, but the wife moved to Texas and then filed a divorce petition there. The wife’s counsel sought to serve the husband by personal delivery in India via a process server apparently appointed by an Indian court, but the husband refused to accept the papers. The wife also served process by publication in Texas, which (I will assume) was permissible under Texas law. On this basis, when the husband did not appear, the Texas court granted the wife a divorce. The husband then moved for a new trial on the grounds that he had not been properly served with process. The trial court denied the motion, and the husband appealed.
The court reversed. It correctly held that the service via the Indian process server was improper under the Hague Service Convention: India has objected to service under Article 10. The court’s language here was a bit confused, but it reached the right result.
The court’s discussion on service by publication was more troublesome:
As to whether Chukkapalli was served by publication, nothing in The Hague Convention expressly disavows service by publication. However, because service under the Convention is required to be transmitted through India’s Central Authority, it does not appear that service by publication by posting the citation at the courthouse door in Dallas County, Texas, when Chukkapalli was known to be in India, comports with the terms of the Convention.
Not quite. The mistake here is in the assertion that “service under the Convention is required to be transmitted through India’s Central Authority.” The assertion is right as far as it goes, but the court failed to ask the first question: does the Convention apply to service by publication? Was there, as Article 1 puts it, an occasion to transmit a judicial document for service abroad? If the wife was correct and service by publication alone was sufficient under Texas law—a point on which I express no view—then it seems there was no occasion to transmit a document abroad for service, and thus no problem of service under the Convention. Article 15 and 16 of the Convention provide protection to defendants in default judgment cases, but again, only when the case is within the scope of the Convention, i.e., only when there was an occasion to transmit a document abroad for service.
So if the wife was right about Texas law on service by publication, then the case was rightly decided, and if not, then not. It’s worth noting that there may be special reasons why service by publication should be allowed in divorce cases, particularly when, as here, the petitioning spouse is simply seeking a divorce and not seeking any division of property. It’s also worth questioning whether Texas law really does allow service by publication without more when a defendant’s address is known: even in the case of notification au parquet, a notice had to be sent to the defendant (though the service was valid even if the notice was never received). See Stephen F. Downs, The Effect of the Hague Convention on Service Abroad of Judicial and Extrajudicial Documents In Civil or Commercial Matters, 2 Cornell Int’l L. J. 125, 129-30 (1969). There could also be a due process issue, though it hasn’t been squarely raised in the decision.