Opinion
No. 05-08-00173-CV
Opinion Filed July 1, 2009.
On Appeal from the 256th Judicial District Court, Dallas County, Texas, Trial Court Cause No. DF05-00985-Z.
Before Justices MOSELEY, O'NEILL, and MURPHY.
Opinion By Justice O'NEILL.
OPINION
This case involves whether the trial court properly determined a default order for confirmation of child support was void based on the Attorney General's failure to properly serve the father under Texas Family Code chapter 233. In five issues, the Attorney General argues (1) the trial court lacked plenary jurisdiction to declare the May 5, 2005 child support review orders void; (2) Timothy L. Tave, the father, cannot collaterally attack the recitations in the child support review orders; (3) Tave submitted to the trial court's jurisdiction and waived his complaint of lack of personal service by making an appearance; (4) Tave was properly served with the child support review documents that led to the establishment of his paternity and child support obligation; and (5) service under section 233.021 of the family code does not deprive parties of due process or equal protection. We reverse and remand for further proceedings.
Background
In January 2005, the Attorney General filed a petition for confirmation of a non-agreed child support review order establishing Tave as D.L.S.'s father and ordering him to pay child support. The record contains a "Form 329-Notice" addressed to Timothy L. Tave. The officer's return states Tave was personally served "a true copy of this Notice" at his home on February 24, 2005 at 2:36 p.m.
An associate judge signed a default order confirming the non-agreed child support review order on May 5, 2005. In August 2005, the Attorney General filed a motion for enforcement of child support and medical support, as well as contempt. In December, the court determined Tave was not represented by an attorney and appointed the public defender to represent him.
The parties then filed trial briefs with the associate judge arguing their positions as to whether the child support review order was void because the trial court lacked jurisdiction over Tave due to the Attorney General's failure to serve him with citation in conformity with the Texas Rules of Civil Procedure. On January 11, 2006, the associate judge signed an order declaring the May 5, 2005 orders entitled "Default Order Confirming Non-Agreed Child Support Review Order" and "Non-Agreed Child Support Review Order" null and void "because the Court lacked jurisdiction over the Respondent, Timothy Tave, because of a failure to serve him with citation as required by the Texas Family Code and the Texas Rules of Civil Procedure." The Attorney General immediately appealed the associate judge's order.
The public defender then filed a written answer on behalf of Tave arguing the court lacked personal jurisdiction over him, he was denied due process of law because the Attorney General failed to properly notify him of the impending action, and the order was null and void because notice was given in accordance with section 233.021 of the family code, which denies parties equal protection under the law. The Attorney General then filed a response brief. On November 6, 2007, the trial court denied the Attorney General's appeal and declared both May 5, 2005 orders null and void ab initio.
The Attorney General then filed a request for findings of fact and conclusions of law; however, the trial court never filed any, and the record does not show any further requests for late findings of fact and conclusions of law. The Attorney General also filed a motion to vacate judgment or in the alternative, a motion for new trial. The trial court denied the motion for new trial on January 10, 2008 and this appeal followed.
Discussion
Although not extensively briefed or argued by the parties at oral argument, the Attorney General contends in its second issue that Tave cannot collaterally attack the recitations in the child support review orders. Although Tave responds he may collaterally or directly attack the May 5, 2005 orders, we do not agree. Because we conclude the Attorney General's second issue is dispositive of the appeal, we address it first.
In their briefs and during oral argument, both parties mainly focused on whether service of process was adequate under family code chapter 233.
We must first determine whether Tave challenged the trial court's orders through a direct or collateral attack because this determination affects our review. A direct attack is a proceeding instituted to correct an earlier judgment and to secure the entry of a single, proper judgment. Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973). This relief may be obtained on the basis of any error that probably caused the rendition of an improper judgment. Id. Examples of direct attacks include appeals, motions for new trial, and equitable bills of review. In a direct attack, the challenger alleging he was not properly served with citation is not limited to the face of the record or bound by jurisdictional recitations in the challenged judgment. Min v. Avila, 991 S.W.2d 495, 499-500 (Tex.App.-Houston [1st Dist.] 1999, no pet.); Holloway v. Starnes, 840 S.W.2d 14, 18 (Tex.App.-Dallas 1992, writ denied) (noting in a bill of review, no presumptions are indulged in support of the judgment's validity).
A collateral attack is an attempt to avoid the binding force of the judgment in a separate proceeding brought for some other purpose. Toles v. Toles, 113 S.W.3d 899, 914 (Tex.App.-Dallas 2003, no pet.). A judgment is void for purposes of a collateral attack only if the court had no jurisdiction over the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to act as a court. Id. All other errors make the judgment merely voidable, and may only be corrected through direct attack. Id.
When reviewing a collateral attack, we presume the validity of the judgment under attack. Id. Extrinsic evidence may not be used to establish a lack of jurisdiction when collaterally attacking a judgment. Id.; Holloway, 840 S.W.2d at 18. A collateral attack fails if the judgment contains jurisdictional recitals, even if other parts of the record show a lack of jurisdiction. Toles, 113 S.W.3d at 914. Thus, jurisdictional recitals in a judgment that is regular on its face import absolute verity and can be attacked only directly, not collaterally. Solomon, Lambert, Roth Assoc., Inc. v. Kidd, 904 S.W.2d 896, 901 (Tex.App.-Houston [1st Dist.] 1995, no writ) (citing Akers v. Simpson, 445 S.W.2d 957, 959 (Tex. 1969)).
It is undisputed Tave did not file a motion for new trial or any other document to extend his appellate deadlines for challenging the trial court's May 5 orders. The Supreme Court of Texas has determined that when the time for filing a motion for new trial has expired and relief may not be obtained by appeal, a bill of review is the exclusive method of vacating a default judgment rendered in a case in which the court had jurisdictional power to render it. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961); see also Urso v. Lyon Fin. Servs., Inc., 93 S.W.3d 276, 279 (Tex.App.-Houston [14th Dist.] 2002, no pet.). "Into this category will fall those cases in which a default judgment is asserted to be void for want of service, or of valid service, or process." McEwen, 162 S.W.2d at 710.
We have nothing in the record before us that can be construed as a bill of review by Tave directly attacking the trial court's orders. A bill of review is a new suit filed in the same court rendering the original judgment, and it must be verified. Phillips v. Dallas County Child Protective Servs. Unit, 197 S.W.3d 862, 866 (Tex.App.-Dallas 2006, pet. denied). To invoke the equitable powers of the court, the petitioner asking for a bill of review must allege and present prima facie proof (1) that he has a meritorious claim or defense, (2) that he was prevented from asserting by fraud, accident, or wrongful act of the opposite party or official mistake, and (3) without any fault or negligence of his own. Id. However, a petitioner claiming non-service is relieved of proving the first two elements in his bill of review proceeding. Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004). Here, even though Tave would be relieved of proving the first two elements in a bill of review, we still have no verified document in the record instigating a new suit that argues the third required element. Because we have nothing in the record meeting the criteria for a bill of review, we must consider Tave's challenge to the trial court as a collateral attack on the judgment and will review it accordingly.
On May 5, 2005, the associate judge entered a "Default Order Confirming Non-Agreed Child Support Review Order." The order states "The Court finds that all prerequisites of law have been satisfied and that the Court has personal and subject matter jurisdiction." Because the order contains jurisdictional recitals and we are bound by the verity of these recitals, Tave's collateral attack fails. Toles, 113 S.W.3d at 914 (concluding judgment contained sufficient language to establish the jurisdictional basis for a valid judgment). Although a review of the record shows Tave was not properly served the "Form 329-Notice" based on the recitals in the officer's return, we are not allowed to consider such evidence. Id. (noting a collateral attack fails even if other parts of the record show a lack of jurisdiction). As such, we conclude the "Default Order Confirming Non-Agreed Child Support Review Order" and "Non-Agreed Child Support Review Order" is at most voidable and not void and may not be collaterally attacked. Thus, Tave's only avenue for challenging the trial court's orders was through a direct attack, which he failed to do. See, e.g., Solomon, Lambert, Roth Assoc., Inc., 904 S.W.2d at 91. Thus, we sustain the Attorney General's second issue.
Tave cites to Alfonso v. Skadden, 251 S.W.3d 52 (Tex.), cert. denied, 129 S. Ct. 402 (2008) for the proposition that we may examine the record to determine if jurisdiction is negated in spite of recitations in the judgment. We do not agree. In that case, the court examined the entire record and concluded the trial court lacked subject matter jurisdiction, which cannot be waived and may be raised by a party at any time. Here, Tave has only challenged the trial court's lack of personal jurisdiction over him and not subject matter jurisdiction. Thus, we do not find Alfonso controlling.
Having sustained this issue, we need not address the Attorney General's remaining issues. We reverse the trial court's November 6, 2007 order and remand for further proceedings.
Although we question whether the standard set out in chapter 233 of the family code is sufficient for service of process, as thoroughly briefed and argued by both parties, we acknowledge that to address such arguments would result in an improper advisory opinion. Chambers v. Pruitt, 241 S.W.3d 679, 688 (Tex.App.-Dallas 2007, no pet.).