Opinion
No. 01-07-1102-CV
Opinion issued January 29, 2009.
On Appeal from the 246th District Court, Harris County, Texas, Trial Court Cause No. 2006-25436.
Panel consists of Justices JENNINGS, HANKS and BLAND.
MEMORANDUM OPINION
Appellant, Selene Lara Mateos Baqdounes, appeals the trial court's grant of summary judgment in favor of her alleged common law husband, Nazir Baqdounes. We reverse and remand.
Background
In March 1988, Victor Bravo ("Victor") and Selene Lara Mateos ("Selene") registered their informal marriage in Harris County, Texas. On September 6, 1988, Selene gave birth to Bianca Bravo, the undisputed child of Victor. Victor abandoned Selene and Bianca on or about January 1, 1989.
Sometime in 1990, Selene and Nazir Baqdounes ("Nazir") moved in together and lived together for at least the next 16 years. In 1994, Selene gave birth to Karima Baqdounes.
After giving birth to Karima, Selene filed for divorce from Victor. Selene's divorce from Victor included a Suit Affecting the Parent-Child Relationship ("SAPCR") naming Bianca as the child of the Selene-Victor marriage; the SAPCR did not mention Karima. Selene received a divorce decree on May 2, 1997. The divorce decree named Bianca as a child of the Selene-Victor marriage and also did not mention Karima. The Selene-Victor divorce decree was entered on May 2, 1997. Selene continued to lived with Nazir and bore another child, Najwa Baqdounes, in 1999.
In 2006, Selene filed a suit for divorce from Nazir and a SAPCR regarding Karima and Najwa. In a deposition, she testified that she and Nazir had lived together and had a common law marriage from "on or about May 3, 1997," the day after her divorce from Victor. Selene later amended her pleadings to state that her marriage to Nazir occurred "on or about June 4, 1997." Nazir filed a counter-petition to dissolve his marriage to Selene, including a SAPCR regarding Karima and Najwa. Both Selene and Nazir's pleadings identified Karima and Najwa as the children of their marriage.
Nazir sought summary judgment to void his marriage to Selene on the grounds that (1) Selene's prior marriage to Victor had not been properly dissolved because it failed to include a SAPCR for Karima who was born during the time Selene was still married to Victor, and (2) Selene had married Nazir less than 30 days after the final judgment in her divorce from Victor. The trial court entered judgment in Nazir's favor, finding that the marriage between Selene and Nazir was void.
Standard of Review
We review the granting of a summary judgment de novo. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994). A traditional summary judgment under Rule 166a(c) is properly granted only when the movant establishes that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. TEX. R. CIV. P. 166a(c); Provident Life Accid. Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). In deciding whether there is a disputed material fact precluding summary judgment, evidence favorable to the nonmovant will be taken as true, every reasonable inference must be indulged in favor of the nonmovant, and any doubts must be resolved in favor of the nonmovant. Knott, 128 S.W.3d at 215. Where, as here, a trial court's order granting summary judgment does not specify the ground or grounds relied upon for its ruling, summary judgment will be affirmed on appeal if any of the summary judgment grounds advanced by the movant are meritorious. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (citing Carr v. Brasher, 776 S.W.2d 567, 569 (Tex. 1989)).
There is some confusion as to whether Nazir's summary judgment was a traditional or ano-evidence motion. Nazir refers to the motion as no-evidence, but provided evidence, cited rule166a(c), and did not specify the elements of Selene's claim allegedly without evidence. TEX. R. CIV.P. 166a, Comment 1997 (Rule 166a(i) requires that a no-evidence motion "be specific in challengingthe evidentiary support for an element of a claim or defense. . . ."). Even Selene acknowledges thereference to 166a(i) was likely a clerical error. Accordingly, we review Nazir's motion as underRule 166a(c).
Analysis
Selene argues that (1) the trial court erred by granting summary judgment on the ground that her divorce from her first husband, Victor, was void; (2) the trial court allowed an impermissible collateral attack on her divorce decree from Victor; (3) her daughter, Karima, was not an indispensable party to her divorce from Victor, and thus the failure to include Karima in that divorce decree did not render the judgment void; and (4) the trial court erred by granting summary judgment on the grounds that Selene admitted she entered into a common law marriage with Nazir less than 30 days following her divorce from Victor.
I. Nazir's Collateral Attack on the Selene-Victor Divorce Decree
Nazir's attack on the prior Selene-Victor divorce judgment does not attempt to secure the rendition of a single, correct judgment in place of an earlier one. Instead, Nazir argues that Selene's divorce from Victor is invalid. Nazir therefore brings a collateral attack on the Selene-Victor divorce decree. See Solomon, Lambert, Roth Assocs., Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex.App.-Houston [1st Dist.] 1995, no writ); Ramsey v. Ramsey, 19 S.W.3d 548, 552 (Tex.App.-Austin 2000, no pet.) (holding that a collateral attack is an attempt to avoid the effect of a judgment in a proceeding brought for some other purpose). A void judgment may be collaterally attacked in another court of equal jurisdiction. See Browning v. Placke, 698 S.W.2d 362, 363 (Tex. 1985) (per curiam). However, a judgment is only void if the trial court lacked jurisdiction over the parties or the subject matter in controversy. Berry v. Berry, 786 S.W.2d 672, 673 (Tex. 1990).
All errors other than jurisdictional deficiencies render the judgment merely voidable, andsuch errors must be corrected on direct attack. Browning, 698 S.W.2d at 363.
Extrinsic evidence may not be used to establish a lack of jurisdiction in a collateral attack. Holloway v. Starnes, 840 S.W.2d 14, 18 (Tex.App.-Dallas 1992, writ denied); Huffstutlar v. Koons, 789 S.W.2d 707, 710 (Tex.App.-Dallas 1990, orig. proceeding) (en banc). "If a court having potential jurisdiction renders a judgment when the potential jurisdiction has not been activated and the defect is apparent from the face of the judgment, then the judgment is void and subject to either direct or collateral attack." Waldron v. Waldron, 614 S.W.2d 648, 650 (Tex.Civ.App.-Amarillo 1981, no writ) (emphasis in original) (citing Fulton v. Finch, 346 S.W.2d 823, 827 (Tex. 1961) ("A judgment which discloses its invalidity upon its face anywhere at any time is a nullity and may be disregarded anywhere at any time.")). If, however, a court having potential jurisdiction renders a judgment that is regular on its face and which contains recitations stating that the court's potential jurisdiction has been activated, the judgment is voidable, not void, and may be set aside only by direct attack. Id. Jurisdictional recitals in the judgment control the rest of the record so that, even though other parts of the record show a lack of jurisdiction, if the judgment recites the contrary, the collateral attack fails. Holloway, 840 S.W.2d at 18; Huffstutlar, 789 S.W.2d at 710. Nazir argues that the Selene-Victor divorce judgment is void for jurisdictional deficiencies, but Nazir must prove these deficiencies from the face of the judgment and not from extrinsic evidence. Id.
The Selene-Victor 1997 Final Decree of Divorce jurisdictional recitals stated:
The Court finds that the pleadings of Petitioner are in due form and contain all the allegations, information, and prerequisites required by law. The Court, after receiving evidence, finds that it has jurisdiction over this cause of action and the parties and that at least 60 days have elapsed since the date the suit was filed. The Court finds that Petitioner has been a domiciliary of this state for at least a six-month period preceding the filing of this action and a resident of the county in which this suit is filed for at least a 90-day period preceding the filing of this action. All persons entitled to citation were properly cited.
The precise language used in the Selene-Victor decree has been found sufficient to establish the requisite jurisdictional bases for a valid judgment. See Ramsey, 19 S.W.3d at 552-53. Jurisdictional recitations in a judgment that is regular on its face import absolute verity and can be attacked only directly, not collaterally. Akers v. Simpson, 445 S.W.2d 957, 959 (Tex. 1969); Solomon, Lambert, Roth Assocs. Inc, 904 S.W.2d at 901.
Nazir also supported his collateral attack on the 12-year-old Selene-Victor divorce judgment with evidence that Karima was born during the term of the Selene-Victor marriage and thus statutory presumption mandated her joinder as a child of the Selene-Victor marriage. However, Nazir's evidence does not show a defect on the face of the divorce judgment but presents evidence extrinsic to the recitals of the judgment. Waldron, 614 S.W.2d at 650; Holloway, 840 S.W.2d at 18; Huffstutlar, 789 S.W.2d at 710. Nazir may not successfully challenge the jurisdictional recitals which are not deficient on their face. Akers, 445 S.W.2d at 959; Solomon, Lambert, Roth Assocs., Inc., 904 S.W2d at 901. Accordingly, Nazir can not prevail in his collateral attack. Simms Oil Co. v. Butcher, 55 S.W.2d 192, 194 (Tex.Civ.App.-Dallas 1932, writ dism'd). Selene's issues one and two are sustained. We need not reach Selene's third issue.
Nazir argued that Karima was a child of the Selene-Victor marriage under the statutorypresumption that a child born during the term of marriage is a child of the marriage. TEX. FAM. CODEANN. § 160.204(a)(1). To prove that Karima was born during the term of the Selene-Victor marriage, Nazir presented deposition excerpts from the Selene-Nazir divorce suit and Karima's birthcertificate.
Selene asserted, and the record illustrates, facts sustaining the competing presumptions thatKarima was not a child of the Selene-Victor marriage and that Nazir, in fact, was Karima's father.We note that the record contains testimony from Selene and judicial admissions from Nazir thatKarima was Nazir's child, and not a child of the Selene-Victor marriage. The record reveals thatVictor abandoned Selene and Bianca in 1989, that Selene had lived with Nazir since about 1990, thatKarima was born in 1994, and that Victor knew Selene was pregnant with Mr. Baqdounes' child. Nazir attached the following testimony to his summary judgment motion:
Q. Okay. There is no mention of your daughter Karima Baqdounes, inthat decree. Why is that?
A. Because that was Nazir's daughter.
. . .
Q. Okay. You clearly had given birth to Karima in your relationship withMr. Baqdounes before you went back down to court to seek a divorceApril 24th of 1997, correct?
A. I had sought a divorce way before that.
Q. Who paid for the care you received in connection with your pregnancywith Karima?
A. Mr. Baqdounes, Nazir did.
. . .
Q. Was — did you ever tell Mr. [Victor] Bravo that you were pregnantwith Mr. Baqdounes' child?
A. Yeah. . . .
Q. Now, at the time of your divorce..., how many children did you have?
A. Oh, two.
Q. One of them was from Victor, and one of them was from Nazir.
A. Yeah. . . .
II. The Selene-Nazir marriage
Nazir argues on appeal that even if the Selene-Victor divorce is valid, Selene's testimony that her marriage to Nazir began within 31 days of the divorce renders her marriage to Nazir void under section 6.801 of the Family Code, which provides that neither party to a divorce may marry a third party before the 31st day after the date the divorce is decreed. TEX. FAM. CODE. ANN. § 6.801 (Vernon 1997). Selene testified that she was married to Nazir on May 3, 1997, one day after the Selene-Victor divorce decree was signed. Selene's operative pleadings state that her marriage to Nazir began on June 4, 1997. The record supports a common law marital relationship between the parties wherein it contains Nazir's admission of marriage and Selene's testimony that the parties had agreed to be married, had lived together in Texas as husband and wife, and had represented to others they were married since at least June 4, 1997. TEX. FAM. CODE ANN. §§ 2.401, 6.202(b) (Vernon 1997).
While a marriage is void if entered into when either party has an existing marriage to another person which has not been dissolved by legal action or terminated by the death of the other spouse, the later marriage becomes valid when the prior marriage is dissolved if, after the date of the dissolution, the parties have lived together as husband and wife and represented themselves to others as being married. TEX. FAM. CODE ANN. § 6.202(a), (b) (Vernon 1997). The term of the Selene-Nazir marriage applies prospectively from and after the time of the dissolution of the prior marriage to Victor. Caddel v. Caddel, 486 S.W.2d 141, 145 (Tex.Civ.App.-Amarillo 1972, no writ); see White v. City of Quanah, 88 Tex. 14, 28 S.W. 1065 (1894). The judicial admissions in both parties' pleadings and the clerk's record sufficiently support a common law marital status after June 4, 1997. Thus, we hold that the legal marriage relationship in this case, although common law in character, had its inception on June 4, 1997, the time of the divorce judgment in the previously outstanding marriage between Selene and Victor, and the marriage of the parties of this suit is valid from and after that date. We sustain Selene's fourth issue.
Conclusion
In view of the foregoing, the judgment granting Nazir's motion for summary judgment is reversed and the cause is remanded to the trial court for further proceedings consistent with this opinion.