In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-24-00491-CV ___________________________
IN RE M.R., Relator
Original Proceeding 233rd District Court of Tarrant County, Texas Trial Court Nos. 233-743978-23 & 233-725963-22
Before Birdwell, Bassel, and Walker, JJ. Memorandum Opinion by Justice Birdwell MEMORANDUM OPINION
Relator M.R. (Wife) 1 seeks mandamus relief from the trial court’s Order
Declaring Agreed Final Decree of Divorce Void. In one issue, Wife argues that the
Agreed Final Decree of Divorce is not void and that the trial court abused its
discretion by setting it aside. We conditionally grant Wife’s petition in part.
I. BACKGROUND
Real Party in Interest M.M. (Husband) and Wife were married in 1997 and had
two children. Husband was born and raised in Canada; Wife was not but became a
Canadian citizen during their marriage. The family resided in Canada until 2019 when
Wife and the children moved to Texas because Wife had received a scholarship from
Texas Christian University and wanted to pursue her master’s degree. The couple had
planned for Husband to join Wife and the children in Texas after Wife finished
school, but shortly after she graduated in 2021, Wife informed Husband that she
wanted a divorce. Wife did not file for divorce, however, until 2022.
Husband and Wife entered into an Informal Settlement Agreement and an
Agreed Final Decree and filed both documents with the trial court in February 2023.
See Tex. Fam. Code Ann. § 7.006(a) (“To promote amicable settlement of disputes in
a suit for divorce or annulment, the spouses may enter into a written agreement
concerning the division of the property and the liabilities of the spouses and
To protect the identity of their minor child, we identify Relator and Real Party 1
in Interest by their initials or as Husband and Wife. See Tex. Fam. Code Ann. § 109.002(d).
2 maintenance of either spouse.”). Important to the issues in this case, the Agreed Final
Decree awarded a Canadian property identified as “Lot 11” to Wife as her sole and
separate property and awarded each spouse “a 50% undivided interest” in another
Canadian property identified as “Lot 12.” The decree also made provisions for the
sale of Lot 12. The trial court signed the Agreed Final Decree on February 8, 2023.
On October 30, 2023, Wife filed a petition to modify the SAPCR 2 provisions
of the Agreed Final Decree, claiming that Husband had “committed aggravated
emotional domestic violence . . . during the children’s scheduled July 2023 summer
visitation.”3 Then, on December 7, 2023, Husband filed a Petition for Bill of Review
seeking to set aside the Agreed Final Decree in its entirety. According to Husband,
Wife was “extremely emotionally, verbally, and physically abusive” to him during their
marriage. Husband claimed that although he and Wife had “prepared typed provisions
pertaining to the division of their marital estate and a parenting plan, having discussed
and negotiated the terms between themselves, . . . the Informal Settlement Agreement
and Final Decree of Divorce divided the marital estate in a wholly different way than
the parties had agreed to” divide it. Husband alleged that he “did not read either the
Informal Settlement Agreement or Final Decree, having relied on [Wife]’s specific
2 Suit affecting the parent–child relationship. See Tex. Fam. Code Ann. § 101.032(a). 3 According to the record, the trial court set a temporary orders hearing on Wife’s petition to modify for February 6, 2024.
3 representations that they contained their exact agreed terms that had been previously
typed up by them.”
He further alleged that, in presenting him with documents that differed from
their agreement, Wife had “breached [a fiduciary] duty [to him] by taking advantage of
him and his extreme anxiety and fragile mental state, without counsel, and without
informing him that she was represented by independent counsel.” Husband did not
argue that the trial court had lacked personal jurisdiction over him when it signed the
Agreed Final Decree.
Wife entered a general denial to Husband’s petition, which the trial court heard
on February 5, 2024. 4 At the hearing, Husband testified that he “was born with severe
anxiety and panic attacks.” He explained that his eyes and his brain worked “at
different speeds” and that it was “very difficult” for him to focus and hard for him to
fully comprehend what he reads.
While Husband was still on the witness stand, the trial court abruptly stopped
the proceeding and expressed the belief that it did not “have the authority to divide
the property in Canada” when it had rendered the Agreed Final Decree and that,
because it therefore had to “set this [case] aside[, there was] no need to continue with
4 As a pretrial matter, a bill-of-review plaintiff usually must present prima facie proof to support his essential contention that he had a meritorious defense to the underlying cause of action. Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979). This preliminary showing at the prima facie hearing is necessary “to assure the court that valuable judicial resources will not be wasted by conducting a spurious ‘full-blown’ examination of the merits.” Id.
4 this matter.” The trial court made an oral finding that the property division in the
Agreed Final Decree was “a void order because [this court] does not have jurisdiction
over that property.”5 The trial court then set aside the entire Agreed Final Decree and
declared that Wife’s requested modification was “no longer valid as the divorce has
not happened.”6
On April 18, 2024, Wife filed a motion asking the trial court to reconsider its
oral ruling. Meanwhile, Husband submitted a proposed order granting his bill of
review and moved the trial court to sign the order. The trial court heard Wife’s
motion on May 31, 2024. After hearing the arguments of counsel, the trial court stood
by its decision to “set aside” the entire Agreed Final Decree for want of jurisdiction.
Following the hearing, Husband submitted a revised order granting his bill of review
for the trial court to sign. But instead of signing Husband’s proposed order, the trial
court signed an order stating,
On February 5, 2024, the [trial c]ourt considered the prima faci[e] portion of [Husband]’s Bill of Review, and during the course of the prima faci[e] proceeding the [trial c]ourt determined that the underlying Agreed Final Decree of Divorce was void for lack of jurisdiction.
It is therefore ORDERED that the Agreed Final Decree of Divorce is declared void for lack of jurisdiction.
5 The trial court appears to have raised this jurisdictional issue sua sponte. The first mention of it that we find in the record is Wife’s attorney’s statement at the prima facie hearing that the trial court had “expressed concern that it lack[ed] the authority to award real property that’s located in Canada.” 6 Based on this declaration, it appears that the temporary orders hearing that had been scheduled for February 6, 2024, never took place.
5 Further, because the Agreed Final Decree of Divorce is void, the Bill of Review is dismissed.
On October 10, 2024, Husband filed his Counterpetition for Divorce and
Request for Temporary Orders in response to Wife’s 2022 divorce petition. On
October 15, 2024, the trial court set a hearing on Husband’s request for temporary
orders for November 20, 2024. On November 6, 2024, Wife petitioned this court for
a writ of mandamus and also requested that we stay the trial court proceedings on
Husband’s request for temporary orders. We granted Wife’s request in part by staying
the trial court’s order “until further order of this court.” Husband timely filed a
response to Wife’s petition, and Wife timely filed a reply to Husband’s response.
Having reviewed the parties’ arguments and the record they have provided, we have
determined that Wife is entitled to mandamus relief.
II. DISCUSSION
We begin by setting forth the applicable standard of review.
A. Standard of Review
Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 25
(Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show both
that the trial court clearly abused its discretion and that the party has no adequate
remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig.
proceeding).
6 A trial court abuses its discretion when its decision is arbitrary, unreasonable,
and without reference to guiding principles. Id.; see Walker v. Packer, 827 S.W.2d 833,
839–40 (Tex. 1992) (orig. proceeding). We defer to a trial court’s factual
determinations that have evidentiary support, but we review the trial court’s legal
determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)
(orig. proceeding). An error of law or an erroneous application of the law to the facts
is always an abuse of discretion. See In re Geomet Recycling LLC, 578 S.W.3d 82, 91–92
(Tex. 2019) (orig. proceeding).
An appellate remedy’s adequacy has no specific definition; “the term is ‘a proxy
for the careful balance of jurisprudential considerations’ [that implicate both public
and private interests,] and its meaning ‘depends heavily on the circumstances
presented.’” Allstate Indem. Co., 622 S.W.3d at 883 (quoting In re Prudential Ins. of Am.,
148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding)); In re Ford Motor Co., 165 S.W.3d
315, 317 (Tex. 2005) (orig. proceeding) (quoting Prudential, 148 S.W.3d at 136); see also
In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding)
(“Whether a clear abuse of discretion can be adequately remedied by appeal depends
on a careful analysis of costs and benefits of interlocutory review.”).
B. Analysis
1. Nature of Trial Court’s Order
We must begin our analysis by elucidating exactly what the trial court did in the
order we are reviewing. At the prima facie hearing, the trial court stated that “a Bill of
7 Review is appropriate to allow the parties to revisit the issues so that the proper
division of the assets can be dealt with.” And during the hearing on Wife’s
reconsideration motion, the trial court repeatedly said that it had “granted” the bill of
review. But the trial court never signed an order granting a bill of review, despite
multiple motions from Husband asking it to do so. 7 In the reconsideration hearing,
Wife’s attorney tried to correct the trial court’s misperception:
I’m trying to reduce areas that would go up to the Court [of Appeals] for [it] to decide, but please don’t say you granted a Bill of Review because you didn’t. You said the underlying decree -- you’re basically declaring the underlying decree void for lack of jurisdiction, which is materially different. And you’re saying I’m granting a Bill of Review because I don’t think there’s enough evidence of fraud, extrinsic fraud, not even fraud. [Husband’s] allegations don’t even meet the extrinsic fraud test. Number two, he’s got his own negligence. Number three, he didn’t exhaust his legal remedies.[8]
The trial court then said to Wife’s attorney, “Actually, . . . I agree with you. And the
[trial c]ourt did set aside the decree based on the -- the jurisdictional issue. The result
is the parties are still married, the property has not been divided, and any issue can be
7 The record before us does not contain a signed order granting Husband’s Petition for Bill of Review. In a Motion to Appear by Zoom, filed April 30, 2024, Husband claimed that his Petition for Bill of Review “was granted.” As we will explain, however, the trial court never formally granted Husband’s requested Bill of Review but actually ended up dismissing the bill and reinstating the divorce proceeding by vacating the Agreed Final Decree in its entirety. 8 Wife articulated this point more succinctly in a pleading she filed the same day as the May 31, 2024 hearing: “The [trial court] did not address, let alone find, the three elements necessary to grant a bill of review . . . . The substance of the [trial c]ourt’s ruling was that the [trial c]ourt did not have jurisdiction over the real property in Canada.”
8 relitigated as it is back to an active case.” Husband’s attorney then tried to argue
Husband’s position further before the trial court interjected and said that “the result is
that you get what you want, [Wife’s attorney] gets what he wants as far as language[,]
and we live to resolve the issue on another day.” Thereafter, the trial court signed the
order declaring the Agreed Final Decree void for lack of jurisdiction and dismissing
the bill of review.
It is clear from this record that the trial court intended to grant Husband the
relief he sought—setting aside the Agreed Final Decree—even though it did not grant
his Bill of Review. Importantly, Wife has not challenged the trial court’s dismissal of
Husband’s bill of review petition, and neither Husband nor Wife has appealed the trial
court’s order. Because the merits of the bill-of-review petition are not before us, the
issues we must decide are (1) whether the trial court clearly abused its discretion by
declaring the Agreed Final Decree of Divorce void in its entirety and (2) if so, then
whether Wife has no adequate remedy by appeal. See Allstate, 622 S.W.3d at 875.
2. Law on Jurisdiction
“Jurisdiction” refers to a court’s authority to adjudicate a case. Reiss v. Reiss, 118
S.W.3d 439, 443 (Tex. 2003). Whether a court has jurisdiction is a question of law,
which we review de novo. Bonsmara Nat. Beef Co., LLC v. Hart of Tex. Cattle Feeders,
LLC, 603 S.W.3d 385, 390 (Tex. 2020). “In general, as long as the court entering a
judgment has jurisdiction of the parties and the subject matter and does not act
outside its capacity as a court, the judgment is not void.” Reiss, 118 S.W.3d at 443.
9 Errors other than lack of jurisdiction merely render the judgment voidable so that it
may be “corrected through the ordinary appellate process or other proper
proceedings.” Id. (quoting Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990) (orig.
proceeding)).
“A claim that a judgment is void because the trial court lacks jurisdictional
power to render it constitutes a collateral attack on the underlying judgment.” Ferrice v.
Legacy Ins. Agency, Inc., No. 2-05-363-CV, 2006 WL 1714535, at *2 (Tex. App.—Fort
Worth June 22, 2006, pet. denied) (mem. op.). A void judgment, unlike a voidable
judgment, “can be collaterally attacked at any time.” PNS Stores, Inc. v. Rivera, 379
S.W.3d 267, 272 (Tex. 2012). As with other final, unappealed judgments that are
regular on their face, divorce decrees and judgments are not ordinarily vulnerable to
collateral attack. Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009). Collateral attacks on
final judgments are generally impermissible because “it is the policy of the law to give
finality to the judgments of the courts.” In re D.S., 602 S.W.3d 504, 512 (Tex. 2020)
(quoting Browning v. Prostok, 165 S.W.3d 336, 345 (Tex. 2005)). Such attacks are
disfavored because they “run[] counter to [our] strong policy of finality” by
“attempt[ing] to bypass the appellate process in challenging the integrity of a
judgment.” Id. (quoting Browning, 165 S.W.3d at 346). Accordingly, and although
courts are empowered to note potential jurisdictional defects sua sponte, Rattray v. City
of Brownsville, 662 S.W.3d 860, 869 (Tex. 2023), when a party challenges a judgment as
void, “the first inquiry should necessarily be whether the alleged defect renders the
10 judgment void or merely voidable.” PNS, 379 S.W.3d at 272 n.8.
In this case, the trial court ruled that, at the time of the divorce, it lacked
jurisdiction over the couple’s Canadian properties, and therefore, the entire Decree
was void, including its divorce and child custody provisions. But even if the trial court
was correct that it did not have in rem jurisdiction to adjudicate title to the Canadian
properties, the Decree is not void; a court has jurisdiction to characterize property as
part of its “just and right” division of the estate, see Tex. Fam. Code Ann. § 7.001,
“even if it does so incorrectly,” Reiss, 118 S.W.3d at 443 (citing Hesser v. Hesser, 842
S.W.2d 759, 764 (Tex. App.—Houston [1st Dist.] 1992, writ denied)). Further, “it is
well settled in this state that a judgment may be void in part and valid in part provided
the valid portion is not so dependent on the invalid as to fall with it.” Kubena v. Hatch,
193 S.W.2d 175, 177 (Tex. 1946); see also Tex. Fam. Code Ann. § 6.308(a) (“A court in
which a suit for dissolution of a marriage is filed may exercise its jurisdiction over
those portions of the suit for which it has authority.”); Dawson-Austin v. Austin, 968
S.W.2d 319, 324–25 (Tex. 1998) (explaining that a court can have jurisdiction over
separate aspects of divorce proceedings); Blaylock v. Riser, 354 S.W.2d 134, 137 (Tex.
1962) (“A judgment may be void as to a severable portion over which the court has
no jurisdiction and valid as to the portion remaining over which it does have
jurisdiction.”); Cage v. Cage, 209 S.W.2d 626, 628 (Tex. App.––San Antonio 1948, writ
ref’d n.r.e.) (rejecting argument that void paragraph in divorce decree rendered entire
11 decree void). Hence, the trial court’s setting aside the entire Agreed Final Decree as
void was a clear error of law.
If the property division—or even a portion of it—in the decree was invalid,
then it was severable from the remainder of the decree. Courts—including this
court—have reversed void portions of judgments, including void property divisions in
divorce decrees, while leaving the remaining portions of the judgments intact. See
Gibson v. Gibson, 190 S.W.3d 821, 823 (Tex. App.—Fort Worth 2006, no pet.) (op. on
reh’g); see also Reagan Nat’l Advert. of Austin, LLC v. Leary, No. 03-23-00324-CV, 2024
WL 4867282, at *1 n.1, *4 (Tex. App.—Austin Nov. 22, 2024, no pet. h.) (mem. op.)
(reversing a partition judgment to the extent it made findings and granted relief
against a party over whom the trial court lacked personal jurisdiction and leaving
“undisturbed” the findings and orders in the partition judgment that did not affect the
unserved party); Ex parte Perry, No. 04-14-00567-CV, 2014 WL 4347740, at *5 (Tex.
App.—San Antonio Sept. 3, 2014, no pet.) (mem. op.) (orig. proceeding) (striking
void provision from commitment order while concluding that order was “otherwise
valid in every respect”).
Neither party disputes that the trial court had subject-matter jurisdiction over
the divorce and custody aspects of this case when it rendered the Agreed Final
Decree, and although Husband now contends that the trial court lacked personal
12 jurisdiction over him,9 the Agreed Final Decree that he signed recited that he “made a
general appearance and ha[d] agreed to the terms of th[e] judgment to the extent
permitted by law.” See Tex. R. Civ. P. 120a(1) (“Every appearance, prior to judgment,
not in compliance with this rule is a general appearance.”); Arnold v. Price, 365 S.W.3d
455, 458 (Tex. App.—Fort Worth 2011, no pet.) (“[A] nonresident defendant will be
subject to personal jurisdiction in Texas courts if the defendant enters a general
appearance.”). The trial court, after receiving evidence, found that it had “jurisdiction
of this case and of all the parties.” Indeed, by vacating the Decree in its entirety and
reinstating the original adversarial proceeding, the trial court implicitly found that it
maintained both subject-matter jurisdiction over the divorce and custody issues and
personal jurisdiction over the parties.
Husband testified at the prima facie hearing on his bill of review that he was
served with process in Texas in November 2022, although he denied reading either
Wife’s divorce petition or the citation with which he was served. Personal jurisdiction
can be conferred by consent or waiver. See In re Pixler, 584 S.W.3d 79, 84 (Tex.
App.—Fort Worth 2018, orig. proceeding). A party waives a challenge to personal
jurisdiction “when it (1) invokes the judgment of the court on any question other than
the court’s jurisdiction, (2) recognizes by its acts that an action is properly pending, or
9 Both Wife in her petition and Husband in his response have extensively briefed the issue of whether the trial court had personal jurisdiction over Husband in the original divorce action, even though Husband did not seek to set aside the Agreed Final Decree on this basis in his Petition for Bill of Review.
13 (3) seeks affirmative action from the court.” Goldstein v. Sabatino, 690 S.W.3d 287, 295
(Tex. 2024) (quoting Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004)). Here,
Husband did all three of these things with respect to the Agreed Final Decree when
he filed his Petition for Bill of Review in the trial court, directly attacking the Decree
but not asserting any jurisdictional defects. In that petition, Husband requested relief
inconsistent with his present contention that the trial court lacked personal
jurisdiction over him. He has therefore waived any challenge to the trial court’s
exercise of personal jurisdiction.
The trial court had subject-matter jurisdiction to render the Agreed Final
Decree, and the record does not affirmatively show a lack of personal jurisdiction. We
hold that the trial court clearly abused its discretion by declaring the entirety of the
Agreed Final Decree void for lack of jurisdiction. See PNS, 379 S.W.3d at 275 (holding
that defendant against whom default judgment was taken could not collaterally attack
judgment where trial court had jurisdiction over subject matter of plaintiff’s claims
and “technical defects in service at best render[ed] default judgment voidable, not
void”); In re A.B., 207 S.W.3d 434, 439–40 (Tex. App.—Dallas 2006, no pet.)
(reversing trial court’s sua sponte order dismissing child-support enforcement suit
after determining it did not have personal jurisdiction over father in original divorce).
3. Inadequate Remedy by Appeal
An appellate remedy is adequate when any benefits to mandamus review are
outweighed by the detriments. Prudential, 148 S.W.3d at 136. But even when the
14 benefits of mandamus review outweigh the detriments, we must consider whether the
appellate remedy is nonetheless adequate. Id. “In cases involving child custody,
‘[j]ustice demands a speedy resolution,’ and we have acknowledged that appeal is
‘frequently inadequate to protect the rights of parents and children.’” In re Dep’t of
Fam. & Protective Servs., 273 S.W.3d 637, 645 (Tex. 2009) (orig. proceeding) (quoting In
re Tex. Dep’t of Fam. & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig.
proceeding) (op. on reh’g)).
Here, the trial court’s action directly threatened disruption of the child-custody
provisions of the original decree and significantly delayed action on Wife’s
modification proceeding, which she was entitled by statute to bring if she met the
statutory requisites. Tex. Fam. Code Ann. §§ 156.001–.002, .101; see also id. § 156.006
(prohibiting courts from rendering any temporary order affecting certain
conservatorship rights under final order “[w]hile a suit for modification is pending”
unless certain conditions are met). By declaring the whole Agreed Final Decree void,
the trial court undid Husband and Wife’s entire divorce, including the property
division and provisions for conservatorship and possession of—and support for—the
couple’s children. The parties have been living their lives and operating under the
Agreed Final Decree for nearly two years now, and we have no idea the extent to
which the lives of their minor child10 would be upended if Husband and Wife had to
suddenly resume their marriage, with all the accompanying legal implications and
10 According to the record, one of the couple’s two children is now an adult.
15 ramifications, until such time as the trial court enters a new final divorce decree.
After balancing the benefits and the detriments, we conclude that Wife does
not have an adequate remedy by appeal. See In re Team Rocket, L.P., 256 S.W.3d 257,
262 (Tex. 2008) (orig. proceeding); see also Prudential, 148 S.W.3d at 136. We sustain
her issue.
III. CONCLUSION
We conditionally grant Wife’s petition in part and direct the trial court to vacate
only that portion of its Order Declaring Agreed Final Decree of Divorce Void that
sets aside the Agreed Final Decree.11 Because we are confident that the trial court will
comply with this directive, the writ will issue only if the trial court fails to do so. Upon
11 No error has been raised or shown regarding the portion of the trial court’s order dismissing Husband’s Bill of Review, so the trial court need not vacate that portion. After the trial court vacates the erroneous portion of its order, it can clarify the property division in the Agreed Final Decree. See Tex. Fam. Code Ann. § 9.008(b); Johnson v. Ventling, 132 S.W.3d 173, 178 (Tex. App.—Corpus Christi–Edinburg 2004, no pet.) (“After expiration of its plenary jurisdiction, a trial court retains its inherent power to clarify or enforce a divorce decree.”). Because the trial court had jurisdiction of all the parties to this case, the issue of whether the trial court had the authority to include the Canadian properties in its property division turns on whether the trial court intended to adjudicate title to the properties or merely order a conveyance of one spouse’s interest in the properties. See Holt v. Guerguin, 163 S.W. 10, 12 (Tex. 1914) (opining that, “so far as the decree in this case sets aside and annuls the deed to the land in the Republic of Mexico, it is void, because the district court had not jurisdiction of the subject-matter; the court of Texas could not acquire jurisdiction of land beyond its borders”); Brook v. Moreland, 32 Tex. 380, 383–84 (1869) (“The proper forum to adjudicate upon the validity of the title to the land situate in [another] state . . . would be the courts of that state, where the grantor resides.”); Dankowski v. Dankowski, 922 S.W.2d 298, 303 (Tex. App.—Fort Worth 1996, writ denied) (“There is ample authority for the proposition that a trial court may require parties over whom it has in personam jurisdiction to execute a conveyance of real estate located in another state.”).
16 the trial court’s vacatur in compliance with this court’s opinion and judgment, our
November 8, 2024 stay of the trial court’s order will be automatically dissolved as
moot without further order of our court.
/s/ Wade Birdwell
Wade Birdwell Justice
Delivered: January 22, 2025