Joiner v. Vasquez

632 S.W.2d 755, 1981 Tex. App. LEXIS 4718

• Court: Court of Appeals of Texas
• Decided: December 11, 1981
• Docket: 20558
• Status: Published

Opinions

GUITTARD, Chief Justice.

William Henry Joiner, Jr. appeals from a denial of his bill of review attacking a decree terminating his parental rights in two children. We affirm because Joiner’s present bill of review is barred by a judgment rendered against Joiner in an earlier bill of review alleging similar grounds.

The record reflects that Joiner was married to Karen in 1967 and thereafter two children were born to them while they were residents of the State of Oklahoma. The parties were divorced in 1971 in Oklahoma proceedings, and the children were placed under the control of Karen while Joiner was required to provide for their support. Karen and the children remained in Oklahoma until 1974, when they moved to Texas. In 1976 Karen instituted a proceeding in the juvenile court of Dallas County to terminate Joiner’s parental rights. A guardian ad litem was appointed to represent the children’s interests. Personal service of process was first attempted upon Joiner and, thereafter, service was undertaken by publication and an attorney ad litem was appointed to represent Joiner. On June 3, 1976, following a trial before the court, the juvenile court rendered final decree terminating Joiner’s parental rights.

On the following February 24,1977, Joiner filed his first bill of review attacking the termination decree on the grounds that he had a meritorious defense to the grounds alleged in the termination petition, that the record contained no evidence that termination of his parental rights would be in the best interest of the children, that he was not served by personal service and had no knowledge of the suit or the trial, that the appointed attorney ad litem did not contact him, that he was prevented from presenting his meritorious defense without negligence on his part, that the evidence at the trial did not support termination of his parental rights, and that in these respects he was denied his constitutional rights.

The court heard evidence on this first bill of review and denied the relief sought by an order signed September 22,1977. Joiner did not appeal. Instead, he filed a second bill of review on the same grounds, which the court dismissed on a plea of res judica-ta. Again, he did not appeal. His present and third bill of review was filed January 3, 1980. In this bill of review he alleges the same grounds as in his first bill of review and other grounds as well. He alleges that citation by publication in the termination suit was improper because the officer’s return did not show diligence in attempting personal service, that the appointed attorney ad litem did not provide effective representation, and that the evidence before the court in the earlier suit was insufficient to support termination. He also alleges that section 11.09 of the Texas Family Code, which authorizes citation by publication to persons who cannot be notified by personal service or registered or certified mail, is unconstitutional because it requires publication only one time. He alleges that the first bill of review was brought within two years, the time permitted by rule 329 of the Texas Rules of Civil Procedure for a motion for new trial after a judgment is rendered on citation served by publication. He further alleges that the judgment of September 22,1977, denying his first bill of review, does not bar his present bill of review “because the defense of res judicata is not applicable to jurisdictional questions.”

In response to the third bill of review, Karen filed a plea of res judicata based on the judgment denying the first bill of review. At a pretrial hearing the plea of res judicata was sustained and judgment was rendered that the bill of review “be and the same is denied as a matter of law.” The judgment recites that a guardian ad litem appointed by the court appeared and represented the children, but no pleading by him is shown.

Joiner first argues that the trial court was in error in sustaining the plea of res judicata because the facts he pleaded showed that the termination decree was void, and, therefore, the judgment denying the first bill of review could not give the void termination decree any validity or bar his current attack. To support this argument, Joiner relies on judicial expressions, such as those in Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961), and Dews v. Floyd, 413 S.W.2d 800, 804-05 (Tex.Civ.App.—Tyler 1967, no writ), to the effect that a void judgment is a nullity and may be disregarded anywhere at any time. From this premise. Joiner reasons that a judgment denying a bill of review does not bar a subsequent bill of review if the original judgment is void. Consequently, he insists, no matter how many bills of review may be attempted unsuccessfully, none can result in final disposition of the controversy until the voidness of the original judgment is correctly declared or the rights of third parties have intervened.

This argument is untenable for two reasons. First, the termination decree is not “void” in the sense that that term is used in the cases cited. It is a judgment which the juvenile court had jurisdictional power to render in the sense of jurisdiction over the subject matter. It is alleged to be “void” only because of lack of proper service of process, that is to say, lack of jurisdiction of the person. Since it reveals no lack of jurisdiction on its face and recites proper service, it is not subject to collateral attack. Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932, 934-35 (1935); Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 328 (1895); Imatani v. Marmolejo, 606 S.W.2d 710, 713 (Tex.Civ.App.—Corpus Christi 1980, no writ). Such a judgment is subject to attack only by a bill of review in which evidence of lack of service is adduced and a meritorious defense is shown. Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961). For example, a divorce decree may be attacked in a bill of review on the ground that the record affirmatively shows that a waiver of process is invalid, but it is not subject to collateral attack on that ground, since the court had jurisdictional power to determine validity of the waiver and to render the decree. Thus, we cannot agree that a termination decree rendered on defective service by publication is “void” in the sense that it may be disregarded anywhere and at any time. Deen v. Kirk, supra.

Second, the plea of res judicata was properly sustained because the judgment denying the first bill of review is conclusive on the issue of the court’s jurisdiction in the termination suit. The first bill of review was a direct attack, and might properly have been considered as a motion for new trial within rule 329, to which the strict requirements of a bill of review did not apply, because citation was served by publication and the bill of review was filed within two years. Nevertheless, a direct attack was made, the jurisdiction of the juvenile court in the termination proceeding was put in issue, relief was denied, and Joiner did not appeal. That judgment bars the present bill of review under the well-settled rule that a party is bound by an adjudication of the court’s jurisdiction in a contested proceeding. Restatement of Judgments § 9 (1942).

Under this rule, a Texas court is bound by its own earlier judgment determining an issue of jurisdiction. Farmer v. Saunders, 60 Tex.Civ.App. 197, 128 S.W. 941, 942 (1910, no writ). The rule is based on the principle that there must be an end to litigation, and when a party has had his day in court with an opportunity to present his evidence and his view of the law, there is no reason to believe that the second decision will be more satisfactory than the first. Stoll v. Gottlieb, 305 U.S. 165, 171-72, 59 S.Ct. 134, 137, 83 L.Ed. 104 (1938). Moreover, judicial power includes the power to make erroneous as well as correct decisions; otherwise a judgment would always be subject to attack on its merits, and litigation would never end.

Under these well-established rules, even though the original termination decree may be void—or, more properly, voidable—in the sense that it was rendered without valid service of process, the judgment in the first bill of review is valid and stands as a bar to the present bill of review. No attack on the bill-of-review judgment is made here for lack of jurisdiction over either parties or subject matter in that proceeding. Obviously, if the court had granted relief setting aside the termination decree and restoring Joiner’s parental rights, and no appeal had been taken, all parties would have been bound. If the contrary determination was erroneous for any of the reasons now alleged, Joiner’s remedy was to appeal. His right to attack the termination decree died with his failure to appeal from the denial of his first bill of review. See Layton v. Layton, 538 S.W.2d 642, 648 (Tex.Civ.App.—San Antonio 1976, writ ref’d n. r. e.).

Joiner insists that he should not be bound by the judgment denying his first bill of review because he has raised additional issues that were not raised in that proceeding. In particular, he asserts that the best interest of the children is the paramount consideration and their interest has never been determined. Although this argument has a strong appeal, it cannot prevail against the established rules governing the finality of judgments announced by the authorities above cited. Assertion of additional grounds which, by the use of diligence, might have been tried in an earlier proceeding does not avoid the bar of res judicata. Rizk v. Mayad, 603 S.W.2d 773, 775-76 (Tex.1980); Ogletree v. Crates, 363 S.W.2d 431, 435 (Tex.1963). Otherwise a resourceful lawyer could always allege an additional ground and litigation would never end. Since in the first bill of review (or motion for new trial under rule 329) Joiner presented or had the opportunity to present all the facts challenging the jurisdiction of the court rendering the termination decree, as well as facts showing his meritorious defenses, and the court rendered an adverse judgment from which he took no appeal, the trial court properly sustained the plea of res judicata.

Neither can we accept Joiner’s premise that established rules governing finality of judgments do not apply when the interests of minor children are at issue. He argues that so long as no rights of third parties have intervened, as in the case of an adoption, the merits of the termination decree should be subject to review. We cannot agree that the principle of finality of judgments does not apply to children. Rather, it applies to them with a special force, as the supreme court has recognized. Knowles v. Grimes, 437 S.W.2d 816, 817 (Tex.1969); Ogletree v. Crates, 363 S.W.2d 431, 436 (Tex.1963). The reason is stated in Ogletree, which involved an allegation that an earlier custody decree was procured by fraud. The supreme court said:

There may be a technical distinction between a suit to obtain custody and possession of a minor child through modification of a final judgment and a suit to obtain custody and possession of the child by setting aside a final judgment, but the broad cause of action and the relief sought in both suits are the same. The suit in each instance tests the rights of the parties to custody of the child and the only pertinent inquiry is the best interests of the child. As a matter of public policy there should be a high degree of stability in the home and surroundings of a young child, and, in the absence of materially changed conditions, the disturbing influence of constant re-litigation should be discouraged. Once a final judgment of custody is rendered, a subsequent suit to modify or to avoid the judgment should be res judicata of all causes of action which, with diligence, could have been asserted in the suit as a basis for obtaining custody and possession of the child.

Joiner also argues that the trial court erred in sustaining the plea of res judicata and dismissing his bill of review at a pretrial hearing, rather than on a motion for summary judgment or trial on the merits. He relies on a line of cases which hold that since res judicata is a merit defense which must be supported by competent evidence, rather than a dilatory plea which may be considered at pretrial under rule 166 of the Texas Rules of Civil Procedure, final disposition upon a plea of res judicata may be had only on motion for summary judgment or trial on the merits. See Kelley v. Bluff Creek Oil Co., 158 Tex. 180, 309 S.W.2d 208 (1958); Phipps v. Miller, 597 S.W.2d 458 (Tex.Civ.App.—Dallas 1980, writ ref’d n. r. e.); Piper v. Estate of Thompson, 546 S.W.2d 341 (Tex.Civ.App.—Dallas 1976, no writ); Mason v. Tobin, 408 S.W.2d 243 (Tex.Civ.App.—Houston 1966, no writ). We do not disagree with these authorities, but they have no application here. No further evidence was needed on the plea of res judicata because the record then before the court affirmatively showed that Joiner could not have prevailed on the merits. The conclusive bar of the judgment in the first bill of review is shown by Joiner’s own pleading in the third bill of review, which affirmatively alleges the prior proceeding. Also, the court was required to take judicial notice of its own earlier records, which have been brought forward in our present transcript. Victory v. State, 138 Tex. 285, 158 S.W.2d 760, 763 (1942). Since Joiner’s own pleading and records within the court’s judicial knowledge affirmatively show that the only question presented was a matter of law, in that no facts could have been shown in a trial on the merits that would prevent the application of the bar of res judicata, we hold that at the time of the pretrial hearing the case was ripe for judgment sustaining the plea of res judicata and denying the relief sought by the bill of review. Ellis v. Woods, 453 S.W.2d 509, 510 (Tex.Civ.App.—El Paso 1970, no writ); Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 340 S.W.2d 548, 554-55 (Tex.Civ.App.—El Paso 1960, writ ref’d n. r. e.).

We need not determine whether Joiner’s minor children have a right to attack the termination decree. They were represented by an appointed guardian ad litem in the original termination suit under the authority of section 11.10 Tex.Fam.Code Ann. (Vernon Supp. 1980-81). The guardian ad litem did not appeal that decree. Neither the children nor the appointed guardian were parties to Joiner’s first bill of review. In the present suit the trial court appointed a new guardian ad litem. The new guardian sought no affirmative relief on behalf of the children in the trial court and did not perfect an appeal from the trial court’s dismissal of Joiner’s bill of review. Before this court, the guardian ad litem has filed a brief advancing the same arguments as those presented by Joiner and urging that Joiner be given relief by this appeal, but the guardian makes no separate claim for relief on behalf of the children. Since the children did not seek a bill of review of the termination decree by any pleading or evidence offered to the trial court in their own behalf, we limit our consideration to the rights asserted by Joiner. Consequently, this opinion should not be interpreted as holding that any relief sought on behalf of the children would be likewise barred. Neither should it be taken as implying that after a parent has failed in an attack on a termination decree, the children may maintain a separate suit attacking that decree.

Affirmed.