Mark Edward Athans v. Charity Athans

• Court: Court of Appeals of Texas
• Decided: January 13, 2022
• Docket: 09-20-00047-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00047-CV __________________

MARK EDWARD ATHANS, Appellant

V.

CHARITY ATHANS, Appellee

__________________________________________________________________

On Appeal from the 284th District Court Montgomery County, Texas Trial Cause No. 19-09-13162-CV __________________________________________________________________

MEMORANDUM OPINION

Appellant Mark Edward Athans (“Mark”) argues that the trial court erred by

sua sponte dismissing his lawsuit to have a marriage declared void because of

bigamy for want of jurisdiction. We affirm the trial court’s judgment.

BACKGROUND

In March 2019, the County Court at Law Number 3 (hereafter referred to as

the “original trial court”) of Montgomery County, Texas, granted Mark’s petition

for divorce against Charity Athans (“Charity”), and in the Final Decree of Divorce,

1 the original trial court denied Mark’s request for an annulment of fraud and awarded

Charity certain property and monies. 1 In April 2019, a Montgomery County grand

jury indicted Charity for bigamy, and the indictment alleged that Charity was still

legally married to another man when she married Mark in August 2017. In June

2019, the original trial court entered an Order on Motion for Temporary Orders

Pending Appeal, ordering Mark to pay Charity’s attorney’s fees as well as spousal

support. In July 2019, Charity filed a First Amended Petition for Enforcement of

Property Division and Enforcement of Temporary Orders Pending Appeal.

In September 2019, Mark filed an Original Petition and Application for

Temporary Restraining Order and Temporary Injunction against Charity, alleging

that the current trial court had jurisdiction under section 6.307 of the Texas Family

Code to declare his marriage with Charity void because (1) the purported marriage

was contracted in Texas, and (2) both he and Charity are domiciled in Texas. See

Tex. Fam. Code Ann. § 6.307. According to Mark’s petition, when he and Charity

1We note that this Court has dealt with the Athans’s divorce on two prior occasions, and neither case is relevant to the outcome in this appeal. In July 2019, this Court granted Mark Athans’s motion to dismiss his appeal from the County Court at Law No. 3. See Athans v. Athans, No. 09-19-00152-CV, 2019 WL 3330591, at *1 (Tex. App.—Beaumont July 25, 2019, no pet.). In April 2020, this Court conditionally granted Mark’s petition seeking mandamus relief, in which Mark requested that the trial court vacate its order granting Charity Athans’s motion to enforce the property division provisions and holding Mark in contempt. See In re Athans, No. 09-20-00074-CV, 2020 WL 1770903, at *1, *3 (Tex. App.—Beaumont Apr. 9, 2020, orig. proceeding). 2 purportedly married on August 7, 2017, Charity was still legally married to at least

two other men, resulting in their marriage being void under section 6.202 of the

Texas Family Code. See id. § 6.202. Mark alleged that he did not know Charity was

married to the other men when he filed for divorce in 2018 or when the original trial

court entered a Final Decree of Divorce in 2019. Mark also alleged that the Final

Decree of Divorce and the June 2019 Reformed Order on Motion for Temporary

Orders Pending Appeal are void and must be set aside because his purported

marriage to Charity is void under section 6.202 of the Family Code and has no legal

effect in Texas. See id. According to Mark, since his marriage is void, the original

trial court did not have jurisdiction to grant him a divorce or divide the community

estate.

On January 14, 2020, Charity pleaded guilty to bigamy and was placed on

deferred adjudication community supervision for a period of four years and assessed

a $500 fine. On January 29, 2020, the current trial court entered an Amended Show

Cause Order on the Court’s Motion to Dismiss for Want of Prosecution, ordering the

parties to appear and show cause why Mark’s Original Petition and Application for

Temporary Restraining Order and Temporary Injunction should not be dismissed for

want of jurisdiction. On February 3, 2020, Charity filed an Original Answer, entering

a general denial and raising the affirmative defense of res judicata. On February 6,

2020, Mark filed a Response to the Amended Motion to Show Cause, arguing his

3 lawsuit is a collateral attack on a void divorce decree because of bigamy and that the

original trial court lacked subject-matter jurisdiction to grant the divorce. Attached

to Mark’s response is a December 2019 Order for Decree of Nullity entered by the

Fourth Judicial Circuit Court of South Dakota, ordering that: (1) Mark had no

knowledge of Charity’s prior marriages when he married Charity in Lawrence

County, South Dakota on August 7, 2017; and (2) the marriage between Mark and

Charity is null and void from the beginning. Mark argued that the current trial court

has jurisdiction to declare the Final Decree of Divorce void and requested the trial

court to vacate, set aside, and otherwise not enforce the Final Decree of Divorce or

any enforcement orders.

On February 7, 2020, the current trial court signed an Order Dismissing Case

for Want of Jurisdiction and found that it is undisputable the original trial court had

jurisdiction over Mark’s Petition for Divorce and to sign the Final Decree of Divorce

and that the voidness of the marriage does not translate into the voidness of any

judgment. The current trial court noted that the proper remedy in cases where a final

judgment results when certain facts are fraudulently withheld is to file a bill of

review, and the record shows that Mark’s counsel was hired to file a bill of review

but chose to file this lawsuit instead. The current trial court dismissed Mark’s lawsuit

for want of jurisdiction, finding that it is apparent that there may be a remedy for

4 Mark, just not one via this lawsuit alleging that the original trial court lacked

jurisdiction.

ANALYSIS

On appeal, Mark contends that the trial court erred by sua sponte dismissing

his lawsuit for want of jurisdiction. In three sub-issues, Mark questions whether (1)

the original trial court had subject-matter jurisdiction to render the Final Decree of

Divorce, (2) he was required to file a bill of review to attack the Final Decree of

Divorce, and (3) section 6.307 of the Family Code invoked the current trial court’s

The question of whether a court has subject-matter jurisdiction is a question

of law, and a trial court’s order dismissing a cause for want of jurisdiction is

reviewed de novo. See Graber v. Fuqua, 279 S.W.3d 608, 631 (Tex. 2009)

(Wainwright, J., dissenting); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d

217, 226 (Tex. 2004). A plaintiff’s petition must state facts which affirmatively show

the jurisdiction of the court in which the action is brought. Richardson v. First Nat’l

Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967); see also Tex. Ass’n of Bus. v. Tex.

Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When reviewing a trial court’s

order dismissing a case for want of jurisdiction, we construe the pleadings in favor

of the plaintiff and look at the pleader’s intent. Tex. Ass’n of Bus., 852 S.W.2d at

446 (citations omitted).

5 A judgment may be challenged as void through a direct or collateral attack. In

re Thompson, 569 S.W.3d 169, 172 (Tex. App.—Houston [1st Dist.] 2018, orig.

proceeding). A direct attack may take the form of (1) a pleading filed under the

original cause number while the trial court has plenary power, or (2) after the trial

court loses plenary power, a pleading filed under a new cause number that qualifies

as a bill of review and is filed within four years of the judgment. Id.; see also Tex.

R. Civ. P. 329b (providing the timelines that a trial court has plenary power to vacate,

modify, correct, or reform the judgment within thirty days after the judgment is

signed). Once plenary power has expired, generally, a trial court cannot set aside a

judgment in a direct attack except by a bill of review. See Tex. R. Civ. P. 329b(f);

Cottone v. Cottone, 122 S.W.3d 211, 213 (Tex. App.—Houston [1st Dist.] 2003, no

pet.) (stating that a bill of review in the court rendering the judgment is the exclusive

remedy to attack the judgment). After the time period to bring a direct attack has

expired, the petitioner may only attack the judgment collaterally by initiating a new

case under a different cause number that challenges the effect of the original

judgment. In re Thompson, 569 S.W.3d at 172.

“As with other final, unappealed judgments which are regular on their face,

divorce decrees and judgments are not vulnerable to collateral attack.” Hagen v.

Hagen, 282 S.W.3d 899, 902 (Tex. 2009) (citation omitted). “Although a final

judgment may be erroneous or voidable, it is not void and thus subject to collateral

6 attack if the court had jurisdiction of the parties and subject matter.” Berry v. Berry,

786 S.W.2d 672, 673 (Tex. 1990) (citations omitted). Thus, errors other than lack of

jurisdiction over the parties or the subject matter render the judgment voidable and

may be corrected only through a direct attack. In re Thompson, 569 S.W.3d at 172;

Hagen, 282 S.W.3d at 902.

A bill of review is an equitable proceeding brought by a party seeking to set

aside a prior judgment that is not void on the face of the record and is no longer

subject to challenge by a motion for new trial or appeal. King Ranch, Inc. v.

Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Caldwell v. Barnes, 975 S.W.2d 535,

537 (Tex. 1998). A bill of review is a separate and independent suit, brought in the

same court that entered the judgment being attacked under a different cause number.

In re Thompson, 569 S.W.3d at 173-74. Generally, to set aside a judgment by a bill

of review, a petitioner must plead and prove (1) a meritorious defense to the cause

of action alleged to support the judgment, (2) that he was prevented from making by

the fraud, accident of wrongful act of his opponent, and (3) unmixed with any fault

or negligence on petitioner’s part. Chapman, 118 S.W.3d at 752; Caldwell, 975

S.W.2d at 537.

Where the suit attacking a former judgment is commenced in the wrong court, but there is an order transferring the cause to the proper court and invoking the jurisdiction of the court which entered the improper judgment, jurisdiction is properly in that court and the jurisdiction relates back to the original filing of the suit.

7 Ragsdale v. Ragsdale, 520 S.W.2d 839, 841, 844 (Tex. Civ. App.—Fort Worth 1975,

no writ) (citations omitted) (explaining that the district court entered an order

transferring the case back to the Domestic Relations Court No. 1 on the grounds that

the cause of action constituted a collateral attack on the prior divorce decree).

First, we note that Mark cannot collaterally attack the Final Decree of Divorce

because he has not shown that it is void due to the original trial court not having

jurisdiction over the parties and subject matter or acting outside of its capacity as a

court. See Hagen, 282 S.W.3d at 902; In re Thompson, 569 S.W.3d at 172; Cottone,

122 S.W.3d at 214. Secondly, since Mark failed to show that the Final Decree of

Divorce is void and thus subject to a collateral attack, section 6.307 of the Family

Code, which gives a trial court jurisdiction to declare a marriage void in a collateral

proceeding, does not apply in this case. See Tex. Fam. Code. Ann. § 6.307; Berry,

786 S.W.2d at 673. Moreover, since the original trial court’s plenary power has

expired, a bill of review filed in the original trial court is Mark’s exclusive remedy

for directly attacking the Final Decree of Divorce. See Tex. R. Civ. P. 329b(f);

Hagen, 282 S.W.3d at 902; In re Thompson, 569 S.W.3d at 172; Cottone, 122

S.W.3d at 213.

Even if in the interest of justice, we construed Mark’s pleadings in his Original

Petition and Application for Temporary Restraining Order and Temporary

Injunction to be sufficient to allege a relief under a bill of review, Mark’s lawsuit

8 still does not qualify as a bill of review because it was not filed in the original trial

court rendering the Final Decree of Divorce. See Tex. R. Civ. P. 71; In re Thompson,

569 S.W.3d at 173-74; Cottone, 122 S.W.3d at 213; Ragsdale, 520 S.W.2d at 841,

844. Since the current trial court did not render the Final Decree of Divorce, it did

not have jurisdiction to set aside the Final Decree of Divorce. See Cottone, 122

S.W.3d at 213; see also Ragsdale, 520 S.W.2d at 841, 844. Accordingly, we

conclude that the trial court did not err by sua sponte dismissing Mark’s lawsuit for

want of jurisdiction. We affirm the trial court’s judgment.

AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on August 10, 2021 Opinion Delivered January 13, 2022

Before Golemon, C.J., Horton and Johnson, JJ.