the Office of the Attorney General of Texas v. Joe v. Phillips

Opinion

Opinion issued May 31, 2007

In The

Court of Appeals

For The

First District of Texas

NO. 01-05-00973-CV

THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Appellant

V.

JOE V. PHILLIPS, Appellee

On Appeal from the 311th District Court

Harris County, Texas

Trial Court Cause No. 1986-19170

MEMORANDUM OPINION

This appeal arises out of a dispute over Joe V. Phillips's ("Phillips's") obligation to pay child support in the state of Texas. Pursuant to a motion filed by Phillips, the trial court declared void both a default divorce decree, ordering Phillips to pay child support, and an order denying a stay of income withholding. The trial court then found that Phillips owed $0 in child support arrearages and ordered the Office of the Attorney General of Texas ("the Attorney General") to return the money levied from Phillips's bank account. In three issues, the Attorney General contends that the trial court erred in (1) granting Phillips's motion to declare judgments void, (2) confirming Phillips's child support arrearages at $0, and (3) ordering the Attorney General to return money levied from Phillips's bank account. We reverse and remand.

Background

In 1970, Joe and Mary Ann Phillips ("Mary Ann") were married in Houston, Texas. The couple later relocated to California, where a child, Aundre, was born to their marriage. Mary Ann returned to Texas, along with Aundre, when the couple stopped living together as husband and wife in 1977. A second child, Jamail, was allegedly born to Phillips and Mary Ann five years later. Phillips remained in California.

In 1982, a California court entered an order adjudging Phillips to be the father of Aundre and requiring him to pay $125 per month in child support. Jamail was expressly excluded from the order because Phillips disputed his paternity. Pursuant to the California order, Phillips paid child support until Aundre moved in with him eight years after the order was issued.

Mary Ann filed for divorce in Harris County, Texas in 1986. In her petition, Mary Ann alleged that her marriage to Phillips had become insupportable. She also alleged that both Aundre and Jamail were children of the marriage. Furthermore, while the petition acknowledged that Phillips was a resident of California, no facts supporting the Harris County court's exercise of personal jurisdiction over Phillips were alleged. When Phillips failed to appear for the hearing on the petition, the trial court entered a default divorce decree ("the 1986 decree"). The 1986 decree recited that "the Court having considered the pleadings, the evidence, the testimony and argument of counsel and being fully advised herein finds that it has jurisdiction over the parties and of the subject matter of this suit and finds that a divorce should be granted to [Mary Ann] . . . ." The 1986 decree adjudged Phillips to be the father of both children and ordered him to pay $500 per month in child support.

Phillips testified that he never received notice of either the divorce action or the 1986 decree. The return of citation states that Phillips was personally served in California. According to Phillips, however, it was not until the Attorney General requested that a writ of income withholding be sent to his California employer in 1991, that he became aware of the 1986 decree's child support order. Using a form motion sent along with the writ of income withholding, Phillips moved to stay delivery of the writ on grounds that the amount of arrearages alleged was incorrect and that he was not behind in paying child support because he had complied with the earlier California order, requiring him to pay $125 per month for Aundre. In November of 1991, when he appeared for a hearing on his motion to stay deliver of the writ, Phillips alleged that he was advised that the hearing would be reset. He testified that he was never notified of a later hearing date. The trial court issued a default order in July of 1992 denying his motion to stay ("the 1992 order") and finding a child support arrearage in the amount of $24,671.50. The 1992 order also required that an additional $240 per month be withheld from Phillips's paycheck in order to satisfy the arrearage.

Thirteen years later, the Attorney General sent a notice of levy to Phillips's bank. Funds in the amount of $12,555.38 were levied from his account. In response to the levy, Phillips filed a motion to confirm the amount of his child support arrearage. The Attorney General filed an answer and countermotion to confirm the arrearage.

Before the trial court ruled on these motions, however, Phillips filed an additional motion to declare judgments void, arguing that both the 1986 decree and the 1992 order were void. In his motion, Phillips asserted that the 1986 decree was void because it failed to allege jurisdictional facts and because he had never been served with the petition or received notice of the 1986 decree. He asserted that the 1992 order was void because he had never received notice of either the hearing on the motion or the 1992 order itself. After a hearing on the motion to declare judgments void, the trial court ruled in Phillips's favor and declared both the 1986 decree and the 1992 order void. In addition, the trial court found that Phillips owed $0 in child support arrearages and ordered the Attorney General to return the funds levied from Phillips's bank account.

At the request of the Attorney General, the trial court issued findings of fact and conclusions of law. In a single finding of fact, the trial court found that "Joe V. Phillips owes $0 in child support arrears." In addition, the trial court issued the following conclusions of law:

1. Joe V. Phillips's Motion to Declare Judgments Void was pled and tried as a collateral attack on the provisions of the 1986 divorce decree relating to paternity and child support and on the 1993 [sic] Order on Motion to Stay.

2. Joe V. Phillips's claims that he was not served with process in the divorce action, that he did not receive notice of the divorce decree, the hearing on his motion to stay, or of the Order on the Motion to Stay, and that the court had no authority to enter a default judgment against him on his motion to stay cannot be brought in a collateral attack, but could only be brought in a bill of review.

3. If the record shows that the defendant is not a Texas resident and long-arm jurisdiction has not been pled, the subject-matter jurisdiction of a Texas court has not been invoked and the court lacks subject-matter jurisdiction to establish the defendant's paternity of a child or order him to pay child support.

4. The provisions of the 1986 divorce decree relating to paternity and child support are void because Mary Ann Phillips's divorce petition did not plead facts sufficient to establish long-arm jurisdiction over Joe V. Phillips, whom she alleged to reside outside Texas.

5. The 1993 [sic] Order on Motion to Stay is void because it is based on the provisions of the 1986 divorce decree finding paternity and ordering child support, which are void.

6. Because the 1993 [sic] Order on Motion to Stay and the provisions of the divorce decree ordering support are void, Joe V. Phillips owes $0 in child support arrears as a matter of law.

7. Because Joe V. Phillips owes $0 in child support arrears, the Office of the Attorney General was not entitled to levy his Wells Fargo account.

8. Because the Office of the Attorney General was not entitled to levy Joe V. Phillips's Wells Fargo account, Joe V. Phillips is entitled to an order requiring the Office of the Attorney General to return to him the money it had levied.

Motion to Declare Judgments Void

In its first issue, the Attorney General argues that the trial court improperly granted Phillips's motion to declare the 1986 decree and 1992 order void. Specifically, the Attorney General argues that the motion was improperly granted because (1) Phillips could not collaterally attack a lack of notice in his motion to declare the judgments void and, (2) by generally appearing, Phillips consented to the trial court's exercise of personal jurisdiction. We agree.

Notice

In his motion, Phillips argued that both the 1986 decree and the 1992 order were void on the grounds that he never received notice of the divorce action, the 1986 decree, the hearing on his motion to stay, or the 1992 order denying his motion to stay. A judgment that is void may be collaterally attacked. See Solomon, Lambert, Roth & Assocs., Inc. v. Kidd, 904 S.W.2d 896, 900 (Tex. App.--Houston [1st Dist.] 1995, no writ) ("[A] collateral attack does not seek rendition of a new judgment to correct the judgment under attack, but merely seeks to show that the original judgment is void . . . ."). A judgment is void only if the court had no jurisdiction over the parties or property, no jurisdiction over the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court. Id. All errors other than jurisdictional deficiencies render a judgment merely voidable, and such errors must be corrected on direct attack. See id.; see also Plains Growers, Inc. v. Jordan, 519 S.W.2d 633, 637 (Tex. 1974) (lack of notice of hearing or signed judgment do not render judgment void).

Here, Phillips's motion constituted a collateral attack on the 1986 decree and the 1992 order because it did not seek the rendition of a new judgment to correct those under attack, but instead sought to show merely that the original decree and order were void. See Kidd, 904 S.W.2d at 900. Because a lack of notice would not render the 1986 decree or the 1992 order void, Phillips's assertions that he never received notice of the divorce action, the 1986 divorce decree, the hearing on his motion to stay, or the 1992 order denying his motion to stay were not properly made in his motion to declare judgments void. See id.; see also Plains Growers, Inc., 519 S.W.2d at 637. We agree with the trial court's second conclusion of law, in which the trial court properly recognized that Phillips's complaints about lack of notice could not be asserted as a collateral attack in his motion to declare judgments void. For this reason, neither the 1986 decree nor the 1992 order could be declared void for lack of notice.

Personal Jurisdiction

Phillips also challenged the 1986 decree on the grounds that the trial court lacked personal jurisdiction, and, in its conclusions of law, the trial court stated that the 1986 decree was void because the divorce petition did not plead facts sufficient to establish long-arm jurisdiction over Phillips, a non-resident of Texas. ⁽¹⁾ Because the divorce petition requested the appointment of a managing and possessory conservator over the Phillips children, as well as child support, the suit was one affecting the parent-child relationship. See Tex. Fam. Code Ann. § 101.032(a) (Vernon 2002). In a suit affecting the parent-child relationship, a court may exercise personal jurisdiction over a non-resident if "the person submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction . . . ." Tex. Fam. Code Ann. § 102.011(b)(2) (Vernon 2002). A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court's jurisdiction; if a defendant's act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance. Moore v. Elektro-Mobil Technik GmbH, 874 S.W.2d 324, 327 (Tex. App.--El Paso 1994, writ denied).

Here, Phillips filed two motions seeking affirmative action from the trial court before filing his motion to declare the 1986 decree void for want of personal jurisdiction. Specifically, in 1991, Phillips filed a motion to stay delivery of the writ of withholding, and, in 2005, a motion to confirm child support arrearages. In his motion to confirm arrearages, Phillips sought affirmative relief from the trial court in the form of a temporary restraining order, sanctions, and attorneys fees. Because Phillips invoked the judgment of the court on a question other than the court's jurisdiction, he entered a general appearance. See id. By entering a general appearance, Phillips consented to the trial court's exercise of personal jurisdiction. See Tex. Fam. Code Ann. § 102.011(b)(2). Because Phillips consented to the trial court's exercise of personal jurisdiction, we hold that the trial court erred in concluding that the 1986 decree was void because no jurisdictional facts were pled in the divorce petition.

Because the trial court adjudged that Phillips owed $0 in child support arrears and ordered the Attorney General to return funds levied from his account as a result of the finding that the 1986 decree and 1992 order were void, the error in granting Phillips's motion probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). As such, it is reversible error. Id.

Accordingly, we sustain the Attorney General's first issue. Judgment on Arrearage and Levied Money

In its second and third issues, the Attorney General argues that (1) the trial court erred in confirming Phillips's arrears at $0 because that finding was based on an incorrect conclusion of law, namely the conclusion that the 1986 decree and the 1992 order were void, as well as legally and factually insufficient evidence, and (2) the trial court erred in ordering the Attorney General to return levied money based on the same incorrect conclusion of law. We agree.

An erroneous finding of fact or conclusion of law does not mandate that judgment of trial court must be reversed. Lee v. Lee, 981 S.W.2d 903, 906 (Tex. App.--Houston [1st Dist.] 1998, no pet.). If the judgment is otherwise correct upon the merits, it is not to be reversed because the trial court grounded it upon incorrect legal reasons. Id. Here, in its sixth and seventh conclusions of law, the trial court concluded that, "[b]ecause the 1993 [sic] Order on Motion to Stay and the provisions of the divorce decree ordering support are void, Joe V. Phillips owes $0 in child support arrears as a matter of law" and "[b]ecause Joe V. Phillips owes $0 in child support arrears, the Office of the Attorney General was not entitled to levy his Wells Fargo account." That is, the trial court premised its judgment confirming arrears and ordering the return of levied funds on its conclusion that the 1986 decree and the 1992 order were void, a conclusion we held to be erroneous. The record does not demonstrate any other basis which would render the trial court's judgment confirming arrears at $0 and ordering the return of levied funds correct. As a result, we hold that the trial court erred in adjudging Phillips's child support arrears at $0 and in ordering the Attorney General to return the levied funds.

Accordingly, we sustain the Attorney General's second and third issues.

Conclusion

Because we have concluded that neither the 1986 decree nor the 1992 order is void, we reverse the judgment confirming arrears at $0 and ordering the Attorney General to return funds levied from Phillips's bank account. We remand Phillips's motion to confirm child support arrearages to the trial court for further consideration.

George C. Hanks, Jr.

Justice

Panel consists of Justices Nuchia, Hanks, and Bland.

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