Texas Judiciary Online - HTML Opinion

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Opinion issued May 31,=20 2007

In=20 The

Court of=20 Appeals

For=20 The

First=20 District of Texas

NO. = 01-05-00973-CV

THE = OFFICE OF THE=20 ATTORNEY GENERAL OF TEXAS, Appellant

JOE V. = PHILLIPS,=20 Appellee

On = Appeal from the=20 311th District Court

Harris = County,=20 Texas

Trial = Court Cause=20 No. 1986-19170

MEMORANDUM=20 OPINION

This appeal arises out of a = dispute over=20 Joe V. Phillips's ("Phillips's") obligation to pay child support = in the=20 state of Texas. Pursuant to a motion filed by Phillips, the trial = court=20 declared void both a default divorce decree, ordering Phillips to = pay=20 child support, and an order denying a stay of income withholding. = The=20 trial court then found that Phillips owed $0 in child support = arrearages=20 and ordered the Office of the Attorney General of Texas ("the = Attorney=20 General") to return the money levied from Phillips's bank account. = In=20 three issues, the Attorney General contends that the trial court = erred in=20 (1) granting Phillips's motion to declare judgments void, (2) = confirming=20 Phillips's child support arrearages at $0, and (3) ordering the = Attorney=20 General to return money levied from Phillips's bank account. We = reverse=20 and remand.

Background

In 1970, Joe and Mary Ann = Phillips ("Mary=20 Ann") were married in Houston, Texas. The couple later relocated = to=20 California, where a child, Aundre, was born to their marriage. = Mary Ann=20 returned to Texas, along with Aundre, when the couple stopped = living=20 together as husband and wife in 1977. A second child, Jamail, was=20 allegedly born to Phillips and Mary Ann five years later. Phillips = remained in California.

In 1982, a California court = entered an=20 order adjudging Phillips to be the father of Aundre and requiring = him to=20 pay $125 per month in child support. Jamail was expressly excluded = from=20 the order because Phillips disputed his paternity. Pursuant to the = California order, Phillips paid child support until Aundre moved = in with=20 him eight years after the order was issued.

Mary Ann filed for divorce in = Harris=20 County, Texas in 1986. In her petition, Mary Ann alleged that her = marriage=20 to Phillips had become insupportable. She also alleged that both = Aundre=20 and Jamail were children of the marriage. Furthermore, while the = petition=20 acknowledged that Phillips was a resident of California, no facts=20 supporting the Harris County court's exercise of personal = jurisdiction=20 over Phillips were alleged. When Phillips failed to appear for the = hearing=20 on the petition, the trial court entered a default divorce decree = ("the=20 1986 decree"). The 1986 decree recited that "the Court having = considered=20 the pleadings, the evidence, the testimony and argument of counsel = and=20 being fully advised herein finds that it has jurisdiction over the = parties=20 and of the subject matter of this suit and finds that a divorce = should be=20 granted to [Mary Ann] . . . ." The 1986 decree adjudged Phillips = to be the=20 father of both children and ordered him to pay $500 per month in = child=20 support.

Phillips testified that he = never received=20 notice of either the divorce action or the 1986 decree. The return = of=20 citation states that Phillips was personally served in California. = According to Phillips, however, it was not until the Attorney = General=20 requested that a writ of income withholding be sent to his = California=20 employer in 1991, that he became aware of the 1986 decree's child = support=20 order. Using a form motion sent along with the writ of income = withholding,=20 Phillips moved to stay delivery of the writ on grounds that the = amount of=20 arrearages alleged was incorrect and that he was not behind in = paying=20 child support because he had complied with the earlier California = order,=20 requiring him to pay $125 per month for Aundre. In November of = 1991, when=20 he appeared for a hearing on his motion to stay deliver of the = writ,=20 Phillips alleged that he was advised that the hearing would be = reset. He=20 testified that he was never notified of a later hearing date. The = trial=20 court issued a default order in July of 1992 denying his motion to = stay=20 ("the 1992 order") and finding a child support arrearage in the = amount of=20 $24,671.50. The 1992 order also required that an additional $240 = per month=20 be withheld from Phillips's paycheck in order to satisfy the = arrearage.=20

Thirteen years later, the = Attorney=20 General sent a notice of levy to Phillips's bank. Funds in the = amount of=20 $12,555.38 were levied from his account. In response to the levy, = Phillips=20 filed a motion to confirm the amount of his child support = arrearage. The=20 Attorney General filed an answer and countermotion to confirm the=20 arrearage.

Before the trial court ruled on = these=20 motions, however, Phillips filed an additional motion to declare = judgments=20 void, arguing that both the 1986 decree and the 1992 order were = void. In=20 his motion, Phillips asserted that the 1986 decree was void = because it=20 failed to allege jurisdictional facts and because he had never = been served=20 with the petition or received notice of the 1986 decree. He = asserted that=20 the 1992 order was void because he had never received notice of = either the=20 hearing on the motion or the 1992 order itself. After a hearing on = the=20 motion to declare judgments void, the trial court ruled in = Phillips's=20 favor and declared both the 1986 decree and the 1992 order void. = In=20 addition, the trial court found that Phillips owed $0 in child = support=20 arrearages and ordered the Attorney General to return the funds = levied=20 from Phillips's bank account.

At the request of the Attorney = General,=20 the trial court issued findings of fact and conclusions of law. In = a=20 single finding of fact, the trial court found that "Joe V. = Phillips owes=20 $0 in child support arrears." In addition, the trial court issued = the=20 following conclusions of law:

1. Joe V. Phillips's Motion to = Declare=20 Judgments Void was pled and tried as a collateral attack on the = provisions=20 of the 1986 divorce decree relating to paternity and child support = and on=20 the 1993 [sic] Order on Motion to Stay.

2. Joe V. Phillips's claims = that he was=20 not served with process in the divorce action, that he did not = receive=20 notice of the divorce decree, the hearing on his motion to stay, = or of the=20 Order on the Motion to Stay, and that the court had no authority = to enter=20 a default judgment against him on his motion to stay cannot be = brought in=20 a collateral attack, but could only be brought in a bill of = review.=20

3. If the record shows that the = defendant=20 is not a Texas resident and long-arm jurisdiction has not been = pled, the=20 subject-matter jurisdiction of a Texas court has not been invoked = and the=20 court lacks subject-matter jurisdiction to establish the = defendant's=20 paternity of a child or order him to pay child = support.

4. The provisions of the 1986 = divorce=20 decree relating to paternity and child support are void because = Mary Ann=20 Phillips's divorce petition did not plead facts sufficient to = establish=20 long-arm jurisdiction over Joe V. Phillips, whom she alleged to = reside=20 outside Texas.

5. The 1993 [sic] Order on = Motion to Stay=20 is void because it is based on the provisions of the 1986 divorce = decree=20 finding paternity and ordering child support, which are=20 void.

6. Because the 1993 [sic] Order = on Motion=20 to Stay and the provisions of the divorce decree ordering support = are=20 void, Joe V. Phillips owes $0 in child support arrears as a matter = of=20 law.

7. Because Joe V. Phillips owes = $0 in=20 child support arrears, the Office of the Attorney General was not = entitled=20 to levy his Wells Fargo account.

8. Because the Office of the = Attorney=20 General was not entitled to levy Joe V. Phillips's Wells Fargo = account,=20 Joe V. Phillips is entitled to an order requiring the Office of = the=20 Attorney General to return to him the money it had levied.=20

Motion = to Declare=20 Judgments Void

In its first issue, the = Attorney General=20 argues that the trial court improperly granted Phillips's motion = to=20 declare the 1986 decree and 1992 order void. Specifically, the = Attorney=20 General argues that the motion was improperly granted because (1) = Phillips=20 could not collaterally attack a lack of notice in his motion to = declare=20 the judgments void and, (2) by generally appearing, Phillips = consented to=20 the trial court's exercise of personal jurisdiction. We agree. =

Notice

In his motion, Phillips argued = that both=20 the 1986 decree and the 1992 order were void on the grounds that = he never=20 received notice of the divorce action, the 1986 decree, the = hearing on his=20 motion to stay, or the 1992 order denying his motion to stay. A = judgment=20 that is void may be collaterally attacked. See Solomon, = Lambert, Roth=20 & Assocs., Inc. v. Kidd, 904 S.W.2d = 896, 900=20 (Tex. App.--Houston [1st Dist.] 1995, no writ) ("[A] collateral = attack=20 does not seek rendition of a new judgment to correct the judgment = under=20 attack, but merely seeks to show that the original judgment is = void . . .=20 ."). A judgment is void only if the court had no jurisdiction over = the=20 parties or property, no jurisdiction over the subject matter, no=20 jurisdiction to enter the particular judgment, or no capacity to = act as a=20 court. Id. All errors other than jurisdictional = deficiencies=20 render a judgment merely voidable, and such errors must be = corrected on=20 direct attack. See id.; see also Plains Growers, Inc. = v.=20 Jordan, 519 S.W.2d 633, 637 (Tex. 1974) (lack of notice of = hearing or=20 signed judgment do not render judgment void).

Here, Phillips's = motion=20 constituted a collateral attack on the 1986 decree and the 1992 = order=20 because it did not seek the rendition of a new judgment to correct = those=20 under attack, but instead sought to show merely that the original = decree=20 and order were void. See Kidd, 904 S.W.2d at 900. Because = a lack=20 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,=20 the 1986 divorce decree, the hearing on his motion to stay, or the = 1992=20 order denying his motion to stay were not properly made in his = motion to=20 declare judgments void. See id.; see also Plains = Growers,=20 Inc., 519 S.W.2d at 637. We agree with the trial court's = second=20 conclusion of law, in which the trial court properly recognized = that=20 Phillips's complaints about lack of notice could not be asserted = as a=20 collateral attack in his motion to declare judgments void. For = this=20 reason, neither the 1986 decree nor the 1992 order could be = declared void=20 for lack of notice.

Personal=20 Jurisdiction

Phillips also = challenged=20 the 1986 decree on the grounds that the trial court lacked = personal=20 jurisdiction, and, in its conclusions of law, the trial court = stated that=20 the 1986 decree was void because the divorce petition did not = plead facts=20 sufficient to establish long-arm jurisdiction over Phillips, a=20 non-resident of Texas.^{=20
(1)} Because the divorce petition requested the = appointment of a=20 managing and possessory conservator over the Phillips children, as = well as=20 child support, the suit was one affecting the parent-child = relationship.=20 See Tex. Fam. Code Ann. =A7 101.032(a) (Vernon 2002). In = a suit=20 affecting the parent-child relationship, a court may exercise = personal=20 jurisdiction over a non-resident if "the person submits to the=20 jurisdiction of this state by consent, by entering a general = appearance,=20 or by filing a responsive document having the effect of waiving = any=20 contest to personal jurisdiction . . . ." Tex. Fam. Code Ann. =A7=20 102.011(b)(2) (Vernon 2002). A party enters a general appearance = whenever=20 it invokes the judgment of the court on any question other than = the=20 court's jurisdiction; if a defendant's act recognizes that an = action is=20 properly pending or seeks affirmative action from the court, that = is a=20 general appearance. Moore v. Elektro-Mobil Technik GmbH, = 874=20 S.W.2d 324, 327 (Tex. App.--El Paso 1994, writ denied).

Here, Phillips filed two = motions seeking=20 affirmative action from the trial court before filing his motion = to=20 declare the 1986 decree void for want of personal jurisdiction.=20 Specifically, in 1991, Phillips filed a motion to stay delivery of = the=20 writ of withholding, and, in 2005, a motion to confirm child = support=20 arrearages. In his motion to confirm arrearages, Phillips sought=20 affirmative relief from the trial court in the form of a temporary = restraining order, sanctions, and attorneys fees. Because Phillips = invoked=20 the judgment of the court on a question other than the court's=20 jurisdiction, he entered a general appearance. See id. By = entering a general appearance, Phillips consented to the trial = court's=20 exercise of personal jurisdiction. See Tex. Fam. Code = Ann. =A7=20 102.011(b)(2). Because Phillips consented to the trial = court's=20 exercise of personal jurisdiction, we hold that the trial court = erred in=20 concluding that the 1986 decree was void because no jurisdictional = facts=20 were pled in the divorce petition.

Because the trial court = adjudged that=20 Phillips owed $0 in child support arrears and ordered the Attorney = General=20 to return funds levied from his account as a result of the finding = that=20 the 1986 decree and 1992 order were void, the error in granting = Phillips's=20 motion probably caused the rendition of an improper judgment. = See=20 Tex. R. App. P. 44.1(a). As such, it is reversible error. = Id.=20

Accordingly, we sustain the = Attorney=20 General's first issue. Judgment on Arrearage and Levied=20 Money

In its second = and third=20 issues, the Attorney General argues that (1) the trial court erred = in=20 confirming Phillips's arrears at $0 because that finding was based = on an=20 incorrect conclusion of law, namely the conclusion that the 1986 = decree=20 and the 1992 order were void, as well as legally and factually=20 insufficient evidence, and (2) the trial court erred in ordering = the=20 Attorney General to return levied money based on the same = incorrect=20 conclusion of law. We agree.

An erroneous finding of fact or = conclusion of law does not mandate that judgment of trial court = must be=20 reversed. Lee v. Lee, 981 S.W.2d 903, 906 (Tex. = App.--Houston=20 [1st Dist.] 1998, no pet.). If the judgment is otherwise correct = upon the=20 merits, it is not to be reversed because the trial court grounded = it upon=20 incorrect legal reasons. Id. Here, in its sixth and = seventh=20 conclusions of law, the trial court concluded that, "[b]ecause the = 1993=20 [sic] Order on Motion to Stay and the provisions of the divorce = decree=20 ordering support are void, Joe V. Phillips owes $0 in child = support=20 arrears as a matter of law" and "[b]ecause Joe V. Phillips owes $0 = in=20 child support arrears, the Office of the Attorney General was not = entitled=20 to levy his Wells Fargo account." That is, the trial court = premised its=20 judgment confirming arrears and ordering the return of levied = funds on its=20 conclusion that the 1986 decree and the 1992 order were void, a = conclusion=20 we held to be erroneous. The record does not demonstrate any other = basis=20 which would render the trial court's judgment confirming arrears = at $0 and=20 ordering the return of levied funds correct. As a result, we hold = that the=20 trial court erred in adjudging Phillips's child support arrears at = $0 and=20 in ordering the Attorney General to return the levied funds. =

Accordingly, we sustain the = Attorney=20 General's second and third issues.

Conclusion

Because we have concluded that = neither=20 the 1986 decree nor the 1992 order is void, we reverse the = judgment=20 confirming arrears at $0 and ordering the Attorney General to = return funds=20 levied from Phillips's bank account. We remand Phillips's motion = to=20 confirm child support arrearages to the trial court for further=20 consideration.

George C. Hanks, Jr.

Justice

Panel consists of Justices = Nuchia, Hanks,=20 and Bland.

1. ' - - - ' -- - - - -- ' '=20

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