Mark Edward Athans v. Charity Athans
09-20-00047-CV
| Tex. App. | Jan 13, 2022Background
- Mark Athans married Charity on August 7, 2017; they later divorced in March 2019 in Montgomery County County Court at Law No. 3, which denied Mark’s request for annulment and entered a Final Decree of Divorce.
- After the divorce, Charity was indicted and later pleaded guilty to bigamy (deferred adjudication, January 2020); Mark alleges Charity was still married to others when they married.
- In September 2019 Mark filed a separate suit in a different Montgomery County court seeking a declaration that his marriage to Charity was void under Tex. Fam. Code § 6.202 and § 6.307 and asking the Final Decree of Divorce be set aside; he attached a South Dakota order declaring the marriage null.
- The second (current) trial court sua sponte dismissed Mark’s suit for want of jurisdiction, reasoning the original divorce court had jurisdiction and Mark’s remedy was a bill of review in the court that rendered the Final Decree.
- On appeal, the Ninth Court of Appeals affirmed, holding Mark could not collaterally attack a regular-on-its-face divorce decree, § 6.307 did not apply, and a bill of review in the original court was his exclusive remedy to directly attack the decree.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the original trial court had subject-matter jurisdiction to render the Final Decree of Divorce | Mark: marriage was void for bigamy, so original court lacked jurisdiction and its decree is void | Charity: original court had jurisdiction; decree is regular on its face | Court: original court had jurisdiction; decree not void for lack of jurisdiction |
| Whether Mark could collaterally attack the divorce decree in a new suit | Mark: his new suit is a collateral attack to declare the marriage void and void the decree | Charity: collateral attack unavailable because decree is regular on its face; errors other than jurisdiction are voidable only by direct attack | Court: collateral attack unavailable; decree not void, so collateral attack fails |
| Whether Tex. Fam. Code § 6.307 allowed the current court to declare the marriage void in this collateral proceeding | Mark: § 6.307 permits a collateral proceeding to declare a marriage void when contracted/domiciled in Texas | Charity: § 6.307 does not apply because the decree is not void for lack of jurisdiction | Court: § 6.307 inapplicable because the Final Decree is not void for lack of jurisdiction |
| Whether Mark was required to pursue a bill of review and whether the current court could grant it | Mark: sought relief in new suit (and cited South Dakota nullity order) rather than filing in original court | Charity: exclusive remedy is bill of review in original court | Court: plenary power expired; bill of review in the court that rendered the decree is the exclusive direct remedy; current court lacked power to set aside decree |
Key Cases Cited
- Graber v. Fuqua, 279 S.W.3d 608 (Tex. 2009) (standard for reviewing jurisdictional dismissal)
- Texas Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217 (Tex. 2004) (pleading must affirmatively show jurisdiction; construe pleadings in plaintiff’s favor)
- Hagen v. Hagen, 282 S.W.3d 899 (Tex. 2009) (final divorce decrees regular on their face are not subject to collateral attack if court had jurisdiction)
- Berry v. Berry, 786 S.W.2d 672 (Tex. 1990) (judgment is not void where court had jurisdiction over parties and subject matter)
- In re Thompson, 569 S.W.3d 169 (Tex. App.—Houston [1st Dist.] 2018) (distinguishes direct vs. collateral attack; bill of review guidance)
- Cottone v. Cottone, 122 S.W.3d 211 (Tex. App.—Houston [1st Dist.] 2003) (bill of review in court rendering the judgment is the exclusive remedy)
- King Ranch, Inc. v. Chapman, 118 S.W.3d 742 (Tex. 2003) (elements and nature of a bill of review)
- Ragsdale v. Ragsdale, 520 S.W.2d 839 (Tex. Civ. App.—Fort Worth 1975) (transfer back to court that rendered judgment relates to original filing and jurisdiction)