In re Interest of D.S.

• Decision Date: 18 July 2018
• Docket Number: No. 05-17-01068-CV,No. 05-17-01066-CV,05-17-01066-CV
• Citation: 555 S.W.3d 301
• Parties: IN the INTEREST OF D.S., a Child, and In the Matter of the Marriage of G.S. and A.G.
• Court: Texas Court of Appeals

555 S.W.3d 301

IN the INTEREST OF D.S., a Child, and In the Matter of the Marriage of G.S. and A.G.

No. 05-17-01066-CV

No. 05-17-01068-CV

Court of Appeals of Texas, Dallas.

Opinion Filed July 18, 2018

Rehearing En Banc Denied August 10, 2018

Lauren Melhart, Katherine A. Kinser, Kinser & Bates, LLP, Charles "Chad" Baruch, Johnston Tobey Baruch PC, Dallas, TX, for Appellant.

Rebecca Tillery Rowan, Ike Vanden Eykel, KoonsFuller, PC, Deborah G. Hankinson, Rick Thompson, Hankinson LLP, Dallas, TX, for Appellee.

Before Justices Bridges, Fillmore, and Stoddart

OPINION ON REHEARING

Opinion by Justice Fillmore

We deny the motion for rehearing filed by G.S. (Mother). On our own motion, we withdraw our opinion of April 18, 2018, and vacate the judgments of that date. The following is now the Court’s opinion.

After Mother filed for divorce from A.G. (Father), Father signed an affidavit for voluntary relinquishment of his parental rights to his daughter, D.S. Based on the affidavit, the trial court signed an agreed order terminating Father’s parental rights to D.S. The trial court also signed an agreed final decree of divorce, incorporating Mother and Father’s agreements as to the division of the marital property.

Father subsequently filed two petitions for bill of review, challenging the agreed order of termination and the property division in the agreed final decree of divorce. The trial court denied both petitions for bill of review, and Father brought this appeal, arguing (1) the order terminating his parental rights to D.S. is void, and the trial court erred by determining it could not consider extrinsic evidence in considering whether it had jurisdiction over the termination proceeding; and (2) if the order terminating his parental rights to D.S. is void, the property division in the agreed final decree of divorce must be re-evaluated based on custody and the best interest of the child. We reverse the trial court’s denial of the petition for bill of review in the termination proceeding and render judgment that the agreed order of termination is void. We affirm the trial court’s denial of the petition for bill of review in the divorce proceeding.

Background

Mother and Father were married in Texas in 2007. After they married, both Mother and Father lived and worked in Texas. Father subsequently accepted a job in Massachusetts, and Mother and Father purchased a house in Massachusetts in December 2014. At that time, Father was living and working in Massachusetts, while Mother was living and working in Texas. D.S. was born in Massachusetts in January 2015. Following D.S.’s birth, Mother, Father, and D.S. lived in Massachusetts while Mother was on maternity leave. After Mother returned to work, D.S. began living in both Massachusetts and Texas.

Mother filed for divorce in Collin County, Texas on September 25, 2015. As relevant to this appeal, Mother alleged D.S. was a child of the marriage, D.S. was not under the continuing jurisdiction of any other court, and there were no "court-ordered conservatorships, court-ordered guardianships, or other court-ordered relationships affecting" D.S. Mother filed a first amended petition for divorce on October 1, 2015, making the same jurisdictional allegations regarding D.S. Attached to the first amended petition for divorce was Mother’s affidavit stating, as relevant here, that D.S. was eight months old and lived with Mother in Collin County.

On October 2, 2015, Father signed an affidavit for voluntary relinquishment of parental rights. That same day, he signed a "mediated settlement agreement" in which he agreed his parental rights to D.S. would be terminated, but he would maintain a life insurance policy naming D.S. as the beneficiary; pay $3,500 per month into a trust account or college savings account for D.S. for a period of sixty months; and transfer any "windfall," defined as an inheritance, increase in income, or gift in excess of $30,000, to D.S.

Mother filed a second amended petition for divorce on October 13, 2015, in which she made the same jurisdictional allegations regarding D.S. Mother sought termination of the parent–child relationship between Father and D.S. on the ground Father had executed an irrevocable affidavit of voluntary relinquishment of parental rights as provided by chapter 161 of the family code. On October 15, 2015, the trial court signed an agreed order severing Mother’s request for termination of Father’s parental rights from the divorce proceeding.

The trial court signed an agreed order terminating the parent–child relationship between Father and D.S. on October 21, 2015. The trial court signed a nunc pro tunc order of termination on October 26, 2015, which contained Father’s legible signature. In both the original and nunc pro tunc orders, the trial court found "after examining the record and hearing the evidence and argument of counsel," that it had "jurisdiction of this case and of all the parties and that no other court has continuing, exclusive jurisdiction of this case." The trial court named Mother the sole managing conservator of D.S.

On November 25, 2015, the trial court signed an agreed final decree of divorce. The trial court found the parties had entered into a written agreement as set out in the decree. The decree referenced the October 21, 2015 order terminating Father’s parental rights and found the October 21, 2015 order resolved "all the issues concerning the child." The trial court divided the marital estate, including awarding to Mother the sum of $210,000 payable by Father in sixty monthly installments of $3,500 and awarding to D.S. the life insurance policy on Father and any "windfall" received by Father.

Father filed a petition for bill of review in the termination case on April 21, 2016, and a petition for bill of review in the divorce case on December 8, 2016. Father sought to set aside the order terminating his parental rights to D.S. and the property division in the final decree of divorce. Father alleged that Mother was an attorney and prepared all the documents for both the termination and the divorce. Father further alleged he signed both the agreed divorce decree and the affidavit of voluntary relinquishment based on Mother’s fraudulent misrepresentations and under duress and coercion from both Mother and her family. In an amended petition for bill of review in the termination case, Father also asserted Massachusetts was D.S.’s home state on the date Mother commenced the divorce action, the trial court did not have jurisdiction to make an initial child custody determination regarding D.S., and the termination order was void.

The trial court tried the petitions for bill of review together. The trial court denied both petitions and made findings of fact and conclusions of law.¹ As relevant to Father’s claim the termination order was void for lack of subject matter jurisdiction, the trial court found neither the second amended petition for divorce nor the affidavit of voluntary relinquishment contained any pleadings or factual assertions about D.S.’s state of residence. The trial court also found (1) Mother has worked for the same law firm in Dallas, Texas since 2012; (2) during their marriage and through the entry of the final orders, Mother and Father purposefully availed themselves of medical treatment, property, financial services, and other benefits in both Texas and Massachusetts; (3) D.S. was born in January 2015, and lived with a parent in Massachusetts from birth until May 13, 2015; and (4) D.S. began living in both Massachusetts and Texas with Mother and Father on May 13, 2015, and began living exclusively with Mother in Texas on October 2, 2015. The trial court found that from D.S.’s birth through the entry of the final order, Mother, Father, and D.S. had a significant connection with both Texas and Massachusetts, other than mere physical presence, and substantial evidence was available in both Texas and Massachusetts concerning D.S.’s care, protection, training, and personal relationships. The trial court also found that, at the time the "mediated settlement agreement" was signed, the "parties had not mediated with a mediator."

Based on the evidence admitted at the trial of the petitions for bill of review, the trial court concluded Father failed to prove any element of his petition for bill or review in the termination case.² Therefore, Father’s challenge to the agreed order terminating his parental rights to D.S. was a "collateral attack rather than a direct attack." On the issue of whether it had jurisdiction over the termination proceeding, the trial court concluded section 161.211(c) of the family code³ did not "remove" its power to determine subject matter jurisdiction and, in connection with the collateral attack, the "clear and definite recitals in the Agreed Order of Termination of Parent–Child Relationship on jurisdictional matters are conclusive of all issues of jurisdiction." The trial court finally concluded the record of the underlying termination proceeding did not reveal a jurisdictional defect because (1) Father’s parental rights were terminated based on an affidavit of voluntary relinquishment that met the requirements of the family code⁴ and on Father’s agreement to the final order; (2) the "Waiver of Service on Termination" signed by Father met the requirements of rule of civil procedure 119 ; and (3) there was no requirement a copy of an order of termination be mailed to the parties.

Although not forming the basis of the trial court’s denial of Father’s petition for bill of review in the termination proceeding, the trial court also made conclusions of law pertaining to its jurisdiction over the termination proceeding under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).⁵ The trial court concluded the requirements of the UCCJEA are jurisdictional and, pursuant to the UCCJEA: (1) Massachusetts was D.S.’s home state from birth until May 13, 2015; (2) beginning on May 13, 2015, D.S. did not...