Joiner v. Vasquez

• Decision Date: 11 December 1981
• Docket Number: No. 20558,20558
• Citation: 632 S.W.2d 755
• Parties: William Henry JOINER, Jr., Appellant, v. Mrs. Karen H. VASQUEZ, Appellee.
• Court: Texas Court of Appeals

Page 755

632 S.W.2d 755

William Henry JOINER, Jr., Appellant, v. Mrs. Karen H. VASQUEZ, Appellee.

No. 20558.

Court of Appeals of Texas, Dallas.

Dec. 11, 1981.

Rehearing Denied En Banc April 30, 1982.

Charles H. Robertson, Dallas, for appellant.

Steven G. Condos, Louis Davis, Jr. (ad litem), Dallas, for appellee.

Before GUITTARD, C. J., and AKIN and CARVER, JJ.

GUITTARD, Chief Justice.

William Henry Joiner, Jr. appeals from a denial of his bill of review attacking a decree terminating his parental rights in two children. We affirm because Joiner's present bill of review is barred by a judgment rendered against Joiner in an earlier bill of review alleging similar grounds.

The record reflects that Joiner was married to Karen in 1967 and thereafter two children were born to them while they were residents of the State of Oklahoma. The parties were divorced in 1971 in Oklahoma proceedings, and the children were placed under the control of Karen while Joiner was required to provide for their support. Karen and the children remained in Oklahoma until 1974, when they moved to Texas. In 1976 Karen instituted a proceeding in the juvenile court of Dallas County to terminate Joiner's parental rights. A guardian ad litem was appointed to represent the children's interests. Personal service of process was first attempted upon Joiner and, thereafter, service was undertaken by publication and an attorney ad litem was appointed to represent Joiner. On June 3, 1976, following a trial before the court, the juvenile court rendered final decree terminating Joiner's parental rights.

On the following February 24, 1977, Joiner filed his first bill of review attacking the termination decree on the grounds that he had a meritorious defense to the grounds alleged in the termination petition, that the record contained no evidence that termination of his parental rights would be in the best interest of the children, that he was not served by personal service and had no knowledge of the suit or the trial, that the appointed attorney ad litem did not contact him, that he was prevented from presenting his meritorious defense without negligence on his part, that the evidence at the trial did not support termination of his parental rights, and that in these respects he was denied his constitutional rights.

The court heard evidence on this first bill of review and denied the relief sought by an order signed September 22, 1977. Joiner did not appeal. Instead, he filed a second bill of review on the same grounds, which the court dismissed on a plea of res judicata. Again, he did not appeal. His present and third bill of review was filed January 3, 1980. In this bill of review he alleges the same grounds as in his first bill of review and other grounds as well. He alleges that citation by publication in the termination suit was improper because the officer's return In response to the third bill of review, Karen filed a plea of res judicata based on the judgment denying the first bill of review. At a pretrial hearing the plea of res judicata was sustained and judgment was rendered that the bill of review "be and the same is denied as a matter of law." The judgment recites that a guardian ad litem appointed by the court appeared and represented the children, but no pleading by him is shown.

did not show diligence in attempting personal service, that the appointed attorney ad litem did not provide effective representation, and that the evidence before the court in the earlier suit was insufficient to support termination. He also alleges that section 11.09 of the Texas Family Code, which authorizes citation by publication to persons who cannot be notified by personal service or registered or certified mail, is unconstitutional because it requires publication only one time. He alleges that the first bill of review was brought within two years, the time permitted by rule 329 of the Texas Rules of Civil Procedure for a motion for new trial after a judgment is rendered on citation served by publication. He further alleges that the judgment of September 22, 1977, denying his first bill of review, does not bar his present bill of review "because the defense of res judicata is not applicable to jurisdictional questions."

Joiner first argues that the trial court was in error in sustaining the plea of res judicata because the facts he pleaded showed that the termination decree was void, and, therefore, the judgment denying the first bill of review could not give the void termination decree any validity or bar his current attack. To support this argument, Joiner relies on judicial expressions, such as those in Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, 827 (1961), and Dews v. Floyd, 413 S.W.2d 800, 804-05 (Tex.Civ.App.-Tyler 1967, no writ), to the effect that a void judgment is a nullity and may be disregarded anywhere at any time. From this premise, Joiner reasons that a judgment denying a bill of review does not bar a subsequent bill of review if the original judgment is void. Consequently, he insists, no matter how many bills of review may be attempted unsuccessfully, none can result in final disposition of the controversy until the voidness of the original judgment is correctly declared or the rights of third parties have intervened.

This argument is untenable for two reasons. First, the termination decree is not "void" in the sense that that term is used in the cases cited. It is a judgment which the juvenile court had jurisdictional power to render in the sense of jurisdiction over the subject matter. It is alleged to be "void" only because of lack of proper service of process, that is to say, lack of jurisdiction of the person. Since it reveals no lack of jurisdiction on its face and recites proper service, it is not subject to collateral attack. Pure Oil Co. v. Reece, 124 Tex. 476, 78 S.W.2d 932, 934-35 (1935); Crawford v. McDonald, 88 Tex. 626, 33 S.W. 325, 328 (1895); Imatani v. Marmolejo, 606 S.W.2d 710, 713 (Tex.Civ.App.-Corpus Christi 1980, no writ). Such a judgment is subject to attack only by a bill of review in which evidence of lack of service is adduced and a meritorious defense is shown. Deen v. Kirk, 508 S.W.2d 70, 72 (Tex.1974); McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 710 (1961). For example, a divorce decree may be attacked in a bill of review on the ground that the record affirmatively shows that a waiver of process is invalid, but it is not subject to collateral attack on that ground, since the court had jurisdictional power to determine validity of the waiver and to render the decree. Thus, we cannot agree that a termination decree rendered on defective service by publication is "void" in the sense that it may be disregarded anywhere and at any time. Deen v. Kirk, supra.

Second, the plea of res judicata was properly sustained because the judgment denying the first bill of review is conclusive on the issue of the court's jurisdiction in the termination suit. The first bill of review was a direct attack, and might properly have been considered as a motion for new trial within rule 329, to which the strict requirements of a bill of review did not apply, because citation was Under this rule, a Texas court is bound by its own earlier judgment determining an issue of jurisdiction. Farmer v. Saunders, 60 Tex.Civ.App. 197, 128 S.W. 941, 942 (1910, no writ). The rule is based on the principle that there must be an end to litigation, and when a party has had his day in court with an opportunity to present his evidence and his view of the law, there is no reason to believe that the second decision will be more satisfactory than the first. Stoll v. Gottlieb, 305 U.S. 165, 171-72, 59 S.Ct. 134, 137, 83 L.Ed. 104 (1938). Moreover, judicial power includes the power to make erroneous as well as correct decisions; otherwise a judgment would always be subject to attack on its merits, and litigation would never end.

served by publication and the bill of review was filed within two years. Nevertheless, a direct attack was made, the jurisdiction of the juvenile court in the termination proceeding was put in issue, relief was denied, and Joiner did not appeal. That judgment bars the present bill of review under the well-settled rule that a party is bound by an adjudication of the court's jurisdiction in a contested proceeding. Restatement of Judgments § 9 (1942).

Under these well-established rules, even though the original termination decree may be void-or, more properly, voidable-in the sense that it was rendered without valid service of process, the judgment in the first bill of review is valid and stands as a bar to the present bill of review. No attack on the bill-of-review judgment is made here for lack of jurisdiction over either parties or subject matter in that proceeding. Obviously, if the court had granted relief setting aside the termination decree and restoring Joiner's parental rights, and no appeal had been taken, all parties would have been bound. If the contrary determination was erroneous for any of the reasons now alleged, Joiner's remedy was to appeal. His right to attack the termination decree died with his failure to appeal from the denial of his first bill of review. See Layton v. Layton, 538 S.W.2d 642, 648 (Tex.Civ.App.-San Antonio 1976, writ ref'd n. r. e.).

Joiner insists that he should not be bound by the judgment denying his first bill of review because he has raised additional issues that were not raised in that proceeding. In particular, he asserts that the best interest of the children is the paramount consideration and their interest has never been determined. Although this argument has a strong appeal, it cannot prevail against the established rules governing the finality of judgments announced by the authorities above cited. Assertion of additional grounds which, by the use of diligence, might have been tried in an earlier proceeding does not avoid the bar of res judicata. Rizk v. Mayad...