Narvaez v. Maldonado

• Decision Date: 23 January 2004
• Docket Number: No. 03-03-00012-CV.,03-03-00012-CV.
• Citation: 127 S.W.3d 313
• Parties: Rafael Francisco NARVAEZ, Appellant, v. Rita Ortiz MALDONADO, Appellee.
• Court: Texas Court of Appeals

127 S.W.3d 313

Rafael Francisco NARVAEZ, Appellant, v. Rita Ortiz MALDONADO, Appellee.

No. 03-03-00012-CV.

Court of Appeals of Texas, Austin.

January 23, 2004.

Cynthia Guerra, Law Office of Cynthia Guerra, Houston, for appellant.

J. Terry Weeks, Austin, for appellee.

Before Chief Justice LAW, Justices B.A. SMITH and PURYEAR.

OPINION

BEA ANN SMITH, Justice.

This is an appeal from the denial of a bill of review. Appellee Rita Ortiz Maldonado sued appellant Rafael Francisco Narvaez for divorce. When he failed to respond, she obtained a default judgment against him. Narvaez filed a bill of review challenging the default judgment. The trial court denied the bill of review, and Narvaez now appeals that denial. Because we conclude that Narvaez did not satisfy the bill of review requirements, and because the trial court had jurisdictional authority to render the default judgment, we affirm the trial court's judgment denying the bill of review.

BACKGROUND

On November 17, 2000, Maldonado filed for divorce from Narvaez. Although the two had never been ceremonially married, Maldonado asserted that they shared an informal marriage, see Tex. Fam.Code Ann. § 2.401(a)(2) (West 1998), and had three children together. It is undisputed that Narvaez was properly served with the citation and petition. On December 14, in lieu of filing a response, Narvaez signed the officer's return that was attached to the citation that had been served on him, had the document notarized, and mailed it to the Travis County district clerk's office. The signed document was not designated as a response to the petition, did not offer any form of response, and did not include Narvaez's address.

On March 15, 2001, the trial court granted a default decree of divorce by which the court divided the community estate, appointed Maldonado managing conservator of the three children and Narvaez possessory conservator, and ordered Narvaez to pay child support. It is unclear from the record whether Narvaez timely received notice of the judgment. On May 15, Narvaez filed a motion for new trial and to set aside the judgment. Because the record does not reveal when Narvaez received notice of the default judgment, it is also unclear whether his motion for new trial was considered timely filed. Although it appears that a judge (not the one that granted the default judgment) held a hearing on the motion, the court did not rule on it; if it was timely filed, it was overruled by operation of law.¹

On May 10, 2002, over a year after the trial court rendered the default judgment and almost a year after the hearing on his motion for new trial, Narvaez filed his bill of review petition. At the bench trial, Narvaez presented evidence demonstrating that he had been married before entering into his relationship with Maldonado and had never divorced his wife, that Maldonado knew he was married to another woman, and that he was not the father of one of the three children that he was ordered to support. Maldonado's testimony corroborated Narvaez's assertions. Following the presentation of evidence, the trial court announced that Narvaez had proven he had a meritorious defense—one of the elements of a bill of review—but he had failed to satisfy the remaining bill of review elements. The court therefore denied Narvaez's bill of review. He now appeals.

DISCUSSION

Void Judgment

As a preliminary matter, Narvaez asserts that because he was never divorced from his first wife, he could not have been married to Maldonado, and the divorce decree is therefore void. He further argues that because there was no marriage to Maldonado, the Travis County court had no jurisdiction to divide or distribute the real property, which was located in Harris County. By these points, Narvaez seeks not to satisfy the requirements of a bill of review, but to collaterally attack the underlying judgment. See Texas Dep't of Transp. v. T. Brown Constructors, Inc., 947 S.W.2d 655, 659 (Tex.App.-Austin 1997, writ denied) (bill of review that fails as direct attack may constitute collateral attack).

When a bill of review complainant collaterally attacks a judgment on the ground that it is void because the trial court lacks jurisdictional power to render it, the complainant is not required to prove the elements of a bill of review. See Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985). "Jurisdictional power" in the context of a collateral attack is defined as "jurisdiction over the subject matter, the power to hear and determine cases of the general class to which the particular one belongs." Id. The supreme court has given two examples of what is meant by a court lacking jurisdictional power to render judgment: where a county court renders a divorce decree and where a county court enters a judgment regarding title to land. McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706, 709-10 (1961). All other errors must be corrected through a bill of review if the time for a direct appeal has elapsed. Middleton, 689 S.W.2d at 213-14.

In a collateral attack on a judgment, the recitations of the judgment control the rest of the record, and extrinsic evidence cannot be used to establish a lack of jurisdiction. Huffstutlar v. Koons, 789 S.W.2d 707, 710 (Tex.App.-Dallas 1990, no writ). The final decree of divorce in this case recites that the court has jurisdiction and that Maldonado has been a domiciliary of Texas for the preceding six months, thus satisfying the requirements for granting a divorce set forth in section 6.301 of the family code. See Tex. Fam.Code Ann. § 6.301 (West 1998); see also Reynolds v. Reynolds, 86 S.W.3d 272, 276 (Tex.App.-Austin 2002, no pet.) (although section 6.301 is not itself jurisdictional, it is akin to jurisdictional provision in that it controls party's right to maintain suit for divorce). The decree is regular on its face and was rendered by a court of general jurisdiction. See, e.g., Faglie v. Williams, 569 S.W.2d 557, 563 (Tex.Civ.App.-Austin 1978, writ ref'd n.r.e.) (holding that a judgment that is regular on its face and rendered by court of general jurisdiction does not yield to collateral attack; must be set aside by direct attack). Narvaez's claim that the decree is void because he was not yet divorced from his first wife and could therefore not be married to Maldonado is not a jurisdictional deficiency; rather it is a defense that should have been argued to the court during a trial on the merits. See Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (error other than lack of jurisdiction renders judgment "voidable" and may be corrected through ordinary appellate process); see also Faglie, 569 S.W.2d at 565 (existence of common law marriage is question of fact). It is clear in this case that the trial court had jurisdiction to render its judgment. Thus, Narvaez's collateral attack on the judgment must fail. His exclusive remedy for challenging the default divorce decree was through a bill of review. Middleton, 689 S.W.2d at 213-14 (holding that when party failed to establish that court lacked jurisdictional power to render judgment, bill of review is exclusive remedy to set aside judgment). We overrule the first two issues.

Due Process

By his third issue, Narvaez asserts that his due process rights were violated because he was not provided notice of the default judgment hearing even though he filed the equivalent of an answer. See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 86-87, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) (once defendant makes appearance in cause, he is entitled to notice of trial setting as matter of due process under Fourteenth Amendment to Constitution); LBL Oil Co. v. International Power Servs., Inc., 777 S.W.2d 390, 390-91 (Tex. 1989) (same); Lopez v. Lopez, 757 S.W.2d 721, 723 (Tex.1988) (same). Maldonado responds that Narvaez was not entitled to notice because what he filed cannot be construed as an answer. We agree with Maldonado.

Narvaez testified that after he was served with the citation and divorce petition, he took the citation to a notary, signed the return portion of the citation, and mailed it back to the Travis County district clerk. The citation with the signed return was filed on January 2, but was not designated as an answer. Narvaez claims on appeal that the envelope in which the citation was mailed included his return address. The envelope, however, is not a part of the record because the district clerk threw it away, and there is nothing in the record indicating that the envelope indeed included Narvaez's return address. Narvaez nevertheless argues that the citation and signed return, coupled with the envelope that presumptively bore his return address, constitute an answer to the divorce petition.

Narvaez relies on Smith v. Lippmann, 826 S.W.2d 137 (Tex.1992), in support of his argument. In that case, the supreme court held that a letter filed by the defendant, though not in the "standard form," nonetheless constituted an answer because it identified the parties, the case, and the defendant's current address. Id. at 138; see also Custom-Crete, Inc. v. K-Bar Servs., Inc., 82 S.W.3d 655, 658 (Tex. App.-San Antonio 2002, no pet.) (letter addressed to and filed with clerk that included cause number, party's name and address and denied liability constituted "answer"); Terehkov v. Cruz, 648 S.W.2d 441, 442-43 (Tex.App.-San Antonio 1983, no writ) (signed letters to clerk that included defendant's address, acknowledged receipt of citation, and averred that defendant was not liable for plaintiff's injuries constituted "answer"). Although Narvaez's signed return included the names of the parties and the trial court cause number, it included no statement that could be construed as any type of response to the pleadings. In other words, even if the envelope had included his address and had been retained, it would have added nothing, because the document that Narvaez filed with the court was not a letter, did not include Narvaez's current...