Rodgers v. Williamson

• Decision Date: 18 May 1972
• Docket Number: No. 17889,17889
• Citation: Rodgers v. Williamson, 482 S.W.2d 665 (Tex. Ct. App. 1972)
• Parties: Ronald Edward RODGERS, Appellant, v. Lauretta WILLIAMSON and William F. Williamson, Appellees.
• Court: Texas Civil Court of Appeals

Page 665

482 S.W.2d 665

Ronald Edward RODGERS, Appellant, v.Lauretta WILLIAMSON and William F. Williamson, Appellees.

No. 17889.

Court of Civil Appeals of Texas Dallas.

May 18, 1972.

Rehearing Denied June 15, 1972.

Michael A. Robertson, Grand Prairie, for appellant.

R. Lewis Nicholson, Dallas, for appellees.

CLAUDE WILLIAMS, Justice.

The principal question presented by this appeal is the validity of appellant's collateral attack upon a judgment of adoption rendered by an Illinois court.The Juvenile Court of Dallas County gave full faith and credit to the Illinois decree and denied appellant's prayer for relief.We affirm.

In 1965Ronald Edward Rodgers and his then wife Lauretta Rodgers were divorced in the 99th District Court of Lubbock County, Texas.The decree of divorce awarded custody of the only minor child of the parties, Randall Scott Rodgers, age two years at that time, to his natural mother.

Thereafter Lauretta Rodgers married William F. Williamson and the family moved to Chicago, Illinois.In 1969William F. Williamson and his wife Lauretta filed a petition in the Circuit Court of Cook County, Illinois to adopt Randall Scott Rodgers, then age six.Appellant Rodgers received notice of the petition and went to Chicago and employed an attorney of his own choice to represent him at the hearing.After conferring with appellees and with his own counsel, appellant Rodgers entered into a written stipulation in which he gave his consent to the adoption of the child by Mr. and Mrs. Williamson.The stipulation also provided that Rodgers should have the right of visitation with the minor at specified times.Thereafter the Illinois court entered the decree of adoption in which the court recited that it had jurisdiction of the parties and subject matter and that the father had consented to the adoption in accordance with the Illinois law.The stipulation signed by the father was attached to the decree and made a part thereof.The material part of the decree was as follows:

'IT IS THEREFORE ORDERED, ADJUDGED and DECREED, that from this date, RANDALL SCOTT RODGERS, a minor, shall be to all legal intents and purposes, the child of the Petioners, WILLIAM F. WILLIAMSON and LAURETTA WILLIAMSON, his wife; and for the purposes of inheritance and all other legal incidents and consequences, shall be the same as if he had been born to the petitioners in lawful wedlock.

'IT IS FURTHER ORDERED that the name of the said minor shall be changed to RANDALL SCOTT WILLIAMSON.'

Following the entry of this decree in the Illinois court on August 7, 1969, and until April 15, 1971, the stipulation with reference to visitation rights on the part of appellant was carried out.On April 15, 1971appellant Rodgers filed his original action in the Juvenile Court of Dallas County, Texas in which he recited the Illinois decree of adoption and requested the Juvenile Court of Dallas County to alter and modify the visitation dates which had been previously agreed to and incorporated in the Illinois decree.

In this petition appellant recited that conditions had changed since the Illinois order and that he and appellees, with the boy, now live in close proximity to each other in Texas.

Appellees filed a plea in abatement, answer and cross-action in which they took the position that since the original divorce was granted by the 99th District Court of Lubbock County, Texas, and that by virtue of Article 4639a, Vernon's Tex.Rev.Civ.Stat.Ann., the exclusive jurisdiction to alter visitation privileges was vested in the District Court of Lubbock County, Texas, or alternatively, with the Circuit Court of Cook County, Illinois, the court that rendered the decree of adoption.Appellees also alleged that the Illinois decree of adoption was entitled to full faith and credit by the Texas court and that the court should render a declaratory judgment holding that appellant Rodgers has no legal right or obligation to the minor child.

Thereafter appellant filed his second amended original petition in the juvenile court in which he, in addition to re-urging his previous pleadings, added an alternative ground as a basis for requesting the court to modify the custody award of the child.In this alternative plea appellant charged that the decree of the Illinois court should be disregarded and declared to be of no force and effect because same was wholly void and that said invalidity appears on the face of the judgment itself.Appellant pled that the Illinois decree was void because it was induced and procured by fraud in that his consent to the adoption was obtained upon the representations of appellees and their attorney that appellant would retain his right of visitation with his son.

The court, sitting without a jury, heard the evidence presented and rendered final judgment holding that the Illinois decree granting adoption should be and is given full faith and credit and that Rodgers' motion to change visitation rights should be denied.

At the request of appellantthe trial court made and filed findings of fact and conclusions of law.The court found, inter alia, that Rodgers had executed the consent to the adoption voluntarily and upon the advice of his own attorney and that such consent to adoption was not procured by fraud.The court concluded (1) that the Illinois court had jurisdiction of the parties and subject matter of the petition to adopt the minor; (2) that the decree of adoption is entitled to full faith and credit; (3) that such decree of adoption terminated all parental rights of a natural father; and (4) that agreement for visitation is not enforceable.

While appellant asserts eight points of error in his attack upon the judgment rendered he candidly concedes in his 'Summary of Argument' that: 'There is no question about the events which preceded the Illinois Decree.The sole point at issue is the legal force and affect (sic) of that foreign judgment.'In the same argument he says: 'Appellant hesitates to attack the entire Illinois Decree as void, but he is left no choice in the face of the trial court's refusal to enforce his right of visitation.* * * It seems clear from the cases which will be discussed that the Illinois judgment is void from the beginning, and that Appellant is entitled to an adjudication as to the proper schedule of visitation under the changed circumstances.'

Several of appellant's points are not briefed.From the brief itself we conclude that appellant's real contention is that there is either no evidence, or the evidence is wholly insufficient, to support the trial court's finding that appellant's consent to the adoption in the Illinois court was not procured by fraud.This court, as was the trial court, is confronted with the primary question of the force and effect Texas courts will give to a final decree of a sister state.

Several basic rules of law must be noticed:

(1) Pursuant to Article 4, Section 1, of the Constitution of the United States, a state must give the final judgment of a sister state the same force and effect as it is entitled to in the state in which it is rendered.Barber v. Barber, 323 U.S. 77, 65 S.Ct. 137, 89 L.Ed. 82(1944);Commonwealth of Massachusetts v. Davis, 140 Tex. 398, 168 S.W.2d 216(1942);andCarter v. G & L Tool Company of Utah, Inc., 428 S.W.2d 677(Tex.Civ.App., San Antonio1968).

(2) When a sister state judgment is challenged in Texas, and the attack is collateral as in this case, in order for the attack to be successful the judgment must be void.34 Tex.Jur.2d § 385, p. 408, and cases there cited.

(3) A judgment of a competent court of jurisdiction cannot be collaterally impeached unless the record affirmatively shows the want of jurisdiction of the court rendering the judgment.Williams v. Hays, 77 Tex. 283, 13 S.W. 1029(1890); Holmes v. Buckner, 67 Tex . 107, 2 S.W. 452(1886);Mitchell v. San Antonio Public Service Co., 35 S.W.2d 140(Tex.Com.App.1931);and 34 Tex.Jur.2d § 344, p. 350.

(4) A judgment of a sister state may be attacked collaterally for fraud where the fraud went to the jurisdiction of the court, that is, where it operated to prevent the complaining party from asserting his case.34 Tex.Jur.2d § 387, pp. 411--412;Stumberg, Principles of Conflict of Laws, 3d Ed. p. 114(1963);Drinkard v. Ingram, 21 Tex. 650(1858);Babcock v. Marshall, 21 Tex.Civ.App. 145, 50 S.W. 728(1899);Hare v. Reily, 269 S.W. 473 (Tex.Civ.App., Dallas 1925, affirmed Com.App., 280 S.W. 543(1926);Ogletree v. Crates, 359 S.W.2d 54(Tex.Civ.App., Eastland1962);Marsh v. Millward, 381 S.W.2d 110(Tex.Civ.App., Austin1964, writ ref'd n.r.e.);Cole v. Cunningham, 133 U.S. 107, 10 S.Ct. 269, 33 L.Ed. 538(1889);Freeman on Judgments, 5th Ed., § 1183(1925);and 55 A.L .R.2d 673, 680.

(5) Where fraud in procuring the sister state judgment is alleged, the averments and proof must be clear, specific, and definite tending to establish the fraud.34 Tex.Jur.2d § 388, p. 413.The judgment of the foreign state is entitled to every presumption of its validity.It will be presumed that the judgment is valid and subsisting in the absence of clear and convincing proof to the contrary.34 Tex.Jur.2d § 383, p. 405.

We turn now to the record in this case and review the same in the light of these rules.It is undisputed that the court in Illinois acquired jurisdiction of both the parties and the subject matter of the adoption proceedings.Appell...