Motion for Rehearing Overruled and Supplemental Opinion filed March 6, 2007.
In The
Fourteenth Court of Appeals
____________
NO. 14-05-00488-CV
NO. 14-05-00489-CV
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MICHAEL SKADDEN, Appellant
V.
ANA MARIA TARQUIS ALFONSO, Appellee
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause Nos. 99-19105 & 99-19105A
S U P P L E M E N T A L O P I N I O N
On original submission, this court determined that the trial court erred in dismissing appellant Michael Skadden=s enforcement actions against his ex-wife Ana Maria Tarquis Alfonso (ATarquis@) because, after the time expired for filing a motion for new trial and direct appeal, a restricted appeal or a bill of review was the only available procedural means for Tarquis to attack the decree based on an alleged failure to effect valid service of process on her. This court also presumed for the sake of argument there was no other impediment to affirming the trial court=s dismissal orders based on its alleged lack of subject-matter jurisdiction over child-custody issues in the underlying divorce proceeding. Nonetheless, this court still concluded it could not affirm on this basis, in part because the record before the trial court from the underlying divorce action did not negate the existence of facts essential to the trial court=s subject-matter jurisdiction over child-custody issues. We based this conclusion on the absence of a reporter=s record from the 1999 trial of the underlying divorce action. Therefore, we reversed the trial court=s orders dismissing the enforcement actions and remanded for further proceedings.
After issuance of the original opinion, the court received a supplemental reporter=s record from the underlying divorce action. Tarquis now seeks to supplement the record in these appeals and, in her motion for rehearing, argues that the record before the trial court from the underlying divorce action negates the existence of facts essential to the trial court=s subject-matter jurisdiction over child-custody issues. The trial court did not dismiss this suit based on Tarquis=s subject-matter jurisdiction argument; however, before dismissing the enforcement actions, the trial court reviewed and took judicial notice of the entire file from the underlying divorce action. Because we do not have that file in our appellate record, the recently filed supplemental reporter=s record does not afford an opportunity for this court to determine whether the entire record before the trial court affirmatively negates the existence of facts essential to subject-matter jurisdiction. Therefore, we conclude that the supplemental reporter=s record is not relevant to any issue before this court. Accordingly, supplementation of the record would serve no purpose. We overrule Tarquis=s motion for rehearing.
I. Summary of Relevant Facts[1]
In his 1999 divorce petition, Skadden sought a decree of divorce, property division, and an initial child-custody determination as to the only child of the marriage, a son. At trial,[2] on December 13, 1999, Skadden appeared along with counsel. Tarquis did not appear in person or through counsel. After receiving evidence, the presiding judge of the trial court signed a divorce decree (hereinafter ATexas Decree@). The Texas Decree adjudicated property and child-custody issues, and stated the following:
(1) Tarquis had adequate notice of the divorce proceedings, and due process of law had been satisfied.
(2) Tarquis was wholly in default.
(3) The trial court, after receiving evidence, found that it had jurisdiction of this case. All prerequisites to the exercise of its jurisdiction were duly satisfied.
(4) Texas is the child=s home state.
No party timely filed a post-judgment motion, regular appeal, restricted appeal, or bill of review regarding this final divorce decree.
More than four years after the trial court rendered the Texas Decree, Skadden filed a petition for interference with possessory rights and a motion for enforcement of the Texas Decree, which provides that both Skadden and Tarquis are joint managing conservators of their son. On the same day, Skadden also filed an application for writ of habeas corpus. The habeas corpus action has a separate cause number from the proceeding containing the petition for interference with possessory rights and the motion for enforcement. In this supplemental opinion, we refer to both of these enforcement cases collectively as the AEnforcement Actions.@
In response to the Enforcement Actions, Tarquis filed several motions, asserting, among other things, the following:
! When Tarquis filed the motions and when the trial court rendered the Texas Decree, the trial court lacked subject-matter jurisdiction over child-custody issues under Chapter 152 of the Texas Family Code.
! The Texas Decree is void because Tarquis was not validly served with process before the rendition of the Texas Decree.
Tarquis=s motions were set for hearing on December 27, 2004. Several days before that hearing, the trial court faxed a handwritten letter to counsel,[3] which the trial court read during the hearing. Tarquis=s counsel argued the trial court need go no further than Skadden=s divorce petition to conclude that it lacked subject-matter jurisdiction to make an initial child-custody determination under section 152.201 of the Texas Family Code. The trial court stated that it was relying on the lack of valid service of process on Tarquis and then took judicial notice of everything in its file in the underlying divorce case. The trial court determined that there had been no valid service of process in the divorce proceeding, and consequently, the trial court concluded the Enforcement Actions failed because the trial court did not have personal jurisdiction when the Texas Decree was rendered. After adding the notation A12/27/04 (per hearing)@ to the top of the letter faxed to counsel the previous week, the trial court filed the document with the papers of the court. At that time, this was the only writing reflecting the trial court=s ruling.
A few weeks later, on January 14, 2005, the trial court signed an order dismissing with prejudice Skadden=s motion for enforcement and petition for interference with possessory rights. The dismissal was based on the trial court=s finding that Tarquis had not been served with process in the underlying divorce action in compliance with the Texas Rules of Civil Procedure. On the same day, the trial court signed an order dismissing with prejudice Skadden=s application for a writ of habeas corpus.[4] In its findings of fact and conclusions of law,[5] the trial court confirmed that it had dismissed the Enforcement Actions based on its finding that Tarquis had not been validly served with process. The trial court indicated that dismissal was not based on Tarquis=s argument that the trial court lacked subject-matter jurisdiction to make an initial child-custody determination.
On original submission, we held the trial court erred in dismissing the Enforcement Actions because, after the time expired for filing a motion for new trial and direct appeal, a restricted appeal or a bill of review were the only available procedural means for Tarquis to attack the Texas Decree based on an alleged failure to effect valid service of process on her. This court presumed for the sake of argument there was no other impediment to affirming the trial court=s dismissal orders based on its alleged lack of subject-matter jurisdiction over child-custody issues in the underlying divorce proceeding. Still, we concluded we could not affirm on this basis, in part because the record before the trial court from the underlying divorce action did not negate the existence of facts essential to the trial court=s subject-matter jurisdiction over child-custody issues. We based this conclusion on the absence of a reporter=s record from the trial of the underlying divorce action. In his appellate brief, Skadden indicated that the court reporter had destroyed her notes from the underlying trial before any party had requested that she transcribe them. See Tex. Gov=t Code Ann. ' 52.046(a)(4) (Vernon 2005) (requiring court reporters to preserve their notes for only three years from the date on which they were taken). Tarquis did not contradict Skadden=s factual assertions in this regard, nor did she attempt to supplement the record with the record from the 1999 trial in any respect at any time prior to this court=s issuance of its opinion.
After this court issued its opinion, reversing the trial court=s orders dismissing the Enforcement Actions and remanding for further proceedings, Tarquis, apparently for the first time, undertook to determine the status of the court reporter=s notes from the 1999 divorce proceeding. Her counsel contacted the court reporter in the underlying divorce trial, who is also the current official court reporter for the trial court. Tarquis=s counsel was informed that the court reporter had not destroyed her notes from the divorce trial.[6] Even though this reporter=s record was not before the trial court when it rendered the orders from which Skadden appealed in this case, Tarquis=s counsel, in an attempt to show a lack of subject-matter jurisdiction in this court, requested the court reporter to transcribe these notes.
A week before Tarquis filed her motion for rehearing,[7] and more than a month after this court issued its opinion and judgment, the court reporter for the trial court filed in this court the reporter=s record from the 1999 divorce trialCor at least some of it. This reporter=s record (hereinafter ASupplemental Reporter=s Record@) did not contain the twelve exhibits that were admitted into evidence at the trial. When Tarquis filed a motion to supplement the record with this reporter=s record, Skadden filed a motion to strike this supplemental record. We consider the motion to supplement and the motion to strike in conjunction with Tarquis=s motion for rehearing, in which she argues that the Supplemental Reporter=s Record negates the trial court=s subject-matter jurisdiction over child-custody issues and thus, if permitted to be filed, would provide grounds for this court to reverse course, grant rehearing, withdraw the opinion on original submission, and issue a new opinion affirming the trial court=s dismissal of the Enforcement Actions.
II. Issue and Analysis
In urging the court to rehear the case, Tarquis asserts a single issue:
The recently discovered reporter=s record of the December 13, 1999 default judgment [sic] negates the existence of facts essential to subject matter jurisdiction; the trial court lacked subject matter jurisdiction over [the child.]
Thus, the threshold inquiry is whether this court should exercise its discretion to allow the record to be supplemented after this court has issued its opinion and judgment.
Under Rule 34.6(d), A[i]f anything relevant is omitted from the reporter=s record, the trial court, the appellate court, or any party may by letter direct the official court reporter to prepare, certify, and file in the appellate court a supplemental reporter=s record containing the omitted items.@ Tex. R. App. P. 34.6(d). Relying on this rule, Tarquis asserts this court should allow the Supplemental Reporter=s Record because it is relevant in that it allegedly shows the trial court lacked subject-matter jurisdiction over the child-custody provisions of the Texas Decree (hereinafter ACustody Provisions@). Tarquis concedes that it is quite unusual to supplement the appellate record after the appellate court has issued its opinion and judgment. She is correct.
Although appellate courts strive to decide cases on the merits rather than on procedural technicalities, supplementing the record after a case is decided (especially when the parties had ample opportunity to correct the omission prior to decision) and reconsidering the prior decision does not serve judicial economy and does not violate this general policy. See Worthy v. Collagen Corp., 967 S.W.2d 360, 366 (Tex. 1998); see also Texas First Nat=l Bank v. Ng, 167 S.W.3d 842, 866 (Tex. App.CHouston [14th Dist.] 2005, pet. granted, judgm=t vacated w.r.m.) (refusing to consider supplemental record filed more than a month after court=s opinion and judgment). Therefore, we have substantial discretion not to consider supplements to the appellate record that are filed after issuance of the opinion and rendition of the judgment. See Worthy, 967 S.W.2d at 366; Texas First Nat=l Bank, 167 S.W.3d at 866.
During the briefing stage of this appeal, Tarquis did not challenge Skadden=s factual assertion concerning the status of the court reporter=s notes from the 1999 divorce trial. Tarquis has not explained why she did not attempt earlier to determine whether the court reporter=s notes existed. Nor has Tarquis explained why she could not have taken the same action on or before original submission that she took after this court issued its opinion. The extraordinary and unexplained delay are circumstances that do not weigh in favor of allowing supplementation of the record at this late date.
But even if Tarquis were allowed to supplement and even if she could show that the trial court record from the underlying divorce proceeding affirmatively negated the existence of facts essential to the trial court=s subject-matter jurisdiction under Chapter 152 of the Texas Family Code, that lack of subject-matter jurisdiction would apply only to the Custody Provisions. See Tex. Fam. Code Ann. '' 152.201(a), 152.204 (Vernon 2002). Such a showing would not void the entire underlying divorce proceeding, and the Texas Decree still would be valid and binding as between Skadden and Tarquis as to all issues other than child custody.
Furthermore, if Tarquis is correct, then it might mean that Skadden could not enforce the Custody Provisions because the trial court in the underlying divorce proceeding lacked subject-matter jurisdiction over child-custody issues, but that would not end the court=s inquiry. Though Skadden, in the Enforcement Actions, sought only to enforce the Custody Provisions, the trial court had subject-matter jurisdiction to enforce decrees such as the Texas Decree, and it is not clear that it would be a determination of subject-matter jurisdiction, as opposed to a decision on the merits, if the trial court were to deny enforcement of the Custody Provisions due to a lack of jurisdiction as to these matters in the underlying divorce proceeding.
Collateral Attack on a Final Order in a Prior Proceeding For the First Time on Appeal Based on the Supplemental Reporter=s Record, Tarquis asserts on rehearing a collateral attack on the prior, final Texas Decree. Under precedent from the Supreme Court of Texas, this challenge is a collateral attack on a final decree from a prior proceeding. See Reiss v. Reiss, 118 S.W.3d 439, 440B43 (Tex. 2003) (holding that, in action to enforce final divorce decree, ex-spouse=s attempt to avoid the effect of prior, final decree by arguing decree was void constituted collateral attack on the decree). In the Enforcement Actions in the trial court, Tarquis did assert a collateral attack as to the Custody Provisions. However, this collateral attack was based on Skadden=s live petition (including the affidavit contained therein) in the divorce proceeding, not on a reporter=s record from the divorce trial. On rehearing in this court, Tarquis asserts for the first time a collateral attack on the Custody Provisions based on the Supplemental Reporter=s Record.[8] The parties have not cited, and this court has not found, any Texas case in which an appellate court sustained a collateral attack asserted for the first time on appeal.
The Absence of Record Items from the Underlying Divorce Proceeding
In any event, we presume, without deciding, the following:
(1) A determination that Skadden could not enforce the Custody Provisions because the trial court lacked subject-matter jurisdiction over child-custody matters in the underlying divorce proceeding would be a determination that the trial court lacks subject-matter jurisdiction in the Enforcement Actions.
(2) This court can sustain a collateral attack on a part of the trial court=s prior, final decree for the first time on appeal.
Nonetheless, as we noted on original submission, a collateral attack such as that asserted by Tarquis on rehearing requires consideration of the evidence and proceedings from the divorce trial and the trial court=s record at the time it rendered the Texas Decree. See White v. White, 179 S.W.2d 503, 506 (Tex. 1944); Skadden v. Alfonso, No. 14-05-00488-CV, 2006 WL 3072040, at *10B11 (Tex. App.CHouston [14th Dist.] Oct. 31, 2006, no pet. h.); Etzel v. U.S. Dep=t of Air Force, 620 S.W.2d 853, 856 (Tex. Civ. App.CHouston [14th Dist.] 1981, writ ref=d n.r.e.). As noted in our prior opinion in this case, the trial court reviewed its entire file from the underlying divorce proceeding and took judicial notice of this file. Although it did not consider the evidence presented during the divorce trial in ruling on Tarquis=s motions, the trial court did consider the clerk=s record that was before it when it rendered the Texas Decree. See Skadden, 2006 WL 3072040, at *3B4. However, because the trial court simply reviewed and took judicial notice of this record in rejecting Tarquis=s collateral attack on the Custody Provisions, we do not have the entire clerk=s record from the underlying proceeding in our appellate record. Even indulging the above presumptions and even if we reviewed the Supplemental Reporter=s Record, we still would be unable to rule on the collateral attack Tarquis asserts on rehearing.[9] See White, 179 S.W.2d at 506; Skadden, 2006 WL 3072040, at *10B11.
We conclude the Supplemental Reporter=s Record is not relevant to any issue we can decide in this appeal. See Tex. R. App. P. 34.6 (d). Therefore, we decline to consider the Supplemental Reporter=s Record. See Zoya Enters. v. Sampri Invests., L.L.C., No. 14-04-01158-CV, 2006 WL 1389582, at *3B4 (Tex. App.CHouston [14th Dist.] May 23, 2006, no pet.) (refusing to consider post-submission supplemental record) (mem. op.); Texas First Nat=l Bank, 167 S.W.3d at 865B66 (refusing to consider supplemental record filed more than a month after this court=s opinion and judgment on appeal). Because Tarquis bases her only motion-for-rehearing argument on the Supplemental Reporter=s Record, we overrule Tarquis=s motion for rehearing.[10]
Nothing in the opinion on original submission or this supplemental opinion prevents the trial court from considering, on remand, Tarquis=s collateral attack on the Custody Provisions based on the legal standard set forth in these opinions.
/s/ Kem Thompson Frost
Justice
Motion for Rehearing Overruled and Supplemental Opinion filed March 6, 2007.
Panel consists of Justices Hudson, Frost, and Seymore.
[1] The factual background of this case is set forth in detail in our original opinion in this appeal. See Skadden v. Alfonso, No. 14-05-00488-CV, 2006 WL 3072040, at *1B6 (Tex. App.CHouston [14th Dist.] Oct. 31, 2006, no pet. h.). In this supplemental opinion, we address only the factual background relevant to the issues at hand.
[2] The associate judge who presided over the December 1999 trial later became the presiding judge of the trial court and rendered the dismissal orders that are the subject of this appeal.
[3] Our original opinion contains the full text of this letter. See Skadden, 2006 WL 3072040, at *3.
[4] At a prior hearing, Tarquis=s trial counsel stated that she had no knowledge there were two different cause numbers, and Tarquis never filed anything in the habeas action. Nonetheless, the trial court signed an order in the habeas action granting a motion Tarquis had filed in the other case. The trial court apparently treated all of Tarquis=s filings and arguments as having been asserted in both cases, and, for the purposes of this appeal, we presume likewise.
[5] After Skadden initiated these appeals from both dismissal orders, this court abated the appeals so that the trial court could file findings of fact and conclusions of law.
[6] In response to Tarquis=s motion to supplement, Skadden asserts this court reporter told him repeatedly that the notes from the divorce trial no longer existed.
[7] This court granted Tarquis an extension of time to file her motion for rehearing.
[8] There is nothing in the record to indicate Tarquis could not have obtained the Supplemental Reporter=s Record before this case was submitted on appeal or before the trial court ruled on Tarquis=s motions to dismiss. In her motion to supplement the appellate record and subsequent filings, Tarquis has indicated that her new lead appellate counsel promptly determined that the court reporter had not destroyed her notes and requested that they be transcribed after Tarquis first inquired into this matter following the issuance of this court=s opinion on original submission. If Tarquis had made this inquiry before the trial court=s ruling on her motions to dismiss, there is every reason to believe the trial court could have had the benefit of considering the collateral attack Tarquis now asserts.
[9] Tarquis cites various cases for the proposition that subject-matter jurisdiction is fundamental and lack thereof can be raised for the first time on appeal. However, all of the cases Tarquis has cited involve a direct appeal from the judgment challenged for lack of subject-matter jurisdiction. The case before us involves an appeal from an order sustaining one attack by Tarquis on the Texas Decree (assertion of an alleged failure to effect valid service of process) which Tarquis now argues should be affirmed based on a collateral attack asserting a different argument (the trial court=s alleged lack of subject-matter jurisdiction over child-custody matters in the underlying divorce proceeding based on the Supplemental Reporter=s Record). Therefore, the cases Tarquis cites are not on point.
[10] Skadden conditioned his December 21, 2006 motion to supplement on this court=s granting of Tarquis=s motion to supplement. Because the latter event did not occur, we need not address this motion.