ACCEPTED
12-14-00217-CV
TWELFTH COURT OF APPEALS
TYLER, TEXAS
12/30/2014 10:18:21 AM
CATHY LUSK
CLERK
NO. 12-14-00217-CV
FILED IN
12th COURT OF APPEALS
TYLER, TEXAS
IN THE TWELFTH COURT OF APPEALS12/30/2014 10:18:21 AM
CATHY S. LUSK
AT TYLER, TEXAS Clerk
BARBARA GAIL HARRIS,
Appellant,
v.
IN RE: FAMILY TRUST CREATED UNDER THE ESTATE
OF HAYDEN R. MAYFIELD, DECEASED
Nominal Appellee.
APPELLANT’S MOTION FOR REHEARING
TO THE COURT OF APPEALS:
Appellant, Barbara Gail Harris, respectfully files this motion for rehearing,
concerning the opinion of the Honorable Court issued December 17, 2014, in order
to correct errors of law that cause the rendition of improper judgment.
Issues Presented for Review
1. A judgment that is never dormant is enforceable. Regardless of the date
it is rendered, and by special statute, the involved judgment for child
support arrearage is never dormant. It is reversible error to rule that the
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judgment is not collectible because of expired lien. And the judgment is
collectible pursuant to the Texas Probate Code and its successor statute,
the Texas Estates Code.
2. When appellees may never impermissibly collaterally attack the
judgment for child support arrearage, this Honorable Court reversibly
affirms an order granting summary judgment that said judgment is not
enforceable.
3. The district court has continuous jurisdiction and lien to enforce the
judgment for child support arrearage until it is fully satisfied. When
appellees invoke district court jurisdiction, the county court and this
Honorable Court must give judicial deference to the jurisdiction of the
county court.
Argument
Appellant’s judgment for child support arrearage is never
dormant, and it is enforceable.
Subject to the question of all courts’ jurisdiction herein, which appellant
does not waive, this Court fails to enforce appellant’s 1990 judgment for child
support arrearage pursuant to the express terms of Texas Civil Practice and
Remedies Code §34.001(c), amended in 2009. It is a non-dormancy special statute
for child support judgments that prevails over appellees’ cited Section 31(a)(b)
effective in 1997, the predecessor to Texas Family Code § 157.318 . Citing
Section 31(a)(b) , and ignoring the non-dormancy statute, this Court wrongfully
holds that appellant’s child support lien expires and her judgment is not
enforceable. Section 31(a)(b) reads:
The change in law made by this act applies only to a child support lien
notice or suit filed on or after the effective date of this Act. A child
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support lien notice or suit filed after the effective date of this Act is
covered by the law in effect on the date notice of suit is filed, and
the former law is continued in effect for that purpose.
Texas Civil Practice and Remedies Code Section 34.001(c) holds that
appellant’s 1990 judgment for child support arrearage never becomes dormant,
regardless of the date on which the judgment is rendered. Holmes v. Williams, 355
S. W. 3d 215, 220-221 (Tex. App.—Houston [1st Dist.] 2011, no pet.) and In the
Interest of D.W.G., a Child, 391 S. W. 3d 154, 160-162 (Tex. App.—San Antonio,
2012, no pet.). A dormant judgment is one which has not been satisfied nor
extinguished by lapse of time, but which has remained so long unexecuted that
execution cannot now be issued upon it without first reviving the judgment. §
34.001(b) (West Supp. 2013). In Re: Buster Fitzgerald, Relator, 429 S. W. 3d
886, 895 (Tex. App.—Tyler 2014, orig. proceeding). Since appellant’s 1990
judgment is always effective, i.e., never dormant, it is enforceable. The child
support judgment lien attaches to involved property of the judgment debtor. Texas
Family Code § 157.317. Thus, there is irreconcilable conflict between the above
cited statutes when this Court writes “ Because the judgment lien has expired,
Harris had no need to discover potential assets to levy on.” Section 34.001(c) is a
special statute that makes appellant’s child support judgment always enforceable,
and it prevails over any contention child support judgments are not collectible.
King v. Board of Trustees, 555 S. W. 2d 925, 928 (Tex. Civ. App.—El Paso 1977,
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writ ref’d n.r.e.) and Font v. Carr, 867 S. W. 2d 873, 881 (Tex. App.—Houston
[1st Dist.] 1993, writ dism’d w.o.j.).
This Court’s opinion conflicts with decisions of other courts of appeal.
Harris’s child support lien is perfected when she abstracts her child support
judgment with the county clerk. Tex. Fam. Code § 157.316(a). In the Matter of
the Marriage of Williams, 998 S. W. 2d 724, 728-730 (Tex. App.—Amarillo 1999,
no pet.), the court construes a 1996 notice of child support lien filed to enforce a
1993 judgment for child support. On August 10, 1999, it writes at page 730:
…the lien is perfected when…filed with the county clerk…Family
Code Section 157.318(a) establishes the duration of the lien to be until
all… child support arrearages, including interest have been paid….
We conclude that the Notice of Child Support Lien was properly filed
and was valid.
In both lower courts, Harris cites Holmes v. Williams, 355 S. W. 3d 215,
220-221 (Tex. App.—Houston [1st Dist.] 2011, no pet.). That court specifically
cites Texas Family Code Section 157.318(a) that holds a child support lien is
effective until all child support arrearages, including interest, have been paid, and
says Texas courts have continuing jurisdiction to hear foreclosure of lien actions,
or suits to determine lien arrearages. This ruling is confirmed by In the Interest of
K.R.M., No. 11-11-00313-CV, 2012 WL 1143800, at page 3, (Tex. App.—
Eastland, April 5, 2012, no pet.). Harris’s child support lien is effective.
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Although Harris presents a non-dormant child support judgment with
effective lien, her judgment also is collectible pursuant to Texas Probate Code §
322(4) and Texas Estate Code §§ 101.001(a) and 101.051(a)(2)(b)(2). These
provisions do not require a non-dormant judgment or a judgment lien to be
enforced. They mandate that the judgment debtor’s will inheritance and trust
assets are subject to payment of Harris’s child support judgment.
Since appellees make an impermissible collateral attack on Harris’s
judgment for child support arrearage, they are not entitled
to summary judgment.
The Court correctly defines an impermissible collateral attack on a judgment
In Re: Buster Fitzgerald, Relator, 429 S. W. 3d 886, 987-988 (Tex. App.—Tyler
2014, orig. proceeding) where it writes:
“A collateral attack on a judgment is an attempt to avoid its binding force in
order to obtain specific relief that the judgment currently impedes. Browning v.
Prostok, 165 S.W.3d 336, 346 (Tex. 2005); Crawford, 88 Tex. at 630. Examples of
a collateral attack include when a party seeking to dissolve a writ of garnishment
assails the underlying judgment. See Stewart v. USA Custom Paint & Body Shop,
Inc., 870 S.W.2d 18, 19-20 (Tex. 1994).
“A voidable judgment is subject to direct attack only; it cannot be
collaterally attacked. See Rivera, 379 S.W.2d at 271 (" A litigant may attack a void
judgment directly or collaterally, but a voidable judgment may only be attacked
directly." ); see also Burlington State Bank, 207 S.W. at 956 (holding that dormant
judgment is voidable and therefore not subject to collateral attack). It is well
established that a voidable judgment is conclusive against whose rights it may
affect until it is either reversed by appeal or vacated on direct attack. See, e.g., Slay
v. Fugitt, 302 S.W.2d 698, 702 (Tex.Civ.App.--Dallas 1957, writ ref'd n.r.e.);
Caplen v. Compton, 5 Tex.Civ.App. 410, 27 S.W. 24, 25 (Galveston 1893, writ
ref'd).”
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Harris’ judgment for child support arrearage is not void. The 307th Family
District Court for Gregg County, that rendered the judgment, had jurisdiction of
the parties or property, jurisdiction of the subject matter, jurisdiction to enter the
particular judgment, and capacity to act. P.N.S. Stores, Inc. v. Rivera, 379 S. W.
3d 267, 272 (Tex. 2012). Therefore, appellees may not bring another suit, a
collateral attack in the county court, to relieve them from collection of Harris’s
district court judgment. In the Matter of the Marriage of Williams, 998 S. W. 2d
724, 727-728 (Tex. App.—Amarillo 1999, no pet.) and In re M.E.M., 09-11-
00657-CV (Tex. App.—Beaumont February 28, 2013, no pet.). Since they cannot
sue in the county court to collaterally attack Harris’s district court judgment,
appellees are not entitled to summary judgment in the county court that, as a matter
of law, said judgment is not collectible. The fact Harris did not raise collateral
attack, in her response to summary judgment, is immaterial to the law that
appellees are not entitled to bring suit and obtain summary judgment in their
collateral attack proceeding. City of Houston v. Clear Creek Basin Auth., 589 S.
W. 2d 671, 678 (Tex. 1979).
Appellant does not waive county court and this Court’s lack of jurisdiction.
Appellees say Harris waives her challenge to the county court, and thereby
this Court’s, jurisdiction when she entitles her jurisdictional challenge as a plea to
the jurisdiction instead of a plea in abatement. In her reply brief, Harris cites BCY
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Water Control Corporation v. Residential Investments, Inc., 170 S. W. 3d 596,
604-605 (Tex. App.—Tyler 2005, pet. denied) that correctly refutes any contention
that Harris waives her jurisdictional challenge by pleading misnomer:
Misnomer of a pleading does not render it ineffective, and the court
will treat the pleading as if it had been properly named. See Tex.R.
Civ. P. 71. We look to the substance of the plea to determine its
nature, not merely at the form of title given to it. See State Bar v.
Heard, 603 S.W.2d 829, 833 (Tex.1980).
Harris’s plea to the jurisdiction and response to motion for summary
judgment both tell the assigned trial judge that, by judicial imperative, the county
court must give judicial deference to the district court. This Court errs when it
does not follow its own and other courts precedent that pleading misnomer waives
Harris’s challenge to the involved courts’ jurisdiction. See also Austin
Neighborhoods Council, Inc. v. Board of Adjustment City of Austin, 644 S. W. 2d
560, 565-566 (Tex. App.—Austin 1982, writ ref’d n.r.e.) that properly construes a
titled plea to the jurisdiction as a plea in abatement.
Appellees individually, and by virtual representation, invoke the district court’s
proper jurisdiction.
The will executor, and trustee of the family trust, has no conflict of interest
with his brother, William Frank Mayfield, the judgment debtor and beneficiary of
testamentary trusts. They both may sue and be sued, and the courts hold that the
executor and trustee virtually represents the judgment debtor. No argument for
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such result is required. Mason v. Mason, 366 S. W. 2d 552, 554-555 (Tex. 1963);
Estate of Harry D. Webb, Jr., Deceased, 266 S. W. 3d 544, 551-552 (Tex. App.—
Fort Worth 2008, pet. denied) and In re Estate of Head, 165 S. W. 3d 897, 901-902
(Tex. App.—Texarkana 2005, no pet.).
The district court has jurisdiction to decide all the trust issues that the
executor raises there and over all proceedings concerning the involved trusts.
Texas Property Code § 115.001(a). Despite a spendthrift clause in a trust, the
district court may order the executor and trustee to pay trust principal and income
to satisfy the child support judgment. Tex. Fam. Code § 154.005(a) and First City
National Bank of Beaumont v. Phelan, 718 S. W. 2d 402-406 (Tex. App.—
Beaumont 1986, writ ref’d n.r.e.). It retains jurisdiction over the parties and
controversy until its judgment for child support arrearage is fully satisfied. Texas
Family Code § 157.269 and Terry v. Terry, No. 12-03-00169-CV (Tex. App.—
Tyler December 31, 2003, no pet.).
A party enters a general appearance when (1) invoking the judgment of the
court on any question other than the court’s jurisdiction (2) recognizing by its acts
that an action is pending, or (3) seeks affirmative action from the court. Exito
Elec. Co. v. Trejo, 142 S. W. 3d 302, 304 (Tex. 2004 per curiam). A general
appearance is entered whenever the defendant invokes the jurisdiction of the court,
in any way, on any question other than the court’s jurisdiction, without being
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compelled to do so by previous orders of the court sustaining the jurisdiction. St.
Louis & San Francisco R.R. Co. v. Hale, 109 Tex. 251, 206 S. W. 75 (1918).
The executor never challenges the jurisdiction of the district court. Instead
he first files objections and motions to quash the notice for his oral deposition and
for protection, thus seeking affirmative action and judgment from and by the
district court on issues other than that court’s jurisdiction. The executor asks the
district court to limit discovery to distributions limited to the debtor, and until
trusts are funded, and to require Harris to pay for copies of provided documents.
He raises trust provisions for district court rulings. The district court orders the
executor’s deposition taken, and this is done pursuant to another notice of oral
deposition filed in the district court. Clearly, the executor and debtor, by virtual
representation, generally appear in the district court. They submit to its
jurisdiction. Lastly, when the executor files his motion to quash the notice for his
oral deposition, the courts specifically hold that he makes a general appearance in
the district court and submits to its jurisdiction. Howe Grain & Mercantile
Company v. Taylor, 147 S. W. 656-657 (Tex. Civ. App.—San Antonio 1912, no
writ).
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Appellant’s reserved issues for rehearing.
Appellant respectfully state the foregoing mandates rehearing and dismissal
of this appeal for lack of the county court and this courts’ jurisdiction. However,
Harris reserves her right to discovery for enforcement of her collectible judgment
for child support arrearage and for award of attorney fees that are presented in
Issues 4 and 5 of the Brief for Appellant.
PRAYER FOR RELIEF
Harris respectfully prays for this Honorable Court to grant her motion for
rehearing, that the order granting declaring summary judgment appealed from
ruled void, and this appeal dismissed for lack of jurisdiction of the County Court at
Law 2 for Gregg County, Texas. Alternatively, she prays that said order be
reversed, and this cause be remanded, for Harris to collect her judgment for child
support arrearage, all interest thereon, with reasonable and necessary attorney fees
set out herein at the trial and appellate court levels, said attorney fees assessed
against the debtor, the executor and Raymond James, and for all costs of court.
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Respectfully submitted,
/s/ Frank L. Supercinski
FRANK. L. SUPERCINSKI
SBN: 19516000
P.O. Box 189
Longview, Texas 75606
Telephone: (903) 236-0151
Facsimile: (903) 236-0118
Email: supercinski@sbcglobal.net
ATTORNEY FOR APPELLANT
CERTIFICATE OF SERVICE
I certify that, on the day that the foregoing Appellant’s Motion for Rehearing
is electronically filed with the Twelfth Court of Appeals for Texas, and through the
electronic filing system, a copy of it is served on counsel of record for appellees:
Bradley R. Echols
SBN: 06390450
BOON, SHAVER, ECHOLS, COLEMAN & GOOLSBY, PLLC
1800 W. Loop 281, Suite 303
Longview, Texas 75604
Telephone: (903) 759-2200
Facsimile: (9030 759-3306
Email: bradley.echols@boonlaw.com
/s/ Frank L. Supercinski
FRANK L. SUPERCINSKI
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CERTIFICATE OF WORD COUNT
I certify that the 2482 word count of Appellant’s Motion for Rehearing
complies with the applicable Texas Rules of Appellate Procedure.
/s/ Frank L. Supercinski
FRANK L. SUPERCINSKI
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