I respectfully dissent. The original pleading on which this case is based alleged that Abraham Riley, Jr., Relator, is the natural father of the said child, Keisha Riley, a female born November 8, 1977. The natural mother of Keisha was Cheryl Traylor. Cheryl Traylor, it was alleged, was deliberately shot and killed by Abraham Riley, Jr., on or about October 30, 1978. The original petition was verified.
The Relator's singular point is that he does not have the status of "parent" in relationship to the child, Keisha, and thus the child support order is not enforceable by contempt and incarceration for contempt. At the very threshold we are met with the basic concept that this is a collateral attack on a judgment of contempt. Relief is available only if the judgment of contempt is void. See Ex Parte Butler, 523 S.W.2d 309 (Tex.Civ.App.-Houston [1st Dist.] 1975, no writ);Ex Parte Cox, 479 S.W.2d 110 (Tex.Civ.App.-Houston [1st Dist.] 1972, no writ). For the collateral attack to be successful the order must be absolutely void and not merely voidable. Ex ParteSturdivant, 544 S.W.2d 512 (Tex.Civ.App.-Texarkana 1976, no writ);Ex Parte Filemyr, 509 S.W.2d 731 (Tex.Civ.App.-Austin 1974, no writ). The fact that a judgment may be erroneous does not render it void. Ex Parte Lowery, 518 S.W.2d 897 (Tex.Civ.App.-Beaumont 1975 Ex Parte Williams,469 S.W.2d 449 (Tex.Civ.App.-Beaumont 1971, no writ). It must be void on its face. Ex Parte Henderson, 512 S.W.2d 37 (Tex.Civ.App.-El Paso 1974, no writ).
At oral submission Relator, through counsel, conceded that the order of commitment and the judgment of contempt were valid and were not the object of his attack. His frontal attack is solely against the judgment or decree of June 25, 1981, affecting the parent-child relationship. From the record before us, the trial court had jurisdiction of Victoria Traylor, who was the maternal grandmother of Keisha; of Relator, who appeared in person for all purposes and by attorney of record and announced ready for trial; of Keisha, the child, and of the subject matter. The trial court, after making a careful examination of the pleadings and hearing the evidence, found that it had jurisdiction of the cause and of all the parties to it. The court specifically found that Keisha was the subject of the suit. The decree appointed Victoria Traylor managing conservator of the child and also decreed that Abraham Riley, Jr., was appointed possessory conservator of the child and provided that the possessory conservator would have the child two weekends of each month, plus every Christmas and every Father's Day and for a period of two weeks during the summer school vacations. The decree specifically provided that the possessory conservator would have the following rights, privileges, duties and powers during possession:
"[T]he duty of care, control, protection, and reasonable discipline of the child;
"[T]he duty to provide the child with clothing, food, and shelter; and,
"[T]he power to consent to medical and surgical treatment during an emergency involving an immediate danger to the health and safety of the child."
It was then decreed that Relator would pay "child support in the amount of $100.00 per month." Abraham Riley, Jr., approved the decree both as to form and content. After this decree of June, 1981, Riley moved to *Page 20 be appointed the actual managing conservator of the child.
It should be borne in mind that the Relator makes no attack and concedes the validity of the Decree of Contempt dated June 18, 1984. The June, 1984, Decree of Contempt finds and recites that Abraham Riley, Jr., stands charged with contempt in failing and refusing to comply with the terms of the support order wherein the court ordered him to pay child supportfor the maintenance of his minor child.
The Decree of Contempt was based on a Motion for Notice to Show Cause, wherein it was recited that the Court had entered an order ordering Riley to pay support for his child at the rate of $100.00 per month, being a valid and subsisting order.
The Decree in the Suit Affecting the Parent-Child Relationship — that is what the judge was determining, a parent-child relationship — of June 25, 1981, was not void; it is certainly not void on its face. The Decree of Contempt of June 18, 1984, ordering him to pay child support for his minor child, is not void and certainly not void on its face. The same is true of the order revoking probation and the order of attachment and commitment.
Under this record, habeas corpus, being a collateral attack, will not lie nor prevail. Relator places reliance on Matav. Moreno, 601 S.W.2d 58 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ). Mata, supra, was a case of an appeal from an order dismissing a motion to increase child support. It was not a habeas corpus proceeding.Mata, supra, was a direct attack with a full, evidentiary record. It was not a collateral attack. The background in Mata, supra, was that one party had sued the other for a divorce alleging a common-law marriage and that a child was born of that common-law marriage. During the hearing on the merits the parties announced to the trial court that it was agreed that no common-law marriage existed between the parties and, moreover, the alleged father had affirmatively denied that he was the father of the child. He was willing to "`buy his peace' and pay the sum of $115 per month in support". Our case is meaningfully and distinguishably different in that Abraham Riley, Jr., has, in the record before us, affirmed that he is the father of Keisha. In fact, he insists that he wants to be the managing conservator. Furthermore, his trial pleadings below state:
"I.
"The Cross-Petitioner herein is Abraham Riley, who is the natural father of the child made the basis of this suit." (Emphasis added)
In Paragraph V he pleads:
"The natural mother of Keisha Riley was Cheryl Traylor, now deceased."
This completely demolishes the basis and undergirding foundation of this Court's opinion.
There is no general denial in his pleadings nor does he specifically deny the allegation in Victoria Traylor's pleadings that he "deliberately shot and killed" Cheryl Traylor, the mother. Further, Riley affirmatively requests the trial court to make proper orders for the support of Keisha. I would hold, under this record, that Riley's own pleadings — being his trial pleadings — are an admission that he is the parent of Keisha and are certainly a valid basis for the implied findings by the Court that Riley is the parent of Keisha, as found in the decree of June 25, 1981. From this record, it is glaringly clear and overwhelmingly demonstrated that Abraham Riley, Jr., had taken the position from the very first that he is the parent of Keisha. He raised no issue of paternity at the contempt hearing or at the hearing on the motion to revoke probation. Only after the door of the Jefferson County Jail slammed shut, did he attempt to raise the issue of his status as parent. He has attempted to do so by habeas corpus proceedings — being a collateral attack. He had the burden of showing that the trial court's actions were totally void, not voidable. He has failed to do so.See and compare Ex Parte Thetford, 369 S.W.2d 924 (Tex. 1963); Ex Parte Davis, 161 Tex. 561, 344 S.W.2d 153 (1961). *Page 21
In this appeal, the trial judge had the pleadings of the parties before him and made an implied finding that a parent-child relationship existed between Abraham Riley, Jr., and Keisha Riley by the style and heading of the original decree. TEX. Family Code sec. 11.01(4) (Vernon 1975) in part, reads:
TEX. Family Code sec. 11.01(5) (Vernon 1975) reads:"`Parent-child relationship' means the rights, privileges, duties and powers existing between a parent and child as provided by Section 12.04 of this code."
TEX. Family Code sec. 12.04 (Vernon Pamph.Supp. 1985) provides, in part:"`Suit affecting the parent-child relationship' means a suit brought under this subtitle in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent-child relationship is sought."
"Except as otherwise provided by judicial order or by an affidavit of relinquishment of parental rights executed under Section 15.03 of this code, the parent of a child has the following rights, privileges, duties and powers:
"(1) the right to have physical possession of the child and to establish its legal domicile;
"(2) the duty of care, control, protection, moral and religious training, and reasonable discipline of the child;
"(3) the duty to support the child, including providing the child with clothing, food, shelter, medical care, and education;
. . . .
"(10) any other right, privilege, duty, or power existing between a parent and child by virtue of law."
The nature of the original proceedings and the pleadings of the parties and the decree affecting the parent-child relationship compel me to the conclusion that the trial judge, when viewing the instruments from the four corners, made an express and, certainly, an implied finding that Abraham Riley, Jr., was the parent of Keisha Riley. From the inception of this proceeding, on December 12, 1978, up until the filing of the Application for Writ of Habeas Corpus on February 20, 1985, the consistent posture of Abraham Riley, Jr., has been that he is the parent of Keisha.
At the time the original petition was filed by Victoria Traylor, who was the maternal grandmother, the natural mother of Keisha, Cheryl Traylor, was deceased. Hence, Victoria could not have been a parent, but it was a suit affecting a parent-child relationship. Thus there was an implied finding that the suit affecting the parent-child relationship was a suit affecting the relationship between Abraham Riley, Jr., as the natural father and parent, and the child, Keisha. Further, it is interesting and important to note that the trial court, in the decree of June 25, 1981, carefully provided that the managing conservator, Victoria, "shall have all the rights, privileges, duties, and powers of a parent, to theexclusion of the other parent, subject to the rights, privileges, duties, and powers granted to any possessory conservator named in this decree." (Emphasis added) The other parent was Riley, this being an express finding by the court.
Since Cheryl was long since deceased and since Victoria was the maternal grandmother, in order to protect her rights, the Court made Victoria's rights superior to the other parent who had to be Abraham Riley, Jr., who paid a large number of child support payments.
I definitely find an express, as well as an implied, finding in that decree that Abraham Riley, Jr., is the parent of Keisha Riley, a female, born November 8, 1977.
Recently, there has been a good deal of publicity on an organization with the acronym "M.A.D.D." (Mothers Against Drunk Drivers). Said in all judicial good humor, if the Court consistently follows the technical reasoning involved in ExParte Forrest E. Seymour, 688 S.W.2d 139 (Tex.App. — Beaumont 1985) No. 09-84-383 CV, January 31, 1985, and ExParte Abraham Riley, Jr., there may yet arise another organization *Page 22 with the same acronym "M.A.D.D." but standing for "Mothers Against Delinquent Dads".
I would dismiss the Application for Writ of Habeas Corpus.