In The
Court of Appeals
Ninth District of Texas at Beaumont
__________________
NO. 09-20-00047-CV
__________________
MARK EDWARD ATHANS, Appellant
V.
CHARITY ATHANS, Appellee
__________________________________________________________________
On Appeal from the 284th District Court
Montgomery County, Texas
Trial Cause No. 19-09-13162-CV
__________________________________________________________________
MEMORANDUM OPINION
Appellant Mark Edward Athans (“Mark”) argues that the trial court erred by
sua sponte dismissing his lawsuit to have a marriage declared void because of
bigamy for want of jurisdiction. We affirm the trial court’s judgment.
BACKGROUND
In March 2019, the County Court at Law Number 3 (hereafter referred to as
the “original trial court”) of Montgomery County, Texas, granted Mark’s petition
for divorce against Charity Athans (“Charity”), and in the Final Decree of Divorce,
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the original trial court denied Mark’s request for an annulment of fraud and awarded
Charity certain property and monies. 1 In April 2019, a Montgomery County grand
jury indicted Charity for bigamy, and the indictment alleged that Charity was still
legally married to another man when she married Mark in August 2017. In June
2019, the original trial court entered an Order on Motion for Temporary Orders
Pending Appeal, ordering Mark to pay Charity’s attorney’s fees as well as spousal
support. In July 2019, Charity filed a First Amended Petition for Enforcement of
Property Division and Enforcement of Temporary Orders Pending Appeal.
In September 2019, Mark filed an Original Petition and Application for
Temporary Restraining Order and Temporary Injunction against Charity, alleging
that the current trial court had jurisdiction under section 6.307 of the Texas Family
Code to declare his marriage with Charity void because (1) the purported marriage
was contracted in Texas, and (2) both he and Charity are domiciled in Texas. See
Tex. Fam. Code Ann. § 6.307. According to Mark’s petition, when he and Charity
1We note that this Court has dealt with the Athans’s divorce on two prior
occasions, and neither case is relevant to the outcome in this appeal. In July 2019,
this Court granted Mark Athans’s motion to dismiss his appeal from the County
Court at Law No. 3. See Athans v. Athans, No. 09-19-00152-CV, 2019 WL 3330591,
at *1 (Tex. App.—Beaumont July 25, 2019, no pet.). In April 2020, this Court
conditionally granted Mark’s petition seeking mandamus relief, in which Mark
requested that the trial court vacate its order granting Charity Athans’s motion to
enforce the property division provisions and holding Mark in contempt. See In re
Athans, No. 09-20-00074-CV, 2020 WL 1770903, at *1, *3 (Tex. App.—Beaumont
Apr. 9, 2020, orig. proceeding).
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purportedly married on August 7, 2017, Charity was still legally married to at least
two other men, resulting in their marriage being void under section 6.202 of the
Texas Family Code. See id. § 6.202. Mark alleged that he did not know Charity was
married to the other men when he filed for divorce in 2018 or when the original trial
court entered a Final Decree of Divorce in 2019. Mark also alleged that the Final
Decree of Divorce and the June 2019 Reformed Order on Motion for Temporary
Orders Pending Appeal are void and must be set aside because his purported
marriage to Charity is void under section 6.202 of the Family Code and has no legal
effect in Texas. See id. According to Mark, since his marriage is void, the original
trial court did not have jurisdiction to grant him a divorce or divide the community
estate.
On January 14, 2020, Charity pleaded guilty to bigamy and was placed on
deferred adjudication community supervision for a period of four years and assessed
a $500 fine. On January 29, 2020, the current trial court entered an Amended Show
Cause Order on the Court’s Motion to Dismiss for Want of Prosecution, ordering the
parties to appear and show cause why Mark’s Original Petition and Application for
Temporary Restraining Order and Temporary Injunction should not be dismissed for
want of jurisdiction. On February 3, 2020, Charity filed an Original Answer, entering
a general denial and raising the affirmative defense of res judicata. On February 6,
2020, Mark filed a Response to the Amended Motion to Show Cause, arguing his
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lawsuit is a collateral attack on a void divorce decree because of bigamy and that the
original trial court lacked subject-matter jurisdiction to grant the divorce. Attached
to Mark’s response is a December 2019 Order for Decree of Nullity entered by the
Fourth Judicial Circuit Court of South Dakota, ordering that: (1) Mark had no
knowledge of Charity’s prior marriages when he married Charity in Lawrence
County, South Dakota on August 7, 2017; and (2) the marriage between Mark and
Charity is null and void from the beginning. Mark argued that the current trial court
has jurisdiction to declare the Final Decree of Divorce void and requested the trial
court to vacate, set aside, and otherwise not enforce the Final Decree of Divorce or
any enforcement orders.
On February 7, 2020, the current trial court signed an Order Dismissing Case
for Want of Jurisdiction and found that it is undisputable the original trial court had
jurisdiction over Mark’s Petition for Divorce and to sign the Final Decree of Divorce
and that the voidness of the marriage does not translate into the voidness of any
judgment. The current trial court noted that the proper remedy in cases where a final
judgment results when certain facts are fraudulently withheld is to file a bill of
review, and the record shows that Mark’s counsel was hired to file a bill of review
but chose to file this lawsuit instead. The current trial court dismissed Mark’s lawsuit
for want of jurisdiction, finding that it is apparent that there may be a remedy for
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Mark, just not one via this lawsuit alleging that the original trial court lacked
jurisdiction.
ANALYSIS
On appeal, Mark contends that the trial court erred by sua sponte dismissing
his lawsuit for want of jurisdiction. In three sub-issues, Mark questions whether (1)
the original trial court had subject-matter jurisdiction to render the Final Decree of
Divorce, (2) he was required to file a bill of review to attack the Final Decree of
Divorce, and (3) section 6.307 of the Family Code invoked the current trial court’s
jurisdiction.
The question of whether a court has subject-matter jurisdiction is a question
of law, and a trial court’s order dismissing a cause for want of jurisdiction is
reviewed de novo. See Graber v. Fuqua, 279 S.W.3d 608, 631 (Tex. 2009)
(Wainwright, J., dissenting); Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004). A plaintiff’s petition must state facts which affirmatively show
the jurisdiction of the court in which the action is brought. Richardson v. First Nat’l
Life Ins. Co., 419 S.W.2d 836, 839 (Tex. 1967); see also Tex. Ass’n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993). When reviewing a trial court’s
order dismissing a case for want of jurisdiction, we construe the pleadings in favor
of the plaintiff and look at the pleader’s intent. Tex. Ass’n of Bus., 852 S.W.2d at
446 (citations omitted).
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A judgment may be challenged as void through a direct or collateral attack. In
re Thompson, 569 S.W.3d 169, 172 (Tex. App.—Houston [1st Dist.] 2018, orig.
proceeding). A direct attack may take the form of (1) a pleading filed under the
original cause number while the trial court has plenary power, or (2) after the trial
court loses plenary power, a pleading filed under a new cause number that qualifies
as a bill of review and is filed within four years of the judgment. Id.; see also Tex.
R. Civ. P. 329b (providing the timelines that a trial court has plenary power to vacate,
modify, correct, or reform the judgment within thirty days after the judgment is
signed). Once plenary power has expired, generally, a trial court cannot set aside a
judgment in a direct attack except by a bill of review. See Tex. R. Civ. P. 329b(f);
Cottone v. Cottone, 122 S.W.3d 211, 213 (Tex. App.—Houston [1st Dist.] 2003, no
pet.) (stating that a bill of review in the court rendering the judgment is the exclusive
remedy to attack the judgment). After the time period to bring a direct attack has
expired, the petitioner may only attack the judgment collaterally by initiating a new
case under a different cause number that challenges the effect of the original
judgment. In re Thompson, 569 S.W.3d at 172.
“As with other final, unappealed judgments which are regular on their face,
divorce decrees and judgments are not vulnerable to collateral attack.” Hagen v.
Hagen, 282 S.W.3d 899, 902 (Tex. 2009) (citation omitted). “Although a final
judgment may be erroneous or voidable, it is not void and thus subject to collateral
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attack if the court had jurisdiction of the parties and subject matter.” Berry v. Berry,
786 S.W.2d 672, 673 (Tex. 1990) (citations omitted). Thus, errors other than lack of
jurisdiction over the parties or the subject matter render the judgment voidable and
may be corrected only through a direct attack. In re Thompson, 569 S.W.3d at 172;
Hagen, 282 S.W.3d at 902.
A bill of review is an equitable proceeding brought by a party seeking to set
aside a prior judgment that is not void on the face of the record and is no longer
subject to challenge by a motion for new trial or appeal. King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Caldwell v. Barnes, 975 S.W.2d 535,
537 (Tex. 1998). A bill of review is a separate and independent suit, brought in the
same court that entered the judgment being attacked under a different cause number.
In re Thompson, 569 S.W.3d at 173-74. Generally, to set aside a judgment by a bill
of review, a petitioner must plead and prove (1) a meritorious defense to the cause
of action alleged to support the judgment, (2) that he was prevented from making by
the fraud, accident of wrongful act of his opponent, and (3) unmixed with any fault
or negligence on petitioner’s part. Chapman, 118 S.W.3d at 752; Caldwell, 975
S.W.2d at 537.
Where the suit attacking a former judgment is commenced in the wrong
court, but there is an order transferring the cause to the proper court and
invoking the jurisdiction of the court which entered the improper
judgment, jurisdiction is properly in that court and the jurisdiction
relates back to the original filing of the suit.
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Ragsdale v. Ragsdale, 520 S.W.2d 839, 841, 844 (Tex. Civ. App.—Fort Worth 1975,
no writ) (citations omitted) (explaining that the district court entered an order
transferring the case back to the Domestic Relations Court No. 1 on the grounds that
the cause of action constituted a collateral attack on the prior divorce decree).
First, we note that Mark cannot collaterally attack the Final Decree of Divorce
because he has not shown that it is void due to the original trial court not having
jurisdiction over the parties and subject matter or acting outside of its capacity as a
court. See Hagen, 282 S.W.3d at 902; In re Thompson, 569 S.W.3d at 172; Cottone,
122 S.W.3d at 214. Secondly, since Mark failed to show that the Final Decree of
Divorce is void and thus subject to a collateral attack, section 6.307 of the Family
Code, which gives a trial court jurisdiction to declare a marriage void in a collateral
proceeding, does not apply in this case. See Tex. Fam. Code. Ann. § 6.307; Berry,
786 S.W.2d at 673. Moreover, since the original trial court’s plenary power has
expired, a bill of review filed in the original trial court is Mark’s exclusive remedy
for directly attacking the Final Decree of Divorce. See Tex. R. Civ. P. 329b(f);
Hagen, 282 S.W.3d at 902; In re Thompson, 569 S.W.3d at 172; Cottone, 122
S.W.3d at 213.
Even if in the interest of justice, we construed Mark’s pleadings in his Original
Petition and Application for Temporary Restraining Order and Temporary
Injunction to be sufficient to allege a relief under a bill of review, Mark’s lawsuit
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still does not qualify as a bill of review because it was not filed in the original trial
court rendering the Final Decree of Divorce. See Tex. R. Civ. P. 71; In re Thompson,
569 S.W.3d at 173-74; Cottone, 122 S.W.3d at 213; Ragsdale, 520 S.W.2d at 841,
844. Since the current trial court did not render the Final Decree of Divorce, it did
not have jurisdiction to set aside the Final Decree of Divorce. See Cottone, 122
S.W.3d at 213; see also Ragsdale, 520 S.W.2d at 841, 844. Accordingly, we
conclude that the trial court did not err by sua sponte dismissing Mark’s lawsuit for
want of jurisdiction. We affirm the trial court’s judgment.
AFFIRMED.
_________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on August 10, 2021
Opinion Delivered January 13, 2022
Before Golemon, C.J., Horton and Johnson, JJ.
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