James Bruce Armentor v. Tracy Lea Kern and the Office of the Attorney General

Opinion issued June 30, 2005

In The

Court of Appeals

For The

First District of Texas

NO. 01-04-00579-CV

JAMES BRUCE ARMENTOR, Appellant

V.

TRACY LEA KERN AND THE OFFICE OF THE ATTORNEY GENERAL

OF TEXAS, Appellees

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 2000-24477

O P I N I O N

James Armentor appeals the trial court’s order granting Tracy Kern and the

Attorney General of Texas’s motion for enforcement of a child support order.

Armentor contends the trial court erred in ordering him to pay $21,793 for child

support arrearages because the underlying child support order is void due to the trial

court’s lack of personal jurisdiction over him. We affirm. The Background

In May 2000, Kern sued Armentor to establish that Armentor is the father of

her daughter, M.N.G., born in 1993 in Lake Charles, Louisiana. Kern, a Texas

resident, served Armentor with a nonresident citation in his home state of Louisiana

in June 2000. Armentor did not answer or appear for trial. In November 2000, the

trial court signed a default final order establishing parentage and awarding child

support.

The November order recites that the court had jurisdiction over the parties and

that Armentor is M.N.G.’s father. The order requires Armentor to pay $525 per

month for child support until June 1, 2001, and $600 per month thereafter. The order

further renders a retroactive support judgment against Armentor in the amount of

$33,225, to be liquidated in monthly payments of $150.

Armentor did not move for a new trial, appeal, or file a bill of review to contest

the final order. Armentor also did not pay child support as directed by the trial court,

although he did pay smaller sums to Kern over time. In 2002, the attorney general

moved to enforce the child support order. Armentor answered with a general denial

and asserted that “there is no enforceable order on which to find a child support

arrearage.” He later moved to strike the Attorney General and Kern’s motion for

enforcement on the ground that the trial court lacked personal jurisdiction over him,

as a nonresident party, at the time it signed the November 2000 final order.

In February 2002, the trial court heard argument on Armentor’s motion to

strike. The trial court denied the motion. Further, after hearing evidence, the trial

court granted the motion to enforce the child support order, and signed an order

confirming $21,793 in child support arrearages. Armentor moved for a new trial,

which the trial court denied. This appeal followed.

Discussion

Armentor contends the trial court erred in entering an order confirming a child

support arrearage because the underlying court order establishing parentage and

awarding child support is void due to the trial court’s lack of personal jurisdiction

over him. The Attorney General responds that (1) the underlying order expressly

states that the trial court had personal jurisdiction over Armentor, thus he cannot now

collaterally attack the order; and (2) the evidence demonstrates Armentor maintained

continuous, systematic, and substantial contacts with Texas, related to the subject

matter of the suit, thereby subjecting Armentor to personal jurisdiction in Texas. In

her briefing to this court, Kern adopts the Attorney General’s briefing, and further

requests that we strike the reporter’s record of the original default final order hearing,

because it was not before the trial court at the motion to enforce hearing.

Standing to Raise a Jurisdictional Challenge

A collateral attack, unlike a direct attack, does not attempt to secure the

rendition of a single, correct judgment in the place of a former judgment. Solomon,

Labert, Roth & Assoc’s, Inc., v. Kidd , 904 S.W.2d 896, 900 (Tex. App.—Houston

[1st . Dist.] 1995, no writ) (citing Austin Indep. Sch. Dist. v. Sierra Club , 495 S.W.2d

878, 881 (Tex. 1973) and Browning v. Placke , 698 S.W.2d 362, 363 (Tex. 1985)).

Instead, it is “an attempt to avoid the effect of a judgment in a proceeding brought for

some other purpose.” Id. (citing Employers Cas. Co. v. Block , 744 S.W.2d 940, 943

(Tex. 1988)).

A party may collaterally attack a judgment of a court of general jurisdiction in

another court of equal jurisdiction if the underlying judgment is void. Solomon , 904

S.W.2d at 900 (citing Browning , 698 S.W.2d at 363 ). A trial court’s judgment is void

only if the court had no jurisdiction over the parties or the property, no jurisdiction

over the subject matter, no jurisdiction to enter the particular judgment, or no capacity

to act as a court. Id. (citing Browning , 698 S.W.2d at 363 ). All errors other than

jurisdictional deficiencies render the judgment voidable, and such errors must be

corrected on direct attack. Id. (citing Browning , 698 S.W.2d at 363 ). The party

collaterally attacking the judgment bears the burden of demonstrating that the

judgment under attack is void. See Stewart v. USA Custom Paint & Body Shop, Inc. ,

870 S.W.2d 18, 20 (Tex. 1994).

Here, Armentor contends the underlying default final order against him is void

because the trial court never acquired personal jurisdiction over him. If the trial court

lacked personal jurisdiction over Armentor, then the default final order is void, and

it is permissible for Armentor to challenge that default order by a collateral attack.

See Solomon , 904 S.W.2d at 900–01. We therefore conclude Armentor has standing

to collaterally challenge the underlying default order for lack of personal jurisdiction.

Jurisdictional Recitals in the Default Final Order

Armentor contends that he did not engage in activities within Texas sufficient

to subject him to suit in Texas state district court. Kern and the Attorney General

respond that (1) Armentor’s attack cannot prevail because the jurisdictional recitals

in the final order under attack must be given absolute verity; and (2) even if Armentor

could collaterally attack the final order, the evidence sufficiently proves that the

Texas court had personal jurisdiction over Armentor at the time it rendered its default

final order.

“It is the well settled law of this state that where a judgment is collaterally

attacked, plain jurisdiction recitals contained therein must be accorded absolute

verity.” Pure Oil Co. v. Reece , 78 S.W.2d 932, 934 (Tex. 1935); see also Akers v.

Simpson , 445 S.W.2d 957, 959 (Tex. 1969) (“It is the firmly established rule in Texas

that a defendant who is not served and who does not appear may not, as a matter of

public policy, attack the verity of a judgment in a collateral proceeding; the

jurisdictional recitals import absolute verity.”). This court and the Dallas Court of

Appeals more recently have followed this rule. See Solomon , 904 S.W.2d at 900 ;

Huffstutlar v. Koons , 789 S.W.2d 707, 710 (Tex. App.—Dallas 1990, no writ). The

November 2000 default final order in this case contains such recitals, and thus the

trial court properly deferred to their verity.

Even if, in an appropriate case, the veracity of personal jurisdiction recitals

could be questioned in a collateral attack on the judgment, this is not such a case.

Armentor failed to introduce evidence contradicting these recitals at the motion to

enforce hearing. Armentor instead contended that the pleadings that sought relief did

not establish the trial court’s exercise of personal jurisdiction. Armentor did not offer

the testimony from the earlier default hearing. Armentor testified at the motion to

enforce hearing, but not about his contacts in Texas during the time preceding the

trial court’s default final order. Rather, he testified about his ability to pay the order

and his current infrequent contacts with the child. Such testimony does not

contradict the veracity of the recitals in the default final order. Thus, even assuming

that personal jurisdictional recitals can be collaterally attacked, Armentor has failed

to meet his burden to demonstrate that the default final order is void. See Stewart ,

870 S.W.2d at 20 .

Conclusion

We hold that the trial court did not err in finding that Armentor failed to

overcome the validity of the underlying default final order. We therefore affirm the

order of the trial court confirming a child support arrearage.

Jane Bland

Justice

Panel consists of Justices Nuchia, Keyes, and Bland.