Selene Lara Mateos Baqdounes v. Nazir Baqdounes

Opinion issued January 29, 2009

In The

Court of Appeals

For The

First District of Texas

_________

NO. 01-07-1102 -CV

__________

SELENE LARA MATEOS BAQDOUNES , Appellant

v.

NAZIR BAQDOUNES, Appellee

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 2006-25436

MEMORANDUM OPINION

Appellant, Selene Lara Mateos Baqdounes, appeals the trial court’s grant of

summary judgment in favor of her alleged common law husband, Nazir Baqdounes.

We reverse and remand.

Background

In March 1988, Victor Bravo (“Victor”) and Selene Lara Mateos (“Selene”)

registered their informal marriage in Harris County, Texas. On September 6, 1988,

Selene gave birth to Bianca Bravo, the undisputed child of Victor. Victor abandoned

Selene and Bianca on or about January 1, 1989.

Sometime in 1990, Selene and Nazir Baqdounes (“Nazir”) moved in together

and lived together for at least the next 16 years. In 1994, Selene gave birth to Karima

Baqdounes.

After giving birth to Karima, Selene filed for divorce from Victor. Selene’s

divorce from Victor included a Suit Affecting the Parent-Child Relationship

(“SAPCR”) naming Bianca as the child of the Selene-Victor marriage; the SAPCR did

not mention Karima. Selene received a divorce decree on May 2, 1997. The divorce

decree named Bianca as a child of the Selene-Victor marriage and also did not mention

Karima. The Selene-Victor divorce decree was entered on May 2, 1997. Selene

continued to lived with Nazir and bore another child, Najwa Baqdounes, in 1999.

In 2006, Selene filed a suit for divorce from Nazir and a SAPCR regarding

Karima and Najwa. In a deposition, she testified that she and Nazir had lived together

and had a common law marriage from “on or about May 3, 1997,” the day after her

divorce from Victor. Selene later amended her pleadings to state that her marriage to

Nazir occurred “on or about June 4, 1997.” Nazir filed a counter-petition to dissolve

his marriage to Selene, including a SAPCR regarding Karima and Najwa. Both Selene

and Nazir’s pleadings identified Karima and Najwa as the children of their marriage.

Nazir sought summary judgment to void his marriage to Selene on the grounds

that (1) Selene’s prior marriage to Victor had not been properly dissolved because it

failed to include a SAPCR for Karima who was born during the time Selene was still

married to Victor, and (2) Selene had married Nazir less than 30 days after the final

judgment in her divorce from Victor. The trial court entered judgment in Nazir’s

favor, finding that the marriage between Selene and Nazir was void.

Standard of Review

We review the granting of a summary judgment de novo.

Natividad v. Alexsis,

Inc. , 875 S.W.2d 695, 699 (Tex. 1994). A traditional summary judgment under Rule

166a(c) is properly granted only when the movant establishes that there are no genuine

issues of material fact and that it is entitled to judgment as a matter of law. Tex. R.

Civ. P. 166a(c); Provident Life & Accid. Ins. Co. v. Knott , 128 S.W.3d 211, 215 (Tex.

2003). In deciding whether there is a disputed material fact precluding summary

judgment, evidence favorable to the nonmovant will be taken as true, every reasonable

inference must be indulged in favor of the nonmovant, and any doubts must be

resolved in favor of the nonmovant. Knott , 128 S.W.3d at 215 . Where, as here, a trial

court’s order granting summary judgment does not specify the ground or grounds

relied upon for its ruling, summary judgment will be affirmed on appeal if any of the

summary judgment grounds advanced by the movant are meritorious. Dow Chem. Co.

v. Francis , 46 S.W.3d 237, 242 (Tex. 2001) (citing Carr v. Brasher , 776 S.W.2d 567,

569 (Tex. 1989)).

Analysis

Selene argues that (1) the trial court erred by granting summary judgment on the

ground that her divorce from her first husband, Victor, was void; (2) the trial court

allowed an impermissible collateral attack on her divorce decree from Victor; (3) her

daughter, Karima, was not an indispensable party to her divorce from Victor, and thus

the failure to include Karima in that divorce decree did not render the judgment void;

and (4) the trial court erred by granting summary judgment on the grounds that Selene

admitted she entered into a common law marriage with Nazir less than 30 days

following her divorce from Victor.

I. Nazir’s Collateral Attack on the Selene-Victor Divorce Decree

Nazir’s attack on the prior Selene-Victor divorce judgment does not attempt to

secure the rendition of a single, correct judgment in place of an earlier one. Instead,

Nazir argues that Selene’s divorce from Victor is invalid. Nazir therefore brings a

collateral attack on the Selene-Victor divorce decree. See Solomon, Lambert, Roth &

Assocs., Inc. v. Kidd , 904 S.W.2d 896, 900 (Tex. App.—Houston [1st Dist.] 1995, no

writ); Ramsey v. Ramsey , 19 S.W.3d 548, 552 (Tex. App.—Austin 2000, no pet.)

(holding that a collateral attack is an attempt to avoid the effect of a judgment in a

proceeding brought for some other purpose). A void judgment may be collaterally

attacked in another court of equal jurisdiction. See Browning v. Placke , 698 S.W.2d

362, 363 (Tex. 1985) (per curiam). However, a judgment is only void if the trial court

lacked jurisdiction over the parties or the subject matter in controversy. Berry v.

Berry , 786 S.W.2d 672, 673 (Tex. 1990).

Extrinsic evidence may not be used to establish a lack of jurisdiction in a

collateral attack. Holloway v. Starnes , 840 S.W.2d 14, 18 (Tex. App.—Dallas 1992,

writ denied); Huffstutlar v. Koons , 789 S.W.2d 707, 710 (Tex. App.—Dallas 1990,

orig. proceeding) (en banc). “If a court having potential jurisdiction renders a

judgment when the potential jurisdiction has not been activated and the defect is

apparent from the face of the judgment , then the judgment is void and subject to either

direct or collateral attack.” Waldron v. Waldron , 614 S.W.2d 648, 650 (Tex. Civ.

App.—Amarillo 1981, no writ) (emphasis in original) (citing Fulton v. Finch , 346

S.W.2d 823, 827 (Tex. 1961) (“A judgment which discloses its invalidity upon its face

anywhere at any time is a nullity and may be disregarded anywhere at any time.”)).

If, however, a court having potential jurisdiction renders a judgment that is regular on

its face and which contains recitations stating that the court’s potential jurisdiction has

been activated, the judgment is voidable, not void, and may be set aside only by direct

attack. Id . Jurisdictional recitals in the judgment control the rest of the record so that,

even though other parts of the record show a lack of jurisdiction, if the judgment

recites the contrary, the collateral attack fails. Holloway , 840 S.W.2d at 18 ;

Huffstutlar , 789 S.W.2d at 710 . Nazir argues that the Selene-Victor divorce judgment

is void for jurisdictional deficiencies, but Nazir must prove these deficiencies from the

face of the judgment and not from extrinsic evidence. Id .

The Selene-Victor 1997 Final Decree of Divorce jurisdictional recitals stated:

The Court finds that the pleadings of Petitioner are in due form and

contain all the allegations, information, and prerequisites required by

law. The Court, after receiving evidence, finds that it has jurisdiction

over this cause of action and the parties and that at least 60 days have

elapsed since the date the suit was filed. The Court finds that Petitioner

has been a domiciliary of this state for at least a six-month period

preceding the filing of this action and a resident of the county in which

this suit is filed for at least a 90-day period preceding the filing of this

action. All persons entitled to citation were properly cited.

The precise language used in the Selene-Victor decree has been found sufficient

to establish the requisite jurisdictional bases for a valid judgment. See Ramsey , 19

S.W.3d at 552–53. Jurisdictional recitations in a judgment that is regular on its face

import absolute verity and can be attacked only directly, not collaterally. Akers v.

Simpson , 445 S.W.2d 957, 959 (Tex. 1969); Solomon, Lambert, Roth & Assocs. Inc,

904 S.W.2d at 901 .

Nazir also supported his collateral attack on the 12-year-old Selene-Victor

divorce judgment with evidence that Karima was born during the term of the Selene-Victor marriage and thus statutory presumption mandated her joinder as a child of the

Selene-Victor marriage.

However, Nazir’s evidence does not show a defect on the

face of the divorce judgment but presents evidence extrinsic to the recitals of the

judgment.

Waldron , 614 S.W.2d at 650 ; Holloway , 840 S.W.2d at 18 ; Huffstutlar ,

789 S.W.2d at 710 . Nazir may not successfully challenge the jurisdictional recitals

which are not deficient on their face. Akers , 445 S.W.2d at 959 ; Solomon, Lambert,

Roth & Assocs ., Inc ., 904 S.W2d at 901 . Accordingly, Nazir can not prevail in his

collateral attack. Simms Oil Co. v. Butcher , 55 S.W.2d 192, 194 (Tex. Civ.

App.—Dallas 1932, writ dism’d). Selene’s issues one and two are sustained. We

need not reach Selene’s third issue.

II. The Selene-Nazir marriage

Nazir argues on appeal that even if the Selene-Victor divorce is valid, Selene’s

testimony that her marriage to Nazir began within 31 days of the divorce renders her

marriage to Nazir void under section 6.801 of the Family Code, which provides that

neither party to a divorce may marry a third party before the 31st day after the date the

divorce is decreed. Tex. Fam. Code. Ann. § 6.801 (Vernon 1997). Selene testified

that she was married to Nazir on May 3, 1997, one day after the Selene-Victor divorce

decree was signed. Selene’s operative pleadings state that her marriage to Nazir began

on June 4, 1997. The record supports a common law marital relationship between the

parties wherein it contains Nazir’s admission of marriage and Selene’s testimony that

the parties had agreed to be married, had lived together in Texas as husband and wife,

and had represented to others they were married since at least June 4, 1997. Tex.

Fam. Code Ann . §§ 2.401, 6.202(b) (Vernon 1997).

While a marriage is void if entered into when either party has an existing

marriage to another person which has not been dissolved by legal action or terminated

by the death of the other spouse, the later marriage becomes valid when the prior

marriage is dissolved if, after the date of the dissolution, the parties have lived

together as husband and wife and represented themselves to others as being married.

Tex. Fam. Code Ann . §6.202(a),(b) (Vernon 1997). The term of the Selene-Nazir

marriage applies prospectively from and after the time of the dissolution of the prior

marriage to Victor. Caddel v. Caddel, 486 S.W.2d 141 , 145 (Tex. Civ. App.

—Amarillo 1972, no writ); see White v. City of Quanah , 88 Tex. 14 , 28 S.W. 1065

(1894). The judicial admissions in both parties’ pleadings and the clerk’s record

sufficiently support a common law marital status after June 4, 1997. Thus, we hold

that the legal marriage relationship in this case, although common law in character,

had its inception on June 4, 1997, the time of the divorce judgment in the previously

outstanding marriage between Selene and Victor, and the marriage of the parties of

this suit is valid from and after that date. We sustain Selene’s fourth issue.

Conclusion

In view of the foregoing, the judgment granting Nazir’s motion for summary

judgment is reversed and the cause is remanded to the trial court for further

proceedings consistent with this opinion.

George C. Hanks, Jr.

Justice

Panel consists of Justices Jennings, Hanks and Bland.