in the Interest Of: V.M.I.

Opinion issued March 13, 2003 In The Court of Appeals For The First District of Texas NO. 01-02-00687-CV IN THE MATTER OF V.M.I., A CHILD On Appeal from the 246th District Court Harris County, Texas Trial Court Cause No. 94-001271 MEMORANDUM OPINION Appellant, Odelia Shirley Price, appeals from a judgment (1) declaring void and setting aside a 1994 decree (“the 1994 decree”), under which she had been made sole managing conservator of her great-granddaughter, V.M.I., in a suit affecting the parent-child relationship (“SAPCR”); (2) dismissing the cause; and (3) remanding V.M.I. to the custody of appellee, Inacia Ibarra Yarbrough, the child’s mother and Price’s granddaughter. The 1994 decree was set aside on the motion of Yarbrough, who had been a minor at the time of the child’s birth, but who had reached the age of majority by the time that she filed the motion. Because we interpret Yarbrough’s attack to be collateral, we determine whether she is bound by the jurisdictional recitations in the 1994 decree and whether that decree was void. We reverse the judgment and remand the cause. Background Yarbrough was raised by her grandmother, Price. In 1992, at age 14, Yarbrough gave birth to V.M.I. Yarbrough and V.M.I. remained in Price’s care. In January 1994, Price filed a SAPCR, seeking a declaration of paternity for V.M.I.’s purported father, Patrick Laxson; an award of child-support; and managing conservatorship of V.M.I. The resulting decree declared Laxson to be V.M.I.’s father, gave him possessory conservatorship of V.M.I., gave Price sole managing conservatorship of V.M.I., and ordered that Laxson pay child support to Price. In 1999, Yarbrough married, and she moved out of Price’s home sometime after that. In November 2000, the Texas Department of Protective and Regulatory Services (“TDPRS”) became the temporary managing conservator of V.M.I. on an emergency basis through proceedings in another court. See Tex. Fam. Code Ann. §§ 262.001, 262.102 (Vernon 2002). Yarbrough’s pleadings below state that TDPRS then placed V.M.I. temporarily with Yarbrough. Sometime in 2001, TDPRS filed a motion in this SAPCR to modify conservatorship of and support for V.M.I. See Tex. Fam. Code Ann. §§ 156.002(b), 156.101, 156.401 (Vernon 2002) (providing for modification of SAPCR decree concerning custody, possession, and support upon showing of materially and substantially changed circumstances). In October 2001, Yarbrough filed a “motion to set aside void order and, alternatively, cross-petition to modify conservatorship,” seeking to have the 1994 decree declared void and set aside or, alternatively, to modify the 1994 decree based on changed circumstances. Price filed a cross-petition against Yarbrough, seeking to recover for the cost of V.M.I.’s necessaries. See Tex. Fam. Code Ann. §151.001(c) (Vernon 2002) (“A parent who fails to discharge the duty of support is liable to a person who provides necessaries to those to whom support is owed.”). In January 2002, after a brief, non-evidentiary hearing, the trial court entered an order declaring the 1994 decree void, setting the 1994 decree aside, dismissing “this case and all proceedings herein,” and remanding V.M.I. to Yarbrough’s custody (“the 2002 judgment”). Although the 2002 judgment did not state the grounds for the trial court’s ruling, it did recite that Yarbrough’s motion to set aside was well taken and should be granted. Yarbrough’s Attack of the 1994 Decree In issues one and two, Price claims that the trial court erred in declaring the 1994 decree void and setting it aside. In issue three, Price claims that Yarbrough’s motion to set aside was barred by the four-year statute of limitations applicable to paternity determinations. See Tex. Fam. Code Ann. § 160.609(b) (Vernon 2002). A. The Nature of Yarbrough’s Attack on the 1994 Decree Yarbrough’s motion to set aside the 1994 decree asserted that the decree was void because (1) Yarbrough was not served with citation and (2) Yarbrough, who was a minor during the 1994 proceedings, was not appointed a guardian or attorney ad litem to represent her in those proceedings. Yarbrough claimed that the lack of service on her, combined with the absence of representation for her, made the 1994 decree void. 1. What Makes a Judgment Void A judgment is void only when it is apparent that the court rendering it had no jurisdiction of the person of a party or his property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act as a court. Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990); Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973). 2. What Distinguishes a Direct Attack from a Collateral Attack We must determine whether Yarbrough’s “motion to set aside void order” was a direct or a collateral attack because this determination affects how we review the trial court’s ruling on the 1994 decree. A direct attack is a proceeding instituted to correct an earlier judgment and to secure the entry of a single, proper judgment. Austin Indep. Sch. Dist., 495 S.W.2d at 881; Solomon, Lambert, Roth & Assocs., Inc. v. Kidd, 904 S.W.2d 896, 899 (Tex. App.—Houston [1st Dist.] 1995, no writ). A direct attack is not restricted to challenges to the validity of a judgment and may be used to challenge the judgment on “the basis of any error that probably caused the rendition of an improper judgment.” Austin Indep. Sch. Dist., 495 S.W.2d at 881. A direct attack may be brought in the court that rendered the earlier judgment or in a court with appellate jurisdiction over the court that rendered the judgment. Id. Examples of direct attacks include appeals, motions for new trial, motions to vacate, modify, and reform, and equitable bills of review. In a direct attack, the challenger alleging that he was not served with citation is not limited to the face of the record or bound by jurisdictional recitations in the challenged judgment. Min v. Avila, 991 S.W.2d 495, 499-500 (Tex. App.—Houston [1st Dist.] 1999, no pet.). A collateral attack does not attempt to secure the rendition of a single, correct judgment in place of an earlier one. Solomon, Lambert, Roth & Assocs., 904 S.W.2d at 900. Rather, a collateral attack is an attempt to avoid a prior judgment’s effect in a proceeding brought for some other purpose. Id. A collateral attack may be brought in any court of general jurisdiction. Id. With certain exceptions inapplicable here, to prevail on a collateral attack, the challenger must show that the judgment is void, not merely voidable, and must do so from the face of the record, not by extrinsic evidence. See Simms Oil Co. v. Butcher, 55 S.W.2d 192, 194 (Tex. Civ. App.—Dallas 1932, writ dism’d). 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., 904 S.W.2d at 901. Similarly, when the judgment contains no recitations about jurisdiction over a party, a presumption of jurisdiction nonetheless applies. Solomon, Lambert, Roth & Assocs., 904 S.W.2d at 901; see Stewart v. U.S.A. Custom Paint & Body Shop, Inc., 870 S.W.2d 18, 20 (Tex. 1994). “‘[W]hen the recitations of the judgment on a particular subject are insufficient affirmatively to show jurisdiction, so long as they do not show affirmatively a lack of jurisdiction, the usual presumption in favor of the judgment prevails.’” Solomon, Lambert, Roth & Assocs., 904 S.W.2d at 901 (emphasis in original; quoting Huffstutlar v. Koons, 789 S.W.2d 707, 710 (Tex. App.—Dallas 1990, no writ)). 3. Whether Yarbrough’s Attack Was Direct or Collateral Yarbrough does not state whether the challenge in her “motion to set aside” was direct or collateral, and her motion had aspects of both kinds of attack. Yarbrough’s challenge resembled a direct attack because it was asserted by a motion filed in the same court and under the same cause number; involved all of the same parties as appeared in the 1994 petition; and sought to vacate the 1994 decree, apparently as a prelude to instituting a new SAPCR and obtaining a new decree. On the other hand, her motion resembled a collateral attack because she argued that the 1994 decree was void, not simply erroneous. Moreover, she supported her challenge by relying on the face of the record, not on extrinsic evidence, as she could have done in a direct attack, and everyone appears to have treated the motion as a collateral attack below. The jurisdictional timelines had passed for all direct attacks except for a bill of review. See Tex. R. Civ. P. 306a(4) & 329b(a), (d), (g); Tex. R. App. P. 26.1 & 30. Therefore, the trial court had no jurisdiction to consider a true “motion to set aside.” The only direct attack that the trial court still had jurisdiction to consider was a bill of review. See Tex. R. Civ. P. 329b(f); see also Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985); Deen v. Kirk, 508 S.W.2d 70, 71-72 (Tex. 1974); McEwen v. Harrison, 345 S.W.2d 706, 710 (Tex. 1961); Solomon, Lambert, Roth & Assocs., 904 S.W.2d at 899. But Yarbrough’s motion did not resemble a bill of review, and no one below appears to have construed it that way. The motion was filed long after the four-year statute of limitations for a bill of review had expired, even accounting for Yarbrough’s minority through 1995. Most importantly, Yarbrough did not present evidence in support of her motion’s allegations, as the petitioner on a bill of review has the burden to do. See Caldwell v. Barnes, 975 S.W.2d 535, 537, 538 (Tex. 1998) (holding that limitations for bill of review is four years and also acknowledging that petitioner “must ordinarily plead and prove” the bill’s elements) (emphasis added). Instead, as can readily be seen from her appellate briefing, Yarbrough relied on the face of the record to support her challenge. We thus conclude that Yarbrough treated this motion, although brought in the form of a direct attack, to be in substance a collateral attack. On appeal, although Price indicates the motion could have been a bill of review or a collateral attack, Price treats it as a collateral attack. Accordingly, we review Yarbrough’s motion and the 2002 judgment under the standards applicable to collateral attacks. B. The Validity of the 1994 Decree 1. The Record The only materials in our record from the 1994 SAPCR proceedings are Price’s petition, Laxson’s answer, and the 1994 decree itself. Price’s 1994 petition recited that the SAPCR was “brought by Odelia Shirley Price” and also claimed that she was “the next friend of the mother of the child . . ., [who] is under the age of 18.” The petition listed Yarbrough as one of the people entitled to citation, but then stated, “No service is necessary at this time.” Price’s petition prayed that “citation and notice issue as required by law . . . .” No returns of service appear in the record from the 1994 proceedings. The 1994 decree recited that Price and Laxson appeared for trial; that Price had standing to sue under former Family Code section 11.03(8); that Price was “the next friend of the child’s mother, [Yarbrough], who is under the age of 18 years”; and that “[a]ll persons entitled to citation were properly cited.” The decree does not mention a guardian or attorney ad litem. 2. Service of Citation Yarbrough’s motion to set aside the 1994 decree first asserted that that decree was void because she had not actually been served with citation. A judgment can be void if the trial court had no jurisdiction over a necessary party. See Simms Oil Co., 55 S.W.2d at 194. A trial court will lack jurisdiction over a party who is not served by citation or who does not waive service or appear in the cause. See Berry v. City of Fort Worth, 124 S.W.2d 842, 846 (Tex. 1939). At the time of the 1994 proceedings, the Family Code required service of citation in an original SAPCR on each parent whose parental rights had not been terminated or who had not waived service of process. See Act of May 6, 1993, 73rd Leg., R.S., ch. 167, § 1, 1993 Tex. Gen. Laws 320, 320 (eff. Aug. 30, 1993), amended by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 126 (eff. Apr. 20, 1995) (current version at Tex. Fam. Code Ann. § 102.009(a)(7) (Vernon 2002)). Yarbrough was in this class of persons. Moreover, her minority prevented her or anyone representing her, including a next friend, from waiving service of citation. See Wright v. Jones, 52 S.W.2d 247, 250-51 (Tex. Comm’n App. 1932, holding approved); see also Sprague v. Haines, 4 S.W. 371, 373 (Tex. 1887) (dicta). The 1994 decree recites that citation was properly served on every party who was entitled to it, which would have included Yarbrough. Because this is a collateral attack, this recital imports absolute verity. See Solomon, Lambert, Roth & Assocs., 904 S.W.2d at 901. Accordingly, the 1994 decree is not void for lack of service of citation on a necessary party. 3. Representation of Yarbrough Yarbrough’s motion to set aside the 1994 decree also asserted that the decree was void because Yarbrough, who was a minor during the 1994 proceedings, was not appointed a guardian or attorney ad litem to represent her. Price responds that she acted as Yarbrough’s next friend in the 1994 proceedings and, thus, that Yarbrough was represented in those proceedings, albeit not by an ad litem. Minors who, like Yarbrough, have no legal guardian may generally sue and be represented by a next friend. Tex. R. Civ. P. 44. The next friend “may with the approval of the court compromise suits and agree to judgments, and such judgments, agreements, and compromises, when approved by the court, shall be forever binding and conclusive upon the party in such suit.” Id. For this reason, “[i]n a suit by a ‘next friend,’ the real party plaintiff is the child and not the next friend.” Gracia v. RC Cola-7-Up Bottling Co., 667 S.W.2d 517, 519 (Tex. 1984). The 1994 decree recited that “[t]he court finds . . . that [Price] is the next friend of the child’s mother, [Yarbrough], who is under the age of 18 years . . . .” (Emphasis added.) This recitation binds Yarbrough. See Akers, 445 S.W.2d at 959; Solomon, Lambert, Roth & Assocs., 904 S.W.2d at 901. Because this is a collateral attack, we cannot consider the face of the record to contradict this recitation; however, even if we could look to the face of the record for this purpose, we note that the record does not undermine the recitation as a matter of law. Accordingly, Yarbrough may not successfully challenge the recital that Price was Yarbrough’s next friend. The 1994 decree was not void for any reason relating to Yarbrough’s representation in the 1994 proceedings. Conclusion Under the Family Code, the trial court retained continuing, exclusive jurisdiction to modify custody or support on a showing of materially and substantially changed circumstances. See Tex. Fam. Code Ann. §§ 155.001(a), 155.002, 155.003(a), 156.001, 156.401(a) (Vernon 2002). Yarbrough could have pursued the part of her motion that sought to modify the 1994 decree, but she instead pursued the portion of her motion raising a collateral attack. That collateral attack must fail. We sustain issues one and two. Accordingly, we need not reach issue three. We reverse the 2002 judgment and remand the cause for further proceedings consistent with this opinion. Tim Taft Justice Panel consists of Justices Taft, Keyes, and Higley.