In the Interest of M.L.G. and H.L.G., Children--Appeal from 198th Judicial District Court of Kerr County

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State: Texas

Court: Texas Northern District Court

Docket No: 04-02-00189-CV

Case Date: 11/27/2002

Plaintiff: LUCIE CARR ARMSTRONG, JR., ET AL.

Defendant: SARITA STOREY ARMSTRONG HIXON, ET AL.--Appeal from 105th District Court of Kenedy County

Preview:In the Interest of M.L.G. and H.L.G., Children--Appeal
from 198th Judicial District Court of Kerr County
No. 04-02-00189-CV
IN THE INTEREST OF M.L.G. and H.L.G., children
From the 198th Judicial District Court, Kerr County, Texas
Trial Court No. 90-285-B
Honorable Emil Karl Prohl, Judge Presiding
Opinion by: Catherine Stone, Justice
Sitting: Catherine Stone, Justice
Paul W. Green, Justice
Sarah B. Duncan, Justice
Delivered and Filed: November 27, 2002
AFFIRMED
In this appeal, we are asked to determine whether attorney's fees awarded in an order modifying child support and
conservatorship may be treated as child support for collection purposes. However, because this issue is presented as an
impermissible collateral attack on a final judgment, we do not reach the issue and we affirm the trial court's judgment.
Factual and Procedural Background
Donna Cantwell and Dale Groll divorced in December of 1990. The divorce decree named Cantwell and Groll joint
managing conservators of their two minor children, M.L.G. and H.L.G., and gave Cantwell the right to determine the
children's primary residence. In February of 1999, Groll filed a motion to modify seeking custody of the children and
child support. A jury named Groll sole managing conservator and awarded him $71,037 in attorney's fees. Although
not requested by Groll, the September 24, 1999 order assessed attorney's fees "for legal services rendered in relation to
the children and in the nature of necessary child support." Cantwell did not appeal that order.
Groll filed a second motion to modify in June of 2001, attempting to increase the child support obligation. He also
requested that the court order Cantwell to make monthly payments on the earlier attorney's fees award. On February 7,
2002, the court granted Groll's motion by increasing the monthly child support obligation and ordering Cantwell to pay
$200 per month on the attorney's fees obligation, with that amount increasing to $500 per month after the remaining
minor child turned eighteen. Groll asserts, and Cantwell does not dispute, that while the trial court included an order
for withholding Cantwell's wages, no such order has ever been delivered to Cantwell's employer.
Analysis
Cantwell's question on appeal is whether the 2002 order permitting garnishment of her wages to pay the award of
attorney's fees as child support is valid. The validity of the garnishment order depends, in part, on the validity of the
underlying 1999 order awarding attorney's fees as child support. Because the 1999 order is a final judgment, Cantwell's
question of whether the attorney's fees were properly awarded as child support cannot be reviewed unless the court
finds that it is void. See Austin Indep. Sch. Dist. v. Sierra Club, 495 S.W.2d 878, 881 (Tex. 1973). "The judgment of a
court of general jurisdiction is not subject to collateral attack except on the ground that 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." Sierra Club, 495 S.W.2d at 881. "All errors other than jurisdictional deficiencies
render the judgment merely voidable, and such errors must be corrected on direct attack." Browning v. Placke, 698
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S.W.2d 362, 363 (Tex. 1985). If a judgment is merely voidable, it may not be collaterally attacked. See In the Matter
of J.D.G., 940 S.W.2d 246, 248-49 (Tex. App.--San Antonio 1997, no writ).
Cantwell does not argue that the trial court lacked jurisdiction over the parties. Instead, she argues that the court lacked
jurisdiction over the subject matter for two reasons: first, because the 1999 order awarding attorney's fees as child
support was unconstitutional and therefore void; and second, because Groll's pleadings in the 1999 proceedings were
filed under Title 5 of the Family Code, which does not permit collection of attorney's fees as child support. See Tex.
Fam. Code Ann. 106.002 (Vernon 2001). However, a judgment contrary to a constitutional provision, statute, or rule
of procedure is merely voidable or erroneous. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990). Therefore,
even if we accept Cantwell's position that the 1999 order violated the constitution or the Family Code, it would be
merely voidable and not void. Additionally, Groll's failure to specifically request that attorney's fees be awarded as
child support did not deprive the trial court of jurisdiction to enter the 1999 order. Unlike the Moreno case upon which
Cantwell relies, Groll did have pleadings on file requesting affirmative relief and thereby bringing the parties within
the court's jurisdiction. See Moreno v. Moore, 897 S.W.2d 439, 442 (Tex. App.--Corpus Christi 1995, no writ)
(holding that trial court erred in granting protective order in favor of respondent who had filed no pleadings requesting
affirmative relief).
Cantwell's challenge constitutes an impermissible collateral attack of the 1999 order awarding attorney's fees as child
support. Permitting Cantwell to pursue this challenge would violate principles of res judicata. See Mapco, 795 S.W.2d
at 703. For that reason, we affirm the judgment of the trial court in all aspects.
Catherine Stone, Justice
Do Not Publish
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