Leslie J. Fox v. William E. Miller ( 1993 )

Fox IN THE COURT OF APPEALS, THIRD DISTRICT OF TEXAS,

AT AUSTIN





NO. 3-92-063-CV



LESLIE J. FOX,

APPELLANT

vs.





WILLIAM E. MILLER,

APPELLEE

FROM THE DISTRICT COURT OF FAYETTE COUNTY, 155TH JUDICIAL DISTRICT

NO. 14,567, HONORABLE DAN R. BECK, JUDGE PRESIDING

Leslie J. Fox appeals from a trial-court order that vacates a Nebraska money judgment against her former husband, William E. Miller, for past-due child support. We will reverse the trial-court order and remand the cause for proceedings not inconsistent with our opinion.

THE CONTROVERSY

In 1974 Fox divorced Miller in a Nebraska district court. The decree awarded Fox custody of their three children and ordered Miller to pay child support. He became delinquent in his payments.

Fox filed an application with the Nebraska Title IV-D agency for child-support services under the Nebraska Revised Uniform Reciprocal Enforcement Act, Neb. Rev. Stat. §§ 42-762 to 42-7,104 (1988). The Nebraska district court certified Fox's application and transferred the pertinent documents to district court in Fayette County, Texas, where Miller has resided since the divorce. See Act of May 31, 1981, 67th Leg., R.S., ch. 356, § 9, 1981 Tex. Gen. Laws 945, 946 (Uniform Reciprocal Enforcement Support Act, Tex. Fam. Code Ann. § 21.32(a) (URESA), since repealed and reenacted as Revised Uniform Reciprocal Enforcement of Support Act, Tex. Fam. Code Ann. § 21.18(a) (West Supp. 1993) (RURESA)). Fox and Miller entered into an agreed order in August 1985 specifying future child-support payments and the amount of arrearages owing.

In 1990 the attorney general of Texas, on behalf of Fox, filed a motion to enforce the 1985 URESA order. The trial court found that Miller was not in arrears and dismissed the motion to enforce the agreed order with the proviso that the dismissal order had no effect on "any claims for support/reimbursement from orders out of the state of Nebraska."

In an action independent of the 1985 Texas URESA order, the Nebraska Title IV-D agency filed an action in a Nebraska court to enforce the child-support order contained in the 1974 divorce decree. In April 1990, the Nebraska court rendered judgment by default against Miller for $30,187.41 plus interest of $27,532.46. The Texas attorney general filed the judgment in Fayette County district court for enforcement pursuant to the Uniform Enforcement of Foreign Judgments Act, Tex. Civ. Prac. & Rem. Code Ann. §§ 35.001-.008 (West 1986). Miller moved to vacate the Nebraska judgment on a number of grounds including lack of personal jurisdiction, fraud, res judicata, and statute of limitations. The district court granted Miller's motion to vacate on September 24, 1991, on the grounds of fraud, res judicata, and statute of limitations.

In this appeal, Fox contends, in one point of error, that the trial court's order vacating the Nebraska money judgment violated the full faith and credit clause of the federal Constitution, U.S. Const. art. IV, § 1. ⁽¹⁾

DISCUSSION AND HOLDING

Article IV, Section 1 of the United States Constitution and statutes enacted thereunder require that Texas courts give full faith and credit to valid judgments of other states. Roche v. McDonald, 275 U.S. 449, 451-52 (1928). In the cause now before us, Fox's introduction into evidence of the Nebraska judgment that appeared to be a valid, final, and subsisting judgment rendered by a court of competent jurisdiction, created a prima facie case for enforcement of the judgment. See Olson v. Success Motivation Inst., 528 S.W.2d 111, 112 (Tex. Civ. App.--Waco 1975, writ ref'd n.r.e.). The burden lay upon Miller to establish that the Nebraska court lacked jurisdiction or that the foreign judgment was otherwise void. Id. The fact that the Nebraska judgment was taken by default does not change the rule that it is conclusive on the merits when it is subjected to collateral attack in Texas. See Mitchim v. Mitchim, 518 S.W.2d 362, 366 (Tex. 1975).

After hearing, the Texas trial court declared the Nebraska judgment void and entered findings of fact and conclusions of law based on Miller's claims of fraud, statute of limitations, and res judicata. Miller could prevail on his claims, which constituted collateral attacks upon the validity of the Nebraska judgment, only if the record revealed such a lack of jurisdiction, either subject matter or personal, as to render it void. See Massachusetts v. Davis, 168 S.W.2d 216, 220 (Tex. 1942); Carter v. G & L Tool Co., 428 S.W.2d 677, 682 (Tex. Civ. App.--San Antonio 1968, no writ).

The copy of the Nebraska judgment contained in the record is authenticated and appears on its face to be a record of a Nebraska court of general jurisdiction; therefore, the judgment is presumed to be within the court's jurisdiction. See Texas Dep't of Pub. Safety v. Hamilton, 304 S.W.2d 719, 722 (Tex. Civ. App.--Eastland), writ ref'd n.r.e. per curiam, 306 S.W.2d 712 (Tex. 1957). Additionally, the trial court did not enter a finding or conclusion regarding Miller's claim that the Nebraska court lacked jurisdiction to render the judgment against him. Because the Texas judgment rests on explicit findings based on fraud, res judicata, and statute of limitations, we must presume the trial court rejected Miller's claim of a want of personal jurisdiction, a matter he does not raise as a cross-point in this appeal. See Tex. R. Civ. P. 299; Anderson v. Smith, 635 S.W.2d 204, 207 (Tex. App.--Houston [1st Dist.] 1982, no writ).

In vacating the Nebraska judgment, the trial court concluded that Fox had obtained the judgment through fraud because "she was attempting to obtain the same relief twice." The court appears to base this conclusion on two findings--that the Nebraska judgment included child-support arrearages for the same time period covered by the Texas agreed order and that Fox was using "the court system in both Nebraska and Texas at the same time in an attempt to collect the same relief twice."

Fraud as it relates to the validity of a final judgment is either extrinsic or intrinsic; only extrinsic fraud, a representation or concealment that prevents a plaintiff from having a day in court, is a ground for relief in a collateral attack. Kuper v. Kuper, 336 S.W.2d 819, 821 (Tex. Civ. App.--Amarillo 1960, writ dism'd). A judgment will not be vacated for intrinsic fraud, which exists when the purported fraudulent act was actually or potentially an issue in the original proceeding. Old Nat'l Life Ins. Co. v. Patillo, 195 S.W.2d 690, 695 (Tex. Civ. App.--Texarkana 1946, writ ref'd n.r.e.). The fraud, if any, under these circumstances is intrinsic and may not serve as a ground on which to vacate the Nebraska judgment.

Similarly, Miller's argument that enforcement of the judgment was barred by the Texas statute of limitations for enforcement of a Texas child-support order must fail as a collateral attack. The trial court's conclusion that Fox "is barred by the 10-year statute of limitations" evidently is based on the finding that the amount of the Nebraska judgment included child-support arrearages "dating back as far as 1973." Miller did not plead and the trial court did not specify the statutory limitation provision under which Miller's relief was granted. We agree with Fox that it appears from the record that the court applied section 14.41(b) of the Texas Family Code to find that enforcement of the Nebraska judgment was barred. ⁽²⁾

We believe the trial court's reliance on this statute is misplaced, as the statute applies to the entry of a judgment, not the enforcement of an existing, final judgment. ⁽³⁾ The Nebraska court was the appropriate forum in which to have asserted the statute-of-limitations defense for the time period of child-support arrearages covered by the Nebraska judgment. Because, as stated above, the judgment is presumed valid, Miller's only possible argument based on limitations is with regard to enforcement of the judgment once it was rendered by the Nebraska court, an argument he did not raise and the record does not support. See Tex. Civ. Prac. & Rem. Code Ann. § 16.066 (West 1986).

The remaining ground upon which the trial court vacated the Nebraska judgment, that its enforcement was precluded by the res judicata effect of the 1985 Texas agreed order, is not sustainable. Notwithstanding the fact that the order dismissing the 1985 enforcement action explicitly states that it is not preclusive of any action under the Nebraska support order, had Miller wished to assert a res judicata plea, he should have stated this ground in reply to the motion for judgment in the Nebraska suit. See Harris v. Harris, 403 S.W.2d 445, 448 (Tex. Civ. App.--Houston 1966, writ ref'd n.r.e.). Further, a RURESA proceeding, such as that which culminated in the 1985 agreed order, is in addition to and not a substitute for any other order of support that may exist. Smith v. Steen, 833 S.W.2d 178, 179 (Tex. App.--Austin 1992, no writ).

Based on the presumption of the validity of the judgment, which Miller failed to controvert, we conclude the Nebraska court was the proper forum in which to address the claims Miller brought on collateral attack. Therefore, the trial court erred in vacating the judgment and should have accorded it full faith and credit. Accordingly, we sustain Fox's point of error.

We reverse the order of the trial court and remand this cause to the trial court for proceedings not inconsistent with our opinion.

John Powers, Justice

[Before Justices Powers, Aboussie and B. A. Smith]

Reversed and Remanded

Filed: April 14, 1993

[Do Not Publish]

1.   The attorney general brings this appeal on Fox's behalf. See Tex. Hum. Res. Code Ann. § 76.002 (West Supp. 1993). Although the attorney general submitted the appeal on two points of error, we need not address the second point because it relates to this court's jurisdiction to consider this appeal, a matter resolved by our opinion on motion to reinstate and judgment of June 3, 1992. See Office of the Attorney General v. Miller, No. 92-063-CV (Tex. App.--Austin June 3, 1992) (not designated for publication).

2.   The Texas statute of limitations pertaining to judgments for past-due child-support payments states that a court "may not confirm the amount of child support in arrears and may not enter judgment for unpaid support payments that were due and owing more than 10 years before the filing of the motion to render judgment under this section." Tex. Fam. Code Ann. § 14.41(b) (West Supp. 1993).

3. We have used the term "entry" to conform to the language used in § 14.41(b). We note that § 14.41(a) of the same statute uses the proper terminology in discussing the court's act of rendering judgments.