Opinion
No. 05-17-00085-CV
06-05-2018
IN THE INTEREST OF L.C.R., A CHILD
On Appeal from the 302nd Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-90-20472
MEMORANDUM OPINION
Before Justices Lang-Miers, Myers, and Boatright
Opinion by Justice Myers
Clyde D. Turner, Jr., the child's father, appeals the trial court's order denying his motion to set aside and vacate as void an adjudication of paternity and order to pay child support. Appellant brings four issues on appeal contending (1) the underlying judgment establishing parentage and ordering child support is void because appellant was never served and had no notice of the proceeding; (2) appellant's claim of lack of personal jurisdiction to the original order was not waived by his subsequent filing challenging the administrative writ of withholding; (3) the administrative writ of withholding process violated appellant's right of due process when the writ was entered after the trial court's jurisdiction to enforce a child-support order had expired; and (4) there was no evidence of appellant's income to support the child-support order, and the records of appellant's payments are incomplete and inconsistent regarding the amount due. We affirm the trial court's judgment.
BACKGROUND
L.C.R. was born in January 1985. In 1990, the Attorney General filed a petition to establish the parent-child relationship of appellant to L.C.R. The petition also sought an order requiring appellant to pay child support if his paternity was established. The petition alleged appellant resided in Dallas. Two months later, the Attorney General filed a motion for substituted service seeking to serve appellant by leaving a copy of the petition with anyone over the age of sixteen. The Attorney General stated in the motion that it had "verified that the Respondent . . . resides at" the Dallas address. The trial court granted the motion for substituted service.
The "Officer's Return" was dated March 11, 1991, and stated the officer served appellant "at 1115 o'clock" "by delivering to the within named Clyde D. Turner Jr. each, in person, a true copy of this Citation together with the accompanying copy of this pleading . . . ." Handwriting on the citation (not the return) states:
1115 A— By serving father Clyde Turner Sr.Appellant did not file an answer, and on May 14, 1991, the trial court rendered judgment by default that appellant was L.C.R.'s father. The court ordered appellant to pay child support of $275 per month. In 2005, the Attorney General began to withhold money from appellant's earnings to enforce the child-support order.
3-11-91
In 2013, when L.C.R. was twenty-eight years old, appellant filed a petition to terminate or modify the income-withholding order because the child-support obligation had ended. On May 13, 2013, the trial court ordered that "the order to withhold for child support . . . is abated pending further order," and the court ordered that appellant's employer "cease withholding for child support." The attorney general moved to vacate the May 13, 2013 order, asserting appellant "is in arrears over $89,000 . . . which he has not challenged in any pleading currently on file." The court reinstated the withholding order and stated that any withholding orders issued since May 31, 2003 (when L.C.R. graduated from high school) were for arrears only.
In 2016, appellant filed the current suit, his "Motion to Set Aside and Vacate Void Judgment," asserting the 1991 order establishing his paternity and his child-support obligation was void because the service of process was deficient. The trial court denied appellant's motion and made findings of fact and conclusions of law. The court concluded that appellant's suit to set aside the paternity judgment was a collateral attack based on the court's lack of personal jurisdiction and that appellant had waived the lack of personal jurisdiction by seeking in 2013 the termination of withholding, thereby recognizing the court's jurisdiction over the case. The court also concluded that granting relief to appellant would impair the child's mother's "substantial interest of reliance on the judgment by wiping out the child support arrearage and the child's substantial reliance interest by depriving the child of a legal father."
ORDER ON APPEAL
In the "Summary of Argument" section of appellant's brief, appellant states that the orders before us in this appeal are (1) the "Order Denying [Appellant's] Motion to Set Aside and Vacate Void Judgment," which the court signed January 6, 2017; (2) the "Order to Employer to Terminate Withholding for Support" signed May 13, 2013; and (3) the "Order on Motion for to Vacate/Set Aside and Dismiss," which reinstated the withholding for the child-support arrearage and was signed December 20, 2013. We agree we have jurisdiction over the 2017 order as it is a final judgment in the action and appellant timely filed his notice of appeal from this order on January 23, 2017. As for the two 2013 orders, they pertained to appellant's petition to terminate the writ of withholding, which he filed January 10, 2013, and to the Attorney General's "Motion to Vacate/Set Aside and Dismiss" filed October 22, 2013. The trial court's order signed December 20, 2013 is the final judgment in that stage of the litigation. The record does not show that appellant filed any postjudgment motions from these orders or that he appealed the orders. Therefore, the 2013 orders became final and unappealable thirty days after the trial court signed the final order in that stage of the litigation. We conclude the only order before us in this appeal is the trial court's "Order Denying [Appellant's] Motion to Set Aside and Vacate Void Judgment," signed January 6, 2017.
Appellant's notice of appeal stated appellant "desires to appeal the trial court's Order Denying Clyde D. Turner's Motion to Set Aside and Vacate Void Judgment." Nothing in the notice of appeal shows appellant intended to appeal the orders concerning the writ of withholding.
DIRECT ATTACK OR COLLATERAL ATTACK
In his first issue, appellant contends the trial court erred by denying appellant's motion to set aside and vacate the 1991 judgment as void. Appellant asserts the 1991 judgment is void because he was not served with the suit before judgment was rendered.
In this case, the trial court made findings of fact and conclusions of law. Findings of fact in an appeal from a nonjury trial carry the same weight as a jury verdict and are reviewed under the same standards that are applied in reviewing evidence to support a jury's verdict. Shaw v. Cty. of Dallas, 251 S.W.3d 165, 169 (Tex. App.—Dallas 2008, pet. denied). In evaluating the legal sufficiency of the evidence to support a finding, we view the evidence in the light favorable to the fact finder's finding, indulging every reasonable inference supporting it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005). We "must credit favorable evidence if reasonable jurors could, and disregard contrary evidence unless reasonable jurors could not." Id. at 827. The ultimate test is whether the evidence allows reasonable and fair-minded people to reach the finding under review. See id. Anything more than a scintilla of evidence is legally sufficient to support a challenged finding. Formosa Plastics Corp. USA v. Presidio Eng'rs & Contractors, 960 S.W.2d 41, 48 (Tex. 1998). In a factual sufficiency review, we view all the evidence in a neutral light and set aside the finding only if the finding is so contrary to the overwhelming weight of the evidence such that the finding is clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Morris v. Wells Fargo Bank, N.A., 334 S.W.3d 838, 842 (Tex. App.—Dallas 2011, no pet.). If the findings do not address an element of a claim or defense, that element may be provided by presumption in support of the judgment if the trial court has made a finding of fact on any other element of the claim or defense. TEX. R. CIV. P. 299.
"[A] litigant may attack a void judgment directly or collaterally . . . ." PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). "A direct attack . . . attempts to correct, amend, modify or vacate a judgment . . . ." Id. "A collateral attack is an attempt to avoid the binding force of a judgment in a proceeding not instituted for the purpose of correcting, modifying, or vacating the judgment, but in order to obtain some specific relief which the judgment currently stands as a bar against." Browning v. Prostok, 165 S.W.3d 336, 346 (Tex. 2005); see PNS Stores, 379 S.W.3d at 272 ("A collateral attack seeks to avoid the binding effect of a judgment in order to obtain specific relief that the judgment currently impedes," citing Browning).
The courts have used different language over the years to define what constitutes a direct or collateral attack. In PNS Stores, the supreme court acknowledged "there is some inconsistency in our state's jurisprudence concerning important distinctions between . . . direct and collateral attacks," and the court stated it was clarifying the meaning of those terms. PNS Stores, 379 S.W.3d at 271. Appellant quoted from many cases predating PNS Stores that defined direct and collateral attacks. However, to the extent those statements were inconsistent with PNS Stores, we consider them to have been overruled.
Appellant's suit seeks only the vacating of the 1991 judgment. It was not instituted for some other purpose to obtain some specific relief that the 1991 judgment currently stands as a bar against. Therefore, this suit is a direct attack on the 1991 judgment.
Direct Attack
"A direct attack—such as an appeal, a motion for new trial, or a bill of review— . . . must be brought within a definite time period after the judgment's rendition." PNS Stores, 379 S.W.3d at 271. A motion for new trial must be brought within thirty days of the signing of the judgment. TEX. R. CIV. P. 329b. An appeal must be brought within 20 to 105 days after the judgment is signed, depending on the circumstances. See TEX. R. APP. P. 26.1, 26.3. The time for appellant to bring a direct attack of the May 14, 1991 judgment by a motion for new trial or appeal expired in 1991. The only other form of direct attack on a judgment is a bill of review. A bill of review must be brought within four years after the trial court rendered the challenged judgment. PNS Stores, 379 S.W.3d at 275. If the party challenging the judgment proves it was obtained through extrinsic fraud, the four-year limitations period may be tolled until the party knew or should have known about the fraud and the judgment. Id.
Appellant stated in an affidavit attached to his petition that he "was not aware of a pending paternity action and was not aware of this Order [the 1991 order] until the Office of the Attorney General issued an income withholding order to my employer." The trial court did not make a finding on when appellant first knew or should have known about the 1991 judgment, but the court did find the Attorney General began withholding child support from appellant's earnings in 2005. Appellant's statement supports a presumed finding that appellant knew or should have known in 2005 about the 1991 judgment and the fact that he was not served in that suit. Therefore, the statute of limitations for appellant to challenge the 1991 judgment by bill of review expired in 2009, seven years before appellant filed this action. Accordingly, we lack jurisdiction to address appellant's argument as a direct attack on the judgment.
At the hearing on the motion to vacate the 1991 judgment, appellant's attorney "ask[ed] the Court to take judicial notice of anything that's in the court's file." The trial court answered, "So noted." No exhibits were offered at the hearing, and no witnesses testified. The fact that the trial court made findings of fact indicates that the court considered the contents of the file to be in evidence.
The trial court concluded "Mr. Turner had notice of the order establishing the parent-child relationship and manifested an intention to treat it as valid by requesting the termination of withholding in 2013 on the ground that the current support obligation had ended." But none of the findings or conclusions determined when appellant first knew or should have known of the 1991 judgment.
Appellant argues that if the 1991 judgment is a direct attack, then the Attorney General has not demonstrated that the judgment is final. There is no presumption of finality from a default judgment. In re Burlington Coat Factory Warehouse of McAllen, Inc., 167 S.W.3d 827, 829 (Tex. 2005). A judgment is final "if and only if either it actually disposes of all claims and parties then before the court, regardless of its language, or it states with unmistakable clarity that it is a final judgment as to all claims and all parties." Bison Bldg. Materials, Ltd. v. Aldridge, 422 S.W.3d 582, 585 (Tex. 2012) (quoting Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex. 2001)). Appellant asserts that the 1991 judgment, although requested by both appellant and the Attorney General, is not in the record and that we cannot determine whether the 1991 judgment is final. The appellate record has since been supplemented, and the 1991 judgment is before us. Comparison of the 1991 judgment to the 1990 petition to establish the parent-child relationship shows the 1991 judgment disposed of all parties and all claims. Therefore, the 1991 judgment is a final judgment.
Collateral Attack
Although appellant's attack on the 1991 judgment constituted a direct attack based on the supreme court's definitions of these terms in Browning and PNS Stores, we observe that the supreme court performed a collateral-attack analysis in PNS Stores despite the fact that the case was a direct attack according to the definitions in PNS Stores. Moreover, this Court, after the supreme court issued PNS Stores, has stated, "When a bill of review fails as a direct attack, it may instead constitute a collateral attack." In re D.S., No. 05-17-01066-CV, 2018 WL 1835695, at *4 (Tex. App.—Dallas Apr. 18, 2018, no pet. h.) (citing Fender v. Moss, 696 S.W.2d 410, 412 (Tex. App.—Dallas 1985, writ ref'd n.r.e.) (when petition failed to prove element of bill of review, "the attack on the judgment becomes a collateral rather than a direct attack")). Therefore, in compliance with our own precedent and the supreme court's actions, we also review appellant's attack on the 1991 judgment as a collateral attack.
A collateral attack must prove the judgment being attacked is void. Hagen v. Hagen, 282 S.W.3d 899, 902 (Tex. 2009). A judgment is void when "the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act." PNS Stores, 379 S.W.3d at 272 (quoting Travelers Ins. Co. Joachim, 315 S.W.3d 860, 863 (Tex. 2010)). A judgment is void due to lack of personal jurisdiction, and thus subject to collateral attack, when the failure to establish personal jurisdiction violates due process. Id. at 273. Technical defects in service of process may render a default judgment voidable and not subject to collateral attack. Id. at 274. However, a complete failure or lack of service violates due process. Id.
Appellant argues the evidence shows a complete lack of service on him before the 1991 judgment. The Attorney General argues that even if appellant was not served before the trial court signed the 1991 default judgment, he waived the lack of personal jurisdiction or he is estopped from asserting the invalidity of the 1991 judgment because, in 2013, he implicitly recognized the trial court's jurisdiction over the case and the validity of the prior judgment by seeking the withdrawal of the writ of withholding without asserting the 1991 judgment was void for lack of personal jurisdiction.
A party can waive lack of personal jurisdiction over a prior proceeding leading to a judgment by subsequently recognizing the validity of that judgment through seeking relief in the proceeding without first seeking to have the judgment set aside as void. See Office of the Attorney Gen. of Tex. v. Phillips, No. 01-05-00973-CV, 2007 WL 1559804, at *4 (Tex. App.—Houston [1st Dist.] May 31, 2007, no pet.). In Phillips, the father and mother were married, living in California, and had one child of the marriage. Id. at *1. In 1982, the mother moved to Texas, and the father stayed in California. The California courts ordered the father to pay child support of $125 per month. The mother had another child in Texas whose paternity the father disputed. In 1986, the mother filed for divorce in Texas. The Texas court rendered a default divorce against the father, declared him to be the father of both children, and ordered him to pay child support of $500 per month. In 1991, the father learned of the Texas divorce and child-support order when the Texas Attorney General sent a withholding order to the father's employer. The father then filed in the Texas court a motion to stay delivery of the writ of withholding, asserting he was not behind on child support. In 1992, the trial court issued a default order denying the father's motion to stay, finding a child-support arrearage, and ordering an additional $240 per month be withheld for the arrearage. Id. Thirteen years later, in 2005, the Attorney General sent a notice of levy to the father's bank account for $12,555.38; the father then filed a motion to confirm the amount of the child-support arrearage. Id. at *2. Before the trial court ruled on these motions, the father filed a motion to declare all the previous Texas orders void because the divorce decree was void due to the divorce petition's failure to allege jurisdictional facts and the failure to serve the father. Id. The trial court declared all the previous orders void and ordered the Attorney General to return all money it had levied. Id. The court of appeals disagreed. The court applied section 102.011(b)(2), which provides,
The court may also exercise personal jurisdiction over a person on whom service of citation is required or over the person's personal representative, although the person is not a resident or domiciliary of this state, if:TEX. FAM. CODE ANN. § 102.011(b)(2) (West Supp. 2017). "A party enters a general appearance whenever it invokes the judgment of the court on any question other than the court's jurisdiction; if a defendant's act recognizes that an action is properly pending or seeks affirmative action from the court, that is a general appearance." Phillips, 2007 WL 1559804, at *4. The court of appeals concluded the father had submitted to the jurisdiction of the state by making a general appearance when he filed the 1991 motion to stay the delivery of the writ of withholding and in 2005 when he filed the motion for confirmation of the amount of the arrearage, both filed before he asserted the 1986 divorce judgment was void for want of personal jurisdiction. Id. Both of these pleadings sought affirmative action from the trial court. Id. The court of appeals stated, "Because Phillips consented to the trial court's exercise of personal jurisdiction, we hold that the trial court erred in concluding that the 1986 decree was void because no jurisdictional facts were pled in the divorce petition." Id.
. . . .
(2) the person submits to the jurisdiction of this state by consent, by entering a general appearance, or by filing a responsive document having the effect of waiving any contest to personal jurisdiction . . . .
In this case, appellant argues the trial court lacked personal jurisdiction over appellant in the 1990 paternity action leading to the 1991 default judgment because he was out of state and was not served. As appellant admitted, he became aware of the judgment in 2005 when the Attorney General issued an income withholding order to his employer. In 2013, appellant filed his petition to terminate the income withholding order. The trial court ruled on the request. It was not until 2016 that appellant first asserted that the 1991 default judgment might be void for lack of personal jurisdiction. Applying Phillips to this case, we conclude appellant's seeking affirmative relief in the 2013 action constituted a general appearance waiving any lack of personal jurisdiction in the 1990 proceeding leading to the 1991 default judgment.
Appellant argues that Phillips is distinguishable because the father's 2005 action in that suit was for confirmation of the arrearage, which acknowledged the duty to pay child support. However, the court of appeals did not base its determination on the ground that the 2005 suit acknowledged the duty to pay child support. Instead, the court determined the 1991 and 2005 motions were general appearances because they requested affirmative relief. See id. Although some facts in Phillips are different from this case, the legal principles are the same and lead to the same conclusion.
Appellant also asserts the trial court in Phillips entered a conclusion of law that because the father was not a Texas resident and long-arm jurisdiction was not pleaded, "the subject-matter jurisdiction of a Texas court has not been invoked and the court lacks subject-matter jurisdiction to establish the defendant's paternity of a child or order him to pay child support." Id. at *4 n.1. Appellant argues that subject-matter jurisdiction cannot be waived. However, the court of appeals determined the trial court was in error in stating the defects resulted in a lack of subject-matter jurisdiction because the long-arm statutes authorize the exercise of personal jurisdiction over a defendant. The court of appeals "assume[d] the trial court intended to address personal jurisdiction in its conclusions of law." Accordingly, Phillips does not stand for the proposition that the case concerned a lack of subject-matter jurisdiction instead of personal jurisdiction.
Appellant argues that the Corpus Christi Court of Appeals held that appearing in matters ancillary to the main suit will not waive jurisdiction. See Grynberg v. M-I L.L.C., 398 S.W.3d 864 (Tex. App.—Corpus Christi 2012, pet. denied). What the Corpus Christi court stated was, "Texas courts have recognized that appearing in matters ancillary and prior to the main suit does not constitute a general appearance in the main suit and will not waive a personal-jurisdiction challenge." Id. at 878. This case does not involve such a situation. Even if appellant's 2013 suit for withdrawal of the writ of withholding was "ancillary" to the "main suit," the 1990 suit to establish parentage and order child support, the 2013 suit was not a matter "prior to the main suit." Grynberg is not applicable.
Appellant also cites on In re M.R.M., 807 S.W.2d 779 (Tex. App.—Houston [14th Dist.] 1991, writ denied). In that case, Helen and Kent Marshall were formally married in 1980 and remained married throughout all the subsequent proceedings. Id. at 782. Three years later, the Texas Department of Human Resources filed in Bexar County an original petition in suit affecting the parent child relationship against Helen and the appellant, Jimmy Mack concerning the child, M.R.M. Id. at 781. Although Helen had been married to Kent since 1980, the trial court entered an order that Helen and the appellant had entered into a common-law marriage in 1981, and the order required the appellant to pay support for the child of that "marriage," M.R.M. Id. In 1987, Child Protective Services filed suit in Harris County against Helen and Kent alleging physical abuse of M.R.M. and another child, E.E.M. The Bexar County court granted a motion to transfer its case to the Harris County court. The Harris County court declared the 1981 order in the Bexar County court void and declared the appellant lacked standing to seek conservatorship or possessory rights of M.R.M. The appellant filed a motion for new trial alleging he was the biological father of M.R.M. and that the Bexar County court's support order was not void. The Harris County court denied the motion for new trial. Id. The court of appeals ruled that the Bexar County court's ruling that Helen and the appellant were common-law married was void because Helen was already married to Kent. Id. at 782. Thus, the appellant could not be the presumed father of M.R.M. Id. The Bexar County court did not make any findings that the appellant was the biological father of M.R.M. Id. The court of appeals stated the Harris County court correctly determined the Bexar County support order was void. Id. at 783. The appellant argued the Bexar County court's order could be set aside only by a bill of review in that court, not in the Harris County court, but the court of appeals said that when the case was transferred from Bexar County to Harris County, the Harris County court had the power to enforce or set aside the Bexar County order. Id. at 782.
Although appellant discusses the M.R.M. opinion, he does not explain how M.R.M. shows that a lack of personal jurisdiction cannot be waived by a subsequent general appearance in the case. As appellant observes, "Due process was not the issue" in M.R.M. Appellant states in his reply brief, "The decision in In the Interest of M.R.M. is important as it questions voluntary appearance before the court, but ultimately finds that when there is no jurisdiction over the parties, the order is void." However, M.RM. did not involve the question in this case, whether the lack of personal jurisdiction in a prior judgment way be waived. In M.RM., the Bexar County order was not void because of a lack of personal jurisdiction or violation of the appellant's due process rights. It was void because the declaration that the appellant and Helen were married was void as Helen was already married to Kent; therefore, M.R.M could not have been the child of Helen's marriage to the appellant because no such marriage existed, and the trial court could not have ordered the appellant to pay support as the child's presumed father. This case does not involve any such facts.
Appellant also argues it is "troublesome" that the statutory procedure for review of a writ of withholding necessarily subjects appellant to jurisdiction. The Family Code provides for review of an administrative writ of withholding by the obligor's requesting review from the Title IV-D agency that issued the writ. FAM. § 158.506(a) (West 2014). If the dispute is not resolved, the obligor may file with the court a motion to withdraw the administrative writ of withholding. Id. § 158.506(c). Appellant argues, "This puts the obligor in a no win situation in terms of jurisdiction, if the court did not have original jurisdiction in the underlying suit, then attacking a post-judgment writ of execution waives his claim." We disagree. If the suit for withdrawal of the writ of withholding asserts the underlying parentage judgment was void due to lack of personal jurisdiction because the obligor was never served in the underlying parentage lawsuit and had no notice of that lawsuit before the default judgment, then the suit for withdrawal of the writ of withholding would not be a waiver of the lack of personal jurisdiction in the original lawsuit to establish parentage.
Appellant asserts in his reply brief, "The proceedings from the 2013 hearing did not allow Appellant to raise the issue of jurisdiction; it focuses on the associate judge's rulings." Appellant then cites to Appendix B of the reply brief, which is the reporter's record for a hearing on December 20, 2013. That reporter's record is not part of the record on appeal. We may not consider attachments to briefs that are not part of the appellate record. Wilhoite v. Sims, 401 S.W.3d 752, 762 (Tex. App.—Dallas 2013, no pet.). Moreover, the trial court could not consider the testimony from a prior proceeding unless the transcript of the testimony is properly authenticated and entered into evidence. Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.— Houston [14th Dist.] 2011, no pet.); see also In re C.L., 304 S.W.3d 512, 515 (Tex. App.—Waco 2009, no pet.) ("A trial judge may not even judicially notice testimony that was given at a temporary hearing in a family law case at a subsequent hearing in the same cause without admitting the prior testimony into evidence."). That was not done in this case. Therefore, the December 20, 2013 reporter's record is not part of the evidence in this case, and we may not consider it.
We conclude appellant has not shown the trial court erred by determining appellant waived any objection to a deficiency in personal jurisdiction.
The trial court also made conclusions of law consistent with the application of section 66 of the Restatement (Second) of Judgments. In In re E.R., 385 S.W.3d 552 (Tex. 2012), the supreme court considered the case of a mother whose parental rights were terminated in a default judgment following notice by publication. The supreme court concluded the service by publication deprived the mother of her right to due process. Id. at 563-67. However, the court observed that the mother's challenge to the default termination judgment may be barred by section 66:
Under the Restatement, a party may not challenge an invalid default judgment if, (1) after receiving actual notice of the judgment, she manifested an intention to treat the judgment as valid; and (2) granting relief would impair another person's substantial interest of reliance on the judgment.Id. at 567. The trial court concluded in this case:
8. Mr. Turner had notice of the order establishing the parent-child relationship and manifested an intention to treat it as valid by requesting the termination of withholding in 2013 on the ground that the current support obligation had ended.In this case, appellant waited eleven years, from 2005 to 2016, to challenge the 1991 default judgment as void for lack of service. Appellant does not address the Attorney General's argument under section 66, and he provides no explanation why section 66 should not bar this suit to set aside the 1991 judgment.
9. Granting relief to Mr. Turner would impair the mother's substantial interest of reliance on the judgment by wiping out the child support arrearage and the child's substantial reliance interest by depriving the child of a legal father.
10. Thus, even if the Order to Establish Parent-Child Relationship is invalid, Mr. Turner is barred from challenging it.
We overrule appellant's second issue. We need not address appellant's first issue contending the 1991 judgment is void due to lack of personal jurisdiction.
ADMINISTRATIVE WRIT OF WITHHOLDING PROCEDURE
In his third issue, appellant contends the administrative writ of withholding process violates due process when the writ is issued without notice or a hearing and when the trial court's jurisdiction to enforce a child-support order has expired. Appellant also asserts the judgment expired before the Attorney General began collection of the judgment through a writ of withholding.
The order on appeal is the denial of appellant's motion to vacate the 1991 judgment as void. Appellant did not bring a challenge to the administrative writ of withholding process in the case before us. Appellant sought to have the writ of withholding terminated in his 2013 suit. On December 20, 2013, the trial court dismissed that suit except for ordering that any withholding orders issued since May 3, 2003 were for arrears only. Appellant did not appeal that judgment and it is now final. Appellant's current action does not seek to have the writ of withholding terminated. Accordingly, these arguments do not concern the order on appeal, and we do not consider them. We overrule appellant's third issue.
CHILD SUPPORT
In his fourth issue, appellant contends "[t]here was no evidence of Appellant's income at the time the default [judgment] was entered and the payment records are incomplete and inconsistent regarding the amount due."
In this issue, appellant first challenges the legal sufficiency of the evidence to support the 1991 judgment's requirement that appellant pay child support of $275 per month. A challenge to the sufficiency of the evidence from a nonjury trial may be raised for the first time on appeal. See TEX. R. APP. P. 33.1(d). However, the 1991 judgment is not the order on appeal. The order on appeal is the trial court's order denying appellant's motion to vacate the 1991 judgment as void. A contention that a default judgment lacked sufficient evidentiary support is an argument that the judgment is voidable, not void. See PNS Stores, 379 S.W.3d at 272 ("We have described a judgment as void when 'the court rendering judgment had no jurisdiction of the parties or property, no jurisdiction of the subject matter, no jurisdiction to enter the particular judgment, or no capacity to act.'" (quoting Travelers Ins. Co. v. Joachim, 315 S.W.3d 860, 863 (Tex. 2010))). Appellant's 2016 motion to vacate the 1991 judgment did not assert that the 1991 judgment was voidable or that the evidence was insufficient to support the judgment. Therefore, the sufficiency of the evidence to support the 1991 judgment is not before us, and we do not address it.
Appellant then asserts, "The records of The Office of the Attorney General are inconsistent in the amounts to be paid." Appellant did not raise this argument in the trial court. The order before us on appeal concerns only whether the 1991 judgment is void. The amount appellant owes, if any, for child support arrears is not part of the order on appeal. Accordingly, we do not address that argument.
We overrule appellant's fourth issue.
CONCLUSION
We affirm the trial court's judgment. 170085F.P05
/Lana Myers/
LANA MYERS
JUSTICE
JUDGMENT
On Appeal from the 302nd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-90-20472.
Opinion delivered by Justice Myers. Justices Lang-Miers and Boatright participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellees Rhonda D. Reed and the Office of the Attorney General of Texas recover their costs of this appeal from appellant Clyde D. Turner, Jr. Judgment entered this 5th day of June, 2018.