1 In The 

### Court of Appeals Ninth District of Texas at Beaumont

__________________ N O
. 09
- 20
- 00047
- CV

__________________ MARK EDWARD ATHANS , Appellant
V.
CHARITY ATHANS , Appellee

__________________________________________________________________ On Appeal from the 284 t h District Court Montgomery County, Texas Trial Cause No. 19
- 09
- 13162
- CV

__________________________________________________________________ MEMORANDUM OPINION Appellant Mark Edward Athans (“Mark”) argues that the trial court erred by sua sponte dismissing his lawsuit to have a marriage declared void because of bigamy for want of jurisdiction

. We affirm the trial court’s judgment

. BACKGROUND
In March 2019, the County Court at Law N umber 3 (hereafter referred to as the “original trial court”) of Montgomery County, Texas, granted Mark ’s petition for divorce against Charity Athans (“Charity”) , and in the Final Decree of Divo r ce ,2 the original trial court denied Mark’s request for an annulment of f raud and awarded Charity certain property and monies

. 1 In April 2019, a Montgomery County gra nd jury indicted Charity for bigamy, and the indictment alleged that Charity was still legally married to another man when she married Mark in August 2017

. In June 2019, the original trial court entered an Order on Motion for Temporary Orders Pending Appea l, ordering Mark to pay Charity’s attorney’s fees as well as spousal support. In July 2019, Charity filed a F irst Amended P etition for Enforcement of
Pr operty D ivision and Enforcement of Temporary Order s Pending Appeal. In September 2019, Mark filed an Original Petition and Application for Temporary Restraining Order and Temporary Injunction against Charity , alleging that the current trial court had jurisdiction under section 6.307 of the Texas Family Code to declare his marriage with Charity v oid because (1) the purported marriage was contracted in Texa s, and (2) both he and Charity are domiciled in Texas. See Tex. Fam. Code Ann. § 6.307. According to Mark’s petition, when he and Charity

1 We note that this Court has dealt with the Athans’s divorce on two prior occasions , and neither case is relevant to th e outcome in th is appeal . In July 2019, this Court granted Mark Athans’s motion to dismiss his appeal from the County Court at Law No. 3. See Athans v. Athans , No. 09

- 19

- 00152

- CV, 2019 WL 3330591, at *1 (Tex. Ap p.

— Beaumont July 25, 2019, no pet.). In April 2020, this Court conditionally granted Mark ’s petition seeking mandamus relief, in which Mark request ed that the trial court vacate its order granting Charity Athan s ’s motion to enforce the property division pr ovisions and holding Mark in contempt. See In re Athans , No. 09

- 20

- 00074

- CV, 2020 WL 1770903, at *1, *3 (Tex. App.

— Beaumont Apr

. 9, 2020 , orig. proceeding).3 purportedly married on Aug ust 7, 2017 , Charity was still legally married to at least two other men , resulting in their marriage being void under section 6.202 of the Texas Family Code. See id. § 6.202. Mark alleged that he did not know Charity was married to the other men when he filed for divo r ce in 2018 or when the original trial
court entered a Final Decree of Divorce in 2019. Mark also allege d that the Final Decree of Divorce and the June 2019 Reformed Order on Motion for Temporary Orders Pending Appeal are void and must be set aside because his purpor ted marri age to Charity is void under section 6.202 of the Family Code and has no legal effect in Texas

. See id

. According to Mark, since his marriage is void, the original trial court did not have jurisdiction to grant him a divorce o r divide the communit y
estate. On January 14, 2020, Charity pleaded guilty to bigamy and was pl aced on deferred adjudication community supervision for a period of four years and assessed a $500 fine. On January 29, 2020, the current trial court entered an Amended Show Cause Order on the Court’s Motion to Dismiss for Want of Prosecution , order ing the parties to appear and show cause why Mark’s Original Petition and Application for Temporary Restraining Order and Temporary Injunction should not be dismissed for want of ju risdiction. On Fe bruary 3, 2020, Charity filed an Original A nswer , entering a general denial and raising the affirmative defense of res judicata. On February 6, 2020, Mark filed a Response to the Amended Motion to Show Cause, arguing his4 lawsuit is a colla teral attack on a void d ivorce d ecree because of bigamy and that the original trial court lacked subject

- matter jurisdiction to grant the di vorce
. Attached
to Mark ’s response is a December 2019 Order for Decree of Nullity entered by the Fourth Judicial Cir cuit Court of South Dakota , ordering that : (1) M ark had no knowledge of Charity’s prior marriages when he married Charity in Lawrence County , South Dakota on August 7, 2017 ; a nd (2) the marriage between Mark and Charity is null and void from the beginning. Mark argued that the current trial court ha s jurisdiction to declare the Final Decree of Divorce void and requested the trial court to vacate, set aside, and otherwise not enforce t he Final Decree of Divorce or any enforcement orders.
On February 7, 2020, the current trial court signed an Order Dismissing Case for Want of Jurisdiction and found that it is undisputable the original trial court ha d jurisdiction over Mark’s Petition fo r D ivorce and to sign the Final Decree of Di vorce and that the voidness of the marriage does not translate into the voidness of any judgment. The current trial court noted tha t the proper remedy in cases where a final judgment results when certain facts are fraudulently withheld is to file a b ill of

r eview, and the record shows that Mark’s counsel was h ired to file a b ill of r eview but chose to file this lawsuit instead. The current trial court dismissed Mark’s lawsuit for want of jurisdiction, find ing that it is apparent that there may be a remedy for5 Mark, just not one via this lawsuit alleging that the original trial court lacked jurisdiction.
ANALYSIS On appeal, Mark contends that the trial court erred by sua sponte dismissing his lawsuit for want of jurisdiction. In three sub

- issues, Mark questions whether (1) the original trial court had subject

- matter jurisdiction t o render the Final Decree of Divorce , (2) he was required to file a b ill of r eview to attac k the Fin al Decree of Divorce, and (3) section 6.307 of the Family Code invoked the current trial court ’ s jurisdiction. The question of whether a court has subject

- matter jurisdiction is a question of law, and a trial court ’s order dismissing a cause for want of jurisdiction is reviewed de novo . See Graber v. Fuqua , 279 S.W.3d 608, 631 (Tex. 2009) (Wainwright, J., dissenting) ; Tex. Dep’t of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 226 (Tex. 2004). A plaint i ff’s petition must state facts which affirmatively show the juri sdiction of the court in which the action i s brought. Richardson v. First Nat’l Life Ins. Co. , 419 S.W. 2d 836 , 839 (Tex. 1967) ; see also Tex. Ass’n of Bus

. v. Tex. Air Control Bd. , 852 S.W.2d 440, 446 (Tex. 1993). When reviewing a trial court ’s order dismissing a case for want of jurisdiction , we construe the pleadings in favor of the plaintiff and look at the pleader’s intent. Tex. Ass’n of Bus

. , 852 S.W.2d at
446 (citations omitted)

.6 A judgment may be challenged as void through a direct or collateral attack. In re Thompson , 569 S.W.3d 169, 17 2 (Tex. App.

— Houston [1 st Dist.] 2018, orig. proceeding). A direct attack may take the form of (1) a pleading filed under the original cause numbe r while the trial court has plenary power, or (2) after the trial court loses plenary power, a pleading filed under a new cause number that qualifies as a bill of review and is filed within four years of the judgment. Id. ; see also Tex

. R. Civ. P. 329b ( pr oviding th e timeli nes that a trial court has plenary power to vacate, modify, correct, or reform the judgment within thirty days after the judgment is signed ). Once plenary power has expired, generally, a trial court cannot set aside a judgment in a direct attack except by a bill of review. See Tex. R. Civ. P. 329b(f);
Cottone v. Cottone , 122 S.W.3d 211, 213 (Tex. App.

— Houston [1st Dist.] 2003 , no pet.) (stating that a bill of review in the court rendering the judgment is the exclusive remedy to attack the judgment). After the time period to bring a direct attack has expired, the petitioner may only attack the judgment collaterally by initiatin g a new case under a different cause number that challenges the effect of the original judgment. In re Thompson , 569 S.W.3d at 17 2

. “As with other final, unappealed judgments which are regular on their face, divorce decrees and judgments are not vulnerab le to collateral attack.” Hag e n v. Hag e n , 282 S.W.3d 899, 902 (Tex. 2009) (citation omitted) . “Although a final judgment may be erroneous or voidable, it is not void and thus subject to collateral7 attack if the court had jurisdiction of the parties and sub ject matter.” Berry v. Berry , 786 S.W.2d 672, 673 (Tex. 1990) (citations omitted) . Thus, errors other than lack of jurisdiction over the parties or the subject matter render the judgment voidable and may be corrected only through a direct attack. In re Tho mpson , 569 S.W.3d at 172; Hag e n , 282 S.W.3d at 902. A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is not void on the face of the record and is no longer subject to challenge by a motion for new trial or appeal

. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 751 (Tex. 2003); Caldwell v. Barnes , 975 S.W. 2d 535,
537 (Tex. 1998)

. A bill of review is a separate and independent suit , brought in the same court that entered the judgment being attacked under a different cause number. In re Thompson , 569 S.W.3d at 173

- 74. Generally, to set aside a judgment by a bill of review, a petitioner must plead and prove (1) a meritorious defense t o the cause of action alleged to support the judgment, (2) that he was prevented from making by the fraud, accident of wrongful act of his opponent, and (3) unmixed with any fault or negligen ce on petitioner’s part. Chapman , 118 S.W.3d at 752; Caldwell , 97 5 S.W.2d at 537. Where the suit attacking a former judgment is commenced in the wrong court, but there is an order transferring the cause to the proper court and invoking the jurisdiction of the court which entered the improper judgment, jurisdiction is pr operly in that court and the jurisdiction relates back to the original filing of the suit.8 Ragsdale v

. Ragsdale , 520 S.W.2d 839, 841, 844 (Tex. Civ. App.

— Fort Worth 1975, no writ) (citations omitted) (explaining that the district court entered an order
t ransferring the case back to the Domestic Relations Court No. 1 on the grounds that the cause of action constituted a collateral attack on the prior divorce decree). First, we note that Mark cannot collaterally attack the Final Decree of Divorce because he has not shown that it is void due to the original trial court not having jurisdiction over the parties and subject matter or acting outside of its capacity as a
court. See Hag e n , 282 S.W.3d at 902; In re Thompson , 569 S.W.3d at 172; Cottone , 122 S.W.3d at 214. Secondly, since Mark failed to show that the Final Decree of Divorce is void and thus subject to a collateral attack , section 6.307 of the Family Code , which give s a trial court jurisdiction to declare a marriage void in a collateral proceeding , does not apply in this case. See Tex. Fam. Code. Ann. § 6.307 ; Berry , 786 S.W.2d at 673

. Moreover, since the original trial court’s plenary power has expired, a bill of review filed in the original trial court is Mark’s exclusive remedy for direc t ly attacking the Final Decree of Divorce. See Tex. R. Civ. P. 329b(f); Hag e n , 282 S.W.3d at 902; In re Thompson , 569 S.W.3d at 172; Cottone , 122 S.W.3d at 213

. Even if in the interest of justic e , we construed Mark’s pleading s in his Original Petition and Application for Temporary Restraining Order and Temporary Injunction t o be sufficient to allege a relief under a bill of review , Mark’s lawsuit9 still does not qualify a s a bill of review because it was not filed in the original trial court rendering the Final Decree of Divorce. See Tex. R. Civ. P. 71; In re Thompson , 569 S.W.3d at 173

- 74; Cottone , 122 S.W.3d at 213; Ragsdale , 520 S.W.2d at 841,
844. S ince the current trial court did not render the Final Decree of Divorce, it did
not have jurisdiction to set aside the Final Decree of Divorce

. See Cottone , 122 S.W.3d at 213 ; see also Ragsdale , 520 S.W.2d at 8 41, 844

. Accordingly, w e conclude that the trial co urt did not err by sua sponte dismissing Mark’s lawsuit for want of jurisdiction. We affirm the trial court’s judgment. AFFIRMED.

_________________________ W. SCOTT GOLEMON Chief Justice

Submitted on August 10, 2021 Opinion Delivered January 13, 2022 Before Golemon , C.J., Horton and Johnson, JJ.