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In The

Court of Appeals

Ninth District of Texas at Beaumont

__________________

NO. 09-20-00047-CV

__________________

MARK EDWARD ATHANS, Appellant

V.

CHARITY ATHANS, Appellee

__________________________________________________________________

On Appeal from the 284th 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 Number 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 Divorce,
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the original trial court denied Mark’s request for an annulment of fraud and awarded 

Charity certain property and monies.1 In April 2019, a Montgomery County grand 

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 Appeal, ordering Mark to pay Charity’s attorney’s fees as well as spousal 

support. In July 2019, Charity filed a First Amended Petition for Enforcement of 

Property Division and Enforcement of Temporary OrdersPending 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 void because (1) the purported marriage 

was contracted in Texas, 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 

1We note that this Court has dealt with the Athans’s divorce on two prior 

occasions, and neither case is relevant to the outcome in this 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. App.—Beaumont July 25, 2019, no pet.). In April 2020, this Court 

conditionally granted Mark’s petition seeking mandamus relief, in which Mark 

requested that the trial court vacate its order granting Charity Athans’s motion to 

enforce the property division provisions 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).
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purportedly married on August 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 divorce in 2018 or when the original trial 

court entered a Final Decree of Divorce in 2019. Mark also alleged 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 purported 

marriage 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 or divide the community 

estate. 

On January 14, 2020, Charity pleaded guilty to bigamy and was placed 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, ordering the 

parties to appear and show cause why Mark’sOriginal Petition and Application for 

Temporary Restraining Order and Temporary Injunction should not be dismissed for 

want of jurisdiction. On February 3, 2020, Charity filed an Original Answer, 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 his 
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lawsuit is a collateral attack on a void divorce decree because of bigamy and that the 

original trial court lacked subject-matter jurisdiction to grant the divorce. Attached 

to Mark’s response is a December 2019 Order for Decree of Nullity entered by the 

Fourth Judicial Circuit Court of South Dakota, ordering that: (1) Mark had no 

knowledge of Charity’s prior marriages when he married Charity in Lawrence 

County, South Dakota on August 7, 2017; and (2) the marriage between Mark and 

Charity is null and void from the beginning. Mark argued that the current trial court 

has jurisdiction to declare the Final Decree of Divorce void and requested the trial 

court to vacate, set aside, and otherwise not enforce the 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 had 

jurisdiction over Mark’s Petition for Divorce and to sign the Final Decree of Divorce 

and that the voidness of the marriage does not translate into the voidness of any 

judgment. The current trial court noted that the proper remedy in cases where a final 

judgment results when certain facts are fraudulently withheld is to file a bill of 

review, and the record shows that Mark’s counsel was hired to file a bill of review 

but chose to file this lawsuit instead. The current trial court dismissed Mark’s lawsuit

for want of jurisdiction, finding that it is apparent that there may be a remedy for 
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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 to render the Final Decree of 

Divorce, (2) he was required to file a bill of review to attack the Final 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 plaintiff’s petition must state facts which affirmatively show 

the jurisdiction of the court in which the action is 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).
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A judgment may be challenged as void through a direct or collateral attack. In 

re Thompson, 569 S.W.3d 169, 172 (Tex. App.—Houston [1st Dist.] 2018, orig. 

proceeding). A direct attack may take the form of (1) a pleading filed under the 

original cause number 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 (providing the timelines 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 initiating a new 

case under a different cause number that challenges the effect of the original 

judgment. In re Thompson, 569 S.W.3d at 172. 

“As with other final, unappealed judgments which are regular on their face, 

divorce decrees and judgments are not vulnerable to collateral attack.” Hagen v. 

Hagen, 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 collateral 
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attack if the court had jurisdiction of the parties and subject 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 Thompson, 569 S.W.3d at 172; 

Hagen, 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 to 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 negligence on petitioner’s part. Chapman, 118 S.W.3d at 752; Caldwell, 975 

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 properly in that court and the jurisdiction 

relates back to the original filing of the suit.
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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 

transferring 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. SeeHagen, 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 gives 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 directly attacking the Final Decree of Divorce. See Tex. R. Civ. P. 329b(f); 

Hagen, 282 S.W.3d at 902; In re Thompson, 569 S.W.3d at 172; Cottone, 122 

S.W.3d at 213. 

Even ifin the interest of justice, we construed Mark’s pleadingsin his Original 

Petition and Application for Temporary Restraining Order and Temporary 

Injunction to be sufficient to allege a relief under a bill of review, Mark’s lawsuit 
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still does not qualify as a bill of review because it was not filed in the original trial 

court rendering the Final Decree of Divorce. SeeTex. 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. Since 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 841, 844. Accordingly, we

conclude that the trial court 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.