Affirmed; Opinion Filed February 6, 2019.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-18-00451-CV

                      IN THE INTEREST OF N.E.S., A MINOR CHILD

                       On Appeal from the 397th Judicial District Court
                                   Grayson County, Texas
                             Trial Court Cause No. FA-15-0165

                              MEMORANDUM OPINION
                    Before Justices Partida-Kipness, Pedersen, III, and Carlyle
                                    Opinion by Justice Carlyle

       Father appeals the trial court’s order modifying terms of support, conservatorship, and

possession of N.E.S., a minor child of Father and Mother. In his sole issue on appeal, Father

contends the trial court lacked subject matter jurisdiction to render the challenged order and a prior

decree of divorce respecting Father and Mother. We decide against Father on his issue. The trial

court’s order is affirmed.

                        I. FACTUAL AND PROCEDURAL CONTEXT

       N.E.S. was born in 2011. On April 16, 2012, an associate judge in the 15th District Court

of Grayson County, Texas, signed an agreed “Child Support Review Order” (the “2012 Order”) in

a suit affecting the parent–child relationship (“SAPCR”) regarding N.E.S. Father and Mother

(unmarried at the time) and the Office of the Attorney General for the State of Texas were parties
to that suit and all appeared. The 2012 Order contained terms of support, conservatorship, and

possession respecting N.E.S.

       In January 2013, Father and Mother were married. On February 6, 2015, Mother,

proceeding pro se, filed a petition for divorce in the 397th District Court of Grayson County, Texas

(the “trial court”). Mother used a form document that stated in part,

       (Check box below only if true.)
       □ There are no court orders about any of the children listed above. No other Court
       has continuing jurisdiction over this case or the children.

Mother did not check that box. Mother’s petition requested orders for support, conservatorship,

and possession of N.E.S. Father was served by publication and did not file an answer or otherwise

appear. Instead, Father filed a February 23, 2015 lawsuit in California seeking custody of N.E.S.

The California court dismissed that case for lack of jurisdiction prior to the trial court rulings he

challenges here. On May 19, 2015, the trial court here signed a final decree of divorce that

(1) stated in part “[t]he Court, after receiving evidence, ﬁnds that it has jurisdiction of this case”

and (2) contained provisions respecting support, conservatorship, and possession of N.E.S.

       After receiving notice of the final decree of divorce, Father filed a June 27, 2017 “Motion

to Modify in SAPCR” in the trial court. In that motion, Father stated in part (1) “Petitioner is the

father of the child and has standing to bring this suit,” and (2) “[t]his Court has continuing,

exclusive jurisdiction of this suit.” At the hearing on Father’s motion to modify, both Father and

Mother appeared and were represented by counsel.

       On January 18, 2018, the trial court signed a document titled “Final Orders in SAPCR,”

which contained terms of support, conservatorship, and possession of N.E.S. (the “2018 Order”).

That order stated in part, “The Court, after examining the record and hearing the evidence and

arguments of counsel, finds that all prerequisites of law have been legally satisfied and that the

Court has jurisdiction of this cause and of the parties.” The court denied Father’s modification.

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       Father filed a timely request for findings of fact and conclusions of law respecting the 2018

Order. That request stated in part, “[Father] requests that the Court’s findings and conclusions

include . . . the Court’s findings that determine that no other court has continuing, exclusive

jurisdiction of this case.” Twelve days later, Father filed a motion for new trial that stated in part,

“A new trial should be granted because the Court lacked subject jurisdiction over the parties and

the child the subject of this suit at the time the above judgment was rendered.” He did not elaborate.

       Father’s motion for new trial was overruled by operation of law. The trial court issued

findings of fact and conclusions of law that stated in part (1) “[t]his case originated as a divorce in

this Court,” (2) “[t]he Court granted a divorce and awarded primary custody to Mother,”

(3) “Father then filed the instant SAPCR asking the Court to modify its previous ruling,” and

(4) “[n]o challenge to the Court’s jurisdiction—either original or continuing—was raised by either

party at any time in this action.” Despite his lack-of-subject-matter-jurisdiction assertion in the

motion for new trial, Father failed to request amended findings of fact and conclusions of law. See

TEX. R. CIV. P. 298. This appeal timely followed.

                           II. SUBJECT MATTER JURISDICTION

       Subject matter jurisdiction is a question of law and is reviewed de novo. See, e.g., Tex.

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993). It “is an issue that may

be raised for the first time on appeal; it may not be waived by the parties.” Id. “A judgment

rendered without subject-matter jurisdiction is void and subject to collateral attack.” Engelman

Irrigation Dist. v. Shields Bros., Inc., 514 S.W.3d 746, 750 (Tex. 2017). But “[e]rrors that make a

judgment voidable are subject to waiver and must be preserved pursuant to Texas Rule of

Appellate Procedure 33.1.” In re M.L.G.J., No. 14-14-00800-CV, 2015 WL 1402652, at *3 (Tex.

App.—Houston [14th Dist.] Mar. 24, 2015, no pet.) (mem. op.).




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       Further, we review issues of statutory construction de novo. Molinet v. Kimbrell, 356

S.W.3d 407, 411 (Tex. 2011). When construing a statute, our primary objective is to ascertain and

give effect to the Legislature’s intent. TGS–NOPEC Geophysical Co. v. Combs, 340 S.W.3d 432,

439 (Tex. 2011). “We presume that the Legislature chooses a statute’s language with care,

including each word chosen for a purpose, while purposefully omitting words not chosen.” Id.

(citing In re M.N., 262 S.W.3d 799, 802 (Tex. 2008)). “When the statutory language is plain, the

sole function of the courts—at least where the disposition required by the text is not absurd—is to

enforce it according to its terms.” Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 291,

296 (2006).

       Suits affecting the parent–child relationship are governed by Title 5 of the Texas Family

Code. See TEX. FAM. CODE ANN. §§ 101.001–266.013. Chapter 155’s subchapter A, part of Title

5, states in part: “Except as otherwise provided by this section, a court acquires continuing,

exclusive jurisdiction over the matters provided for by this title in connection with a child on the

rendition of a final order.” Id. § 155.001(a). In that event, “no other court of this state has

jurisdiction of a suit with regard to that child” except as provided by Chapter 155 and several other

family code provisions not applicable in this case. Id. § 155.001(c).

       Additionally, Chapter 155’s subchapter B requires that “[t]he petitioner or the court shall

request from the vital statistics unit identification of the court that last had continuing, exclusive

jurisdiction of the child in a suit unless: (1) the petition alleges that no court has continuing,

exclusive jurisdiction of the child and the issue is not disputed by the pleadings; or (2) the petition

alleges that the court in which the suit or petition to modify has been filed has acquired and retains

continuing, exclusive jurisdiction of the child as the result of a prior proceeding and the issue is

not disputed by the pleadings.” Id. § 155.101. “If a court in which a suit is filed determines that




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another court has continuing, exclusive jurisdiction of the child, the court in which the suit is filed

shall dismiss the suit without prejudice.” Id. § 155.102.

           That said, a court shall have jurisdiction over a suit if (1) it has been incorrectly informed

by the vital statistics unit that the child has not been the subject of a suit, (2) the petition states that

no other court has continuing, exclusive jurisdiction over the child, and (3) the vital statistics unit

does not notify the court of the mistake prior to the rendition of a final order. Id. § 155.103. Section

155.104, “Voidable Order,” has two subsections, (a) and (b). Only 155.104(b) is relevant here: “If

a final order is rendered in the absence of the filing of the information from the vital statistics unit,

the order is voidable on a showing that a court other than the court that rendered the order had

continuing, exclusive jurisdiction.”1

           In his sole issue on appeal, Father contends the 397th District Court lacked subject matter

jurisdiction because the 15th District Court had continuing, exclusive jurisdiction. Specifically,

Father asserts in part (1) “[n]o request for information from the vital statistics unit was ever made,

so the Trial Court could not have relied on incorrect information from the vital statistics unit,” and

(2) “[o]rders issued in an action brought under Title 5 of the Texas Family Code regarding a child

that are rendered by a court other than the court with continuing, exclusive jurisdiction over that

child are void for a lack [of] subject-matter jurisdiction.”

           The parties agree that no vital-statistics-unit information was filed in this case. As

described above, “If a final order is rendered in the absence of the filing of the information from

the vital statistics unit, the order is voidable on a showing that a court other than the court that

rendered the order had continuing, exclusive jurisdiction.” Id. § 155.104(b). That provision

addresses only the “absence of the filing” of information. It does not require any request for



     1
       Section 155.104(a) states: “If a request for information from the vital statistics unit relating to the identity of the court having continuing,
exclusive jurisdiction of the child has been made under this subchapter, a final order, except an order of dismissal, may not be rendered until the
information is filed with the court.”

                                                                        –5–
information to have been made for an order to be “voidable.” See S.C. v. Tex. Dep’t of Family &

Protective Servs., No. 03-12-00518-CV, 2013 WL 150290, at *3 (Tex. App.—Austin Jan. 10,

2013, pet. denied) (mem. op.) (where parties and trial court failed to request or file vital statistics

information required by family code, section 155.104(b) was applicable and thus SAPCR order

was “voidable” rather than void); Combs, 340 S.W.3d at 439 (“We presume that the Legislature

chooses a statute’s language with care, including each word chosen for a purpose, while

purposefully omitting words not chosen.”). Because the trial court rendered a final order in the

absence of the filing of vital-statistics-unit information, we conclude the divorce decree and 2018

Order in this case were “voidable.” See FAM. CODE § 155.104(b); S.C., 2013 WL 150290, at *3.

       “Errors that make a judgment voidable are subject to waiver and must be preserved

pursuant to Texas Rule of Appellate Procedure 33.1.” In re M.L.G.J., 2015 WL 1402652, at *3;

see TEX. R. APP. P. 33.1 (as prerequisite for presenting complaint for appellate review, record must

show complaint was made to trial court by timely request, objection, or motion that stated grounds

with sufficient specificity). Father did not appear in the divorce proceeding, instead taking his

chances in a California court. And once he appeared, Father did not mention the 2012 Order in any

pleading. Instead, he consistently asserted the trial court had continuing, exclusive jurisdiction.

       Only after the trial court ruled against him on his modification request did Father state—

for the first time in his motion for new trial—that the trial court “lacked subject jurisdiction over

the parties and the child the subject of this suit at the time the above judgment was rendered.” That

was all he said. Father failed to mention the 2012 Order in that motion for new trial. He failed to

mention the 2012 Order in his request for findings of fact and conclusions of law. And he failed to

make the 2012 Order part of the trial court record. The 2012 Order appears for the first time in the

clerk’s record before this Court. See TEX. R. APP. P. 34.5(b).




                                                 –6–
       “A timely objection is one made at such a point in the proceedings that the trial court has

the opportunity to cure any alleged error.” In re J.M.M., No. 05-15-01198-CV, 2017 WL 1536509,

at *1 (Tex. App.—Dallas Apr. 26, 2017, pet. denied) (mem. op.) (concluding complaints raised in

motion for new trial were not timely and were not preserved for review). Had Father presented his

jurisdictional complaint to the trial court with some explanation, it could have considered transfer.

See FAM. CODE § 155.201. He did not. Because Father never provided the trial court the necessary

specificity to allow that court to cure the alleged error, and because the specific grounds were not

at all apparent from the context, he did not preserve the alleged error for this Court’s review. See

S.C., 2013 WL 150290, at *3; TEX. R. APP. P. 33.1.

                                       III. CONCLUSION

       We decide against Father on his sole issue. The trial court’s order is affirmed.


                                                              /Cory L. Carlyle/
                                                              CORY L. CARLYLE
                                                              JUSTICE




180451F.P05




                                                –7–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE INTEREST OF N.E.S., A MINOR                  On Appeal from the 397th Judicial District
 CHILD                                               Court, Grayson County, Texas
                                                     Trial Court Cause No. FA-15-0165.
 No. 05-18-00451-CV                                  Opinion delivered by Justice Carlyle.
                                                     Justices Partida-Kipness and Pedersen, III
                                                     participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

      It is ORDERED that appellee Z’Taj Dixon recover her costs of this appeal from appellant
Roscoe Smith Jr.


Judgment entered this 6th day of February, 2019.




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