                                       In The

                                Court of Appeals

                     Ninth District of Texas at Beaumont

                               __________________

                               NO. 09-20-00074-CV
                               __________________


                             IN RE MARK ATHANS

__________________________________________________________________

                          Original Proceeding
        County Court at Law No. 3 of Montgomery County, Texas
                   Trial Cause No. 18-01-01228-CV
__________________________________________________________________

                          MEMORANDUM OPINION

      By statute, Texas law provides “[a] marriage is void if entered into when either

party has an existing marriage to another person that has not been dissolved by legal

action or terminated by the death of the other spouse.” 1 In this original proceeding,

the relator (Mark Athans) contends in his petition seeking mandamus relief that the

trial court abused its discretion by enforcing the decree in his divorce from Charity

Athans and holding him in contempt because he intentionally refused to comply with


      1   Tex. Fam. Code Ann. § 6.201.
                                          1
the terms of the decree. According to Mark, while hearing Charity Athans’s motion

to enforce the property division provisions in their final decree, the trial court abused

its discretion by

          • excluding his evidence showing Charity was already married when she
            married him;
          • refusing to recognize the decree providing for his divorce is void;
          • enforcing a void decree;
          • relying on Charity’s argument claiming Mark waived his right to raise
            a claim of bigamy by failing to have pleaded the defense before the trial
            court signed the decree in their divorce;
          • concluding he could not argue the decree in their divorce was void
            because he raised the defense of bigamy in a motion for new trial
            following their divorce but then allowed the decree to become final by
            failing to follow through with his appeal.

      We conclude that, by refusing to admit the evidence Mark offered to support

his defense that Charity was married to another when they married, the trial court

abused its discretion when it decided Charity’s motion to enforce. Consequently, we

conditionally grant Mark’s request for mandamus relief from the order at issue here.

                                     Background

      Mark and Charity married in August 2017. In January 2019, Mark sued

Charity for divorce. In March 2019, the trial court signed a final decree dividing the

parties’ martial estate. Among other things, the decree provides Mark must pay

Charity the sum of $40,000 on or before April 12, 2019.



                                           2
      In April 2019, Mark moved for a new trial. In his motion, Mark alleged that

he discovered Charity had been arrested and charged with bigamy shortly after the

court signed the decree. Mark also claimed that, during the divorce proceedings,

Charity had lied about her prior marriages in her deposition. After considering the

evidence Mark attached to his motion for new trial, the judge who granted the

divorce denied Mark’s motion for new trial. Mark perfected an appeal from the

judgment of divorce. In June 2019, while the case was on appeal, the judge who

signed the decree signed an order granting Charity’s request for temporary support

pending the outcome of Mark’s appeal. The temporary order required Mark to pay

Charity $15,000 in temporary and retroactive support by July 1, 2019. The day after

the support payment became due, Mark moved to dismiss his appeal. In July 2019,

this Court granted Mark’s request and dismissed his appeal.2

      In July 2019, Charity filed a petition to enforce the decree of divorce and the

temporary order for support. In her petition, Charity alleged Mark had not complied

with the court’s orders because he failed to pay the sums the court required from

Mark by the required deadlines set out therein. In Charity’s motion, she asked the

trial court to find Mark in contempt and to send him to jail. Mark answered the



      2
     Athans v. Athans, No. 09-19-00152-CV, 2019 WL 3330591, at *1 (Tex.
App.—Beaumont July 25, 2019, no pet.) (mem. op.).
                                     3
petition to enforce, alleging the trial court could not enforce the decree because

Charity was married to another man when she married him. Mark argued that Charity

could not legally marry him and that fact rendered “the parties’ purported marriage

[] void and of no legal effect under Texas law[.]”

      The court tried the enforcement action in January 2020. Following the trial,

the trial court found Mark in contempt and sentenced him to five days in jail. Then,

the trial court suspended Mark’s sentence and placed him on community supervision

for twenty-four months, conditioning Mark’s community supervision on his paying

Charity $25,000 in monthly installments 3 and paying Charity $9,000 in retroactive

spousal support.

      Several days later, the trial court provided the parties with written findings,

which explain the court’s rulings. They reflect the trial court found the evidence

Mark offered during the hearing the court held on Charity’s motion to enforce

inadmissible because the court viewed Mark’s evidence as irrelevant because it was

offered to support an affirmative defense that collaterally attacked the validity of the

trial court’s decree granting the divorce. The trial court also found that it had subject



      3 For the property division amounts awarded in the decree, the order enforcing
the decree requires the obligation to be discharged at the rate of $1,500 per month.
The trial court required Mark to pay the retroactive-spousal-support awarded in the
temporary order by March 2, 2020.
                                          4
matter jurisdiction over the divorce action and that Mark invoked the court’s

jurisdiction by suing Charity for a divorce. Finally, the court’s findings reflect that

Mark could not, in defending against Charity’s motion to enforce, collaterally attack

the validity of a final decree.

                                       Analysis

      A claim that a marriage is void from its inception may be raised in collateral

proceedings. 4 To our knowledge, no court has held that an allegedly void marriage

cannot be raised as a defense in a motion seeking to enforce an allegedly void decree.

A trial court’s order of contempt “is void if it is beyond the power of the court or

violates due process.” 5 Here, by excluding Mark’s evidence, the trial court deprived

Mark of the opportunity to present evidence to support his claim that he did not

willfully violate the decree and the trial court’s temporary order of support pending

the appeal that Mark voluntarily dismissed.

      Since at least 1877, the rule in Texas has been that “[w]hen, however, the

judgment is not merely erroneous, but an absolute nullity, it can have no binding

force or effect either in the tribunal in which it is rendered, or in any other in which




      4Tex. Fam. Code Ann. § 6.307(a).
      5In re Office of Attorney Gen., 422 S.W.3d 623, 628 (Tex. 2013) (orig.
proceeding).
                                      5
it may be brought in question.” 6 Given that a statute enacted by the legislature

arguably renders the marriage at issue void, Mark had the right to defend against

Charity’s petition to enforce by pleading and proving they were never legally

married.7 Because the trial court excluded the evidence relevant to Mark’s defense

challenging the validity of the marriage, we hold the trial court abused its discretion

by excluding the evidence Mark offered to support his claim Charity was purportedly

married to another when she married him.

      We further conclude mandamus is the only remedy available to cure the trial

court’s error. Under Texas law, the validity of a judgment declaring a person in

contempt may be attacked by filing a writ of mandamus when the order of contempt

does not involve confinement.8 Currently, Mark is on community supervision under

the trial court’s order of contempt. And after Mark filed his petition, this Court

stayed all proceedings in the trial court pending our resolution of his petition for

mandamus relief. For those reasons, Mark is not currently in jail even though he is


      6 Milam Cty. v. Robertson, 47 Tex. 222, 232 (1877).
      7 See In re Campbell, No. 01-17-00251-CV, 2017 WL 3598251, at *3 (Tex.
App.—Houston [1st Dist.] Aug. 22, 2017) (orig. proceeding) (mem. op.).
      8 See In re Reece, 341 S.W.3d 360, 374 (Tex. 2011) (explaining mandamus

was available where “the relator’s liberty interests are threatened without a
remaining procedural safeguard for challenging his confinement”); In re Long, 984
S.W.2d 623, 625 (Tex. 1999) (orig. proceeding) (explaining that “[c]contempt orders
that do not involve confinement cannot be reviewed by writ of habeas corpus, and
the only possible relief is a writ of mandamus”).
                                          6
currently in violation of the payment deadlines stated in the trial court’s order of

contempt.

      Mandamus lies to address a party’s complaint about the trial court’s exclusion

of evidence when there is no remedy by appeal.9 Under the circumstances presented

here, we conclude mandamus should issue because the court clearly abused its

discretion and Mark has no adequate remedy by appeal.10 Nonetheless, we conclude

we need only conditionally issue the writ and direct the trial court to vacate its order

holding Mark in contempt.

      For the reasons explained above, we conditionally grant Mark’s petition. We

are confident the trial court will vacate the order the court signed holding Mark in

contempt and placing him on community supervision. The writ shall issue only if

the trial court fails to comply.

      PETITION CONDITIONALLY GRANTED.


                                                            PER CURIAM

Submitted on March 13, 2020
Opinion Delivered April 9, 2020

Before Kreger, Horton and Johnson, JJ.



      9   See Campbell, 2017 WL 3598251, at *3.
      10   See Long, 984 S.W.2d at 625.
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