Dias v. Dias
| Decision Date | 25 November 2014 |
| Docket Number | NUMBER 13-12-00685-CV |
| Parties | LINUS F. DIAS, Appellant, v. RITIKA DIAS, Appellee. |
| Court | Texas Court of Appeals |
On appeal from the 28th District Court of Nueces County, Texas.
Before Chief Justice Valdez and Justices Rodriguez and Garza
Appellant Linus Dias appeals the trial court's order granting appellee Ritika Dias's bill of review and setting aside a previously entered divorce decree. By twelve issues, which we address as seven, Linus contends that (1) Ritika was not entitled to a bill of review because she failed to exercise due diligence in pursuing all legal remedies; (2) there was insufficient evidence to support the trial court's finding that Linus committedextrinsic fraud; (3) Ritika failed to prove that she had a meritorious defense that she was denied from pursuing due to Linus's fraud; (4) the trial court erred by awarding attorney's fees for the bill of review because attorney's fees could only be recoverable as part of the division of the marital estate; (5) Ritika failed to prove that attorney's fees were reasonable and necessary; (6) Ritika was not entitled to fees for her expert witness as a matter of law because she did not establish the reliability of the expert testimony and because she did not prove that such fees were reasonable and necessary; and (7) the trial court should have awarded Linus attorney's fees after denying the bill of review. We affirm.
Linus obtained an agreed divorce from Ritika through a Final Divorce Decree entered by the trial court on November 20, 2009. On that date, Linus presented the agreed final divorce decree, which bore both signatures of both Linus and Ritika underneath the heading "Approved and Consented to as to Both Form and Substance." The trial court signed the decree. Ritika did not receive notice of the divorce proceedings because, on November 19, 2009, Linus had filed a waiver of service with Ritika's signature on it.
Ritika filed a Bill of Review with the trial court on November 8, 2010. A hearing on the bill of review was held on July 27, 2011. At the hearing, Ritika argued that the marital property was split inequitably by the divorce decree and that she was prevented from appearing or presenting evidence prior to the initial divorce because of Linus's fraud. She argued that she did not sign the final divorce decree or the waiver of service.
At the hearing on the bill of review, Ritika testified that she planned a trip to India from November 18, 2009 to February 2010 to attend her sister's wedding. She testifiedthat she received a fax of the unsigned signature page of the final divorce decree on November 17, 2009, one day before she was scheduled to leave for India. She explained that Linus had asked her brother to get her signature on the document, but that she did not sign it and did not take it seriously because "full documents were not served." The trial court signed the final divorce decree, which purported to be signed by Ritika, on November 20, 2009, two days after she left for India. Ritika testified that Linus emailed her a copy of the final divorce decree on November 30, but she did not see the email until December 30, forty days after the judgment was signed. She testified that she returned to America on January 27, 2010 because "she found out about the divorce which had been finalized without [her] knowledge."
At the bill of review hearing, four documents were admitted into evidence that were purportedly signed by Ritika and notarized by an employee of Bank of America, Amelia S. Yard, on December 26, 2008: (1) a privacy act document, (2) an affidavit of identity, (3) a release of records, and (4) the waiver of service at issue in this case. The final divorce decree was not notarized. The first three documents related to Ritika's immigration status. The waiver of service indicated that she had received a copy of the original petition for divorce and stated, Ritika testified that she appeared before a notary at Bank of America on that date and does not dispute that she signed immigration documents; but she testified that she did not sign the waiver of service. She stated that she appeared at Bank of America only to sign immigration documents and would not have signed any document relating to a divorce. Ritika explained that the first time she learned of the waiver ofservice was when the attorney she consulted after she received notice of the divorce decree informed her that a waiver of service had been filed.
Yard testified by deposition that it was her signature on the notary stamps on the documents purportedly signed by Ritika on December 26, 2008 and that she could identify that she had hand-written Ritika's social security and driver's license numbers and the date. Yard testified that she did not remember the events in question. She further testified that both she and Bank of America were required to keep notary records; however, the notary books for that day had either been lost or destroyed.
At the hearing, James testified that Ritika's signature on the divorce decree was a replica of the signature on the waiver of service. She stated, "It is my professional opinion that the final decree of divorce is a non-genuine signature." On cross-examination, James testified that the signature on the waiver of service was a "genuine signature." She explained that at the time she completed the report, she was examining a copy of the waiver of service, not the original.
Linus testified at the hearing on the bill of review that he was present at Bank of America on December 26, 2008 and witnessed Ritika sign immigration documents and the waiver of service. Linus testified that on that date, Ritika also signed the final divorce decree, but that the decree was not notarized. Linus explained that his lawyer drafted the decree and he presented it to Ritika for her review. Linus stated that he gave the waiver of service to his lawyer as soon as it was signed in December of 2008, but that his lawyer did not file the waiver of service with the trial court until almost a year later because he had to wait for Ritika's green card to be processed before he could proceed with the divorce. Linus testified that he did not appear before the trial court to provide any evidence or testimony, but that the agreed divorce was entered by submission. Linus testified that he faxed a copy of the signature page of the divorce decree to Ritika's brother after the trial court judge signed the decree.
On August 30, 2011, the trial court granted the bill of review, vacated the original divorce decree, and ordered Linus to pay Ritika $24,000 in attorney's and expert fees. It entered findings of fact concluding, inter alia, the following: (1) both the signature on the waiver of service and final divorce decree were "non-genuine" and neither document was signed by Ritika; (2) Ritika "was not served with citation in the divorce action as required by law, and was not given proper notice of the divorce suit"; (3) "[Ritika] had no actual knowledge of the suit for divorce filed by [Linus] until well after the expiration of thirty (30) days after the judgment was rendered"; (4) "[Ritika] was prevented from asserting her meritorious defense as a direct impact of the fraudulent and wrongful acts of [Linus]"; (5) "[Ritika's] failure to assert any defense was due to no negligence or fault of [Ritika], but was directly due to the fraudulent and wrongful acts of [Linus]"; (6) "[Ritika] agreed to payher attorneys the reasonable fee of $250.00 per hour in the prosecution of her claims"; (7)
A second divorce proceeding was held on September 21, 2012. After evidence was presented and testimony was heard from both parties, the trial court entered a final decree on October 2, 2012, in which the property was split the same way as it had been in the first decree, except that Linus was awarded a different car because he no longer owned the car awarded to him in the first decree. The divorce decree indicated that each party would be responsible for its own costs and attorney's fees "incurred as a result of legal representation in this case." This appeal from the order granting the bill of review followed.
We review the granting or denial of a bill of review under an abuse of discretion standard.1 Temple v. Archambo, 161 S.W.3d 217, 224 (Tex. App.—Corpus Christi 2005,no pet.). When the issue on appeal concerns a question of law, the appellate court reviews the trial court's decision de novo. Id.
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