In re Interest of D.N.C.

• Decision Date: 23 November 2022
• Docket Number: 08-21-00214-CV
• Parties: In the INTEREST OF D.N.C., a Child
• Court: Texas Court of Appeals

656 S.W.3d 764

In the INTEREST OF D.N.C., a Child

No. 08-21-00214-CV

Court of Appeals of Texas, El Paso.

November 23, 2022

ATTORNEY FOR APPELLANT: Deterrean Gamble, Attorney General Office, Child Support Division, P.O. Box 12017 (MC 038-1), Austin, TX 78711-2017.

ATTORNEY FOR APPELLEE: I. P., 1325 Zempoala, San Elizario, TX 78949, H. C., 11788 Frances Scobee Dr., El Paso, TX 79936.

Before Rodriguez, C.J., Alley, J., and Marion, C.J. (Ret.), Marion, C.J. (Ret.) (Sitting by Assignment)

OPINION

SANDEE B. MARION, Chief Justice (Ret.)

This is an appeal of an order granting a bill of review filed by H.C. who sought to set aside a 2001 default order determining the parentage of D.N.C. The trial court granted the bill of review, voided the 2001 order, and entered an order establishing non-parentage—determining that H.C. is not the father of D.N.C. We reverse and remand.

Factual and Procedural History

On May 2, 2001, H.C., a minor at the time, was served with notice of a lawsuit to adjudicate parentage of D.N.C. The lawsuit resulted in a default order establishing the parent-child relationship between H.C. and D.N.C. In 2004, H.C. appeared in person and by attorney at a hearing, and the trial court issued an order enforcing child support and medical support obligations. In 2006, H.C. sought a bill of review seeking to set aside the 2001 default order. The 2006 bill of review was dismissed in 2007. On April 17, 2020, H.C. filed a petition for declaratory judgment and bill of review seeking to set aside the 2001 default order alleging extrinsic fraud and lack of proper notice. The trial court declared the 2001 order void, granted the bill of review, and issued a final order adjudicating the non-parentage of H.C. The Attorney General filed this appeal.

Discussion

Appellant brings three issues for our review contending that (1) our Court has jurisdiction, (2) the trial court erred in declaring the default order establishing parentage void, and (3) the bill of review was untimely filed. We address the threshold question of jurisdiction first, and because we conclude that the bill of review was untimely filed, we do not address Appellant's second issue. TEX.R.APP.P. 47.1.

Jurisdiction

In Appellant's first issue, it contends that we have jurisdiction over this appeal. We agree. "A bill of review which sets aside a prior judgment but does not dispose of all the issues of the case on the merits is interlocutory in nature and not a final judgment appealable to the court of appeals or the supreme court." Kiefer v. Touris , 197 S.W.3d 300, 302 (Tex. 2006) (quoting Tesoro Petroleum v. Smith , 796 S.W.2d 705, 705 (Tex. 1990) ). Here, however, the trial court not only granted the bill of review, it then issued a final order declaring that H.C. is not the parent of D.N.C., which disposed of the issue of parentage. The final order adjudicating non-parentage was signed by the court on November 24, 2001, and the Appellant filed its notice of appeal on December 15, 2001. Therefore, we conclude that we have jurisdiction. Appellant's first issue is sustained.

Bills of Review

In Appellant's third issue, it contends that H.C.’s bill of review was untimely filed. A bill of review is an independent action to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial." Wembley Inv. Co. v. Herrera , 11 S.W.3d 924, 926–27 (Tex. 1999). In a petition for a bill of review, the petitioner must plead and prove "(1) a meritorious defense to the underlying cause of action, (2) which the plaintiffs were prevented from making by the fraud, accident or wrongful act of the opposing party or official mistake, (3) unmixed with any fault or negligence on their own part." Caldwell v. Barnes , 154 S.W.3d 93, 96 (Tex. 2004). Fraud is either extrinsic or intrinsic, and only extrinsic fraud will support a bill of review. King Ranch, Inc. v. Chapman , 118 S.W.3d 742, 752 (Tex. 2003). "Extrinsic fraud is fraud that denied a party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted." Id.

Absent extrinsic fraud, a party must file a bill of review within four years of the date of the judgment the bill of review seeks to set aside. See TEX.CIV.PRAC. & REM.CODE ANN. § 16.051 ("Every action for which there is no express limitations period ... must be brought not later than four years after the day the cause of action accrues."). In his bill of review, H.C. alleged that "the mother of the child fraudulently asserted that he was the father of the child." Texas courts have consistently held that a lie about a child's parentage is intrinsic fraud. See e.g., Nelson v. Chaney , 193 S.W.3d 161, 166 (Tex.App.—Houston [1st Dist.] 2006, no pet.). We thus...