In the Interest of J.B, No. 2-08-195-CV (Tex. App. 2/26/2009)
| Decision Date | 26 February 2009 |
| Docket Number | No. 2-08-195-CV.,2-08-195-CV. |
| Parties | IN THE INTEREST OF J.B., JR., S.C.B., AND S.F.B., Minor Children. |
| Court | Texas Court of Appeals |
Appeal from the 271st District Court of Wise County.
Panel: LIVINGSTON and MCCOY, JJ.; and WILLIAM BRIGHAM, J. (Senior Justice, Retired, Sitting by Assignment).
In five issues, the Office of the Attorney General of Texas ("the OAG") appeals the trial court's order overturning the portion of the 2004 agreed Child Support Review Order ("CSRO") pertaining to S.C.B., and it further appeals the trial court's order terminating the parent-child relationship between Appellee J.B. and S.C.B. We vacate in part and reverse and remand in part.
In 2004, during the marriage of J.B. and ("Mother"), J.B. signed an admission of paternity acknowledging S.C.B. as his biological child. At the same time, he signed an agreed CSRO and a "Waiver of Service, Hearing, and Other Rights and Approval of Child Support Review Order." The trial court adjudicated J.B. the father of S.C.B.; neither post-trial motions nor a notice of appeal was filed.
In 2006, J.B. sought a divorce from Mother. In the petition, J.B. alleged that he was the father of S.C.B.; however, J.B. learned after filing the divorce petition that he was not S.C.B.'s biological father. In 2007, the OAG filed a petition to intervene in the divorce proceeding and moved to consolidate the divorce proceeding with the suit affecting the parent-child relationship ("SAPCR") in which the CSRO had been signed.2
Shortly thereafter, without informing the OAG, the trial court signed an agreed final decree of divorce. The decree contained a finding that S.C.B. "is not a child of this marriage" and established conservatorship and child support for J.B., Jr. and S.F.B.3 Upon learning of the decree, the OAG timely filed a motion for new trial. The trial court granted the OAG's motion for new trial but limited the issues to conservatorship, visitation, child support, and medical support for S.C.B.
In J.B.'s first amended original answer and counterclaim, he denied paternity of S.C.B. based on genetic test results and claimed fraud on the part of Mother. At the conclusion of the hearing, the trial court signed an order that overturned the CSRO with respect to S.C.B., terminated the parent-child relationship between J.B. and S.C.B., reinstated the agreed degree of divorce, and granted J.B. visitation rights to S.C.B. This appeal followed.
We review the trial court's grant or denial of a bill of review for an abuse of discretion, and every presumption is indulged in favor of the court's ruling. Interaction, Inc. v. State, 17 S.W.3d 775, 778 (Tex. App.-Austin 2000, pet. denied). We review the trial court's ruling on pleadings for an abuse of discretion. Hardin v. Hardin, 597 S.W.2d 347, 349-50 (Tex. 1980). A trial court abuses its discretion if it misapplies the law to established facts. State v. Sw. Bell Tel. Co., 526 S.W.2d 526, 528 (Tex. 1975); In re Talco-Bogata Consol. Indep. Sch. Dist. Bond Election, 994 S.W.2d 343, 347 (Tex. App.-Texarkana 1999, no pet.).
In its first issue, the OAG asserts that the trial court abused its discretion by overturning the CSRO. Specifically, the OAG argues that 1) the trial court lacked plenary jurisdiction to overturn the CSRO and that J.B.'s petition failed to meet the requirements of a bill of review, 2) the trial court's findings and conclusions as to the bill of review are legally and factually insufficient, and 3) J.B.'s pleadings do not support the trial court's order overturning the CSRO.4
Although paternity was not contested in the original proceeding, the 2004 SAPCR addressed S.C.B.'s paternity. The agreed CSRO establishes that J.B. is the father of S.C.B. and provides for S.C.B.'s medical care.5 Generally, subject to several exceptions, a party to a court proceeding to determine parentage of a child is bound by the court's findings. Tex. Fam. Code Ann. § 160.637(a)(2) (Vernon 2008).
Although the 2004 order is an agreed order, and therefore is not based upon a fully contested trial on the merits, agreed orders are "accorded the same degree of finality and binding force as a final judgment rendered at the conclusion of an adversary proceeding." McCray v. McCray, 584 S.W.2d 279, 281 (Tex. 1979). While J.B. became obligated to support S.C.B. by virtue of the CSRO adjudicating paternity, Texas law does provide post-judgment avenues to contest a paternity finding. Section 160.637(e) of the Texas Family Code provides that "[a] party to an adjudication of paternity may challenge the adjudication only under the laws of this state relating to appeal, the vacating of judgments, or other judicial review." Tex. Fam. Code Ann. § 160.637(e).
Pursuant to rule 329b(d) of the Texas Rules of Civil Procedure, the trial court has plenary power for thirty days after a judgment is signed to grant a new trial or to vacate, modify, correct, or reform the judgment. Tex. R. Civ. P. 329b(d). Once the trial court's plenary power expires, it cannot set aside its judgment except by a bill of review for sufficient cause. Tex. R. Civ. P. 329b(f).
A bill of review is an independent equitable action brought by a party to a former action seeking to set aside a judgment that is no longer appealable or subject to a motion for new trial. Id.; Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985). To invoke the equitable power of the trial court, the party seeking a bill of review must file a petition alleging with particularity sworn facts sufficient to constitute a meritorious defense, which he was prevented from making by fraud, accident, or wrongful act of the opposing party or as the result of official mistake, and unmixed with any fault or negligence of his own. State v. 1985 Chevrolet Pickup Truck, 778 S.W.2d 463, 464 (Tex. 1989).
In a petition for a bill of review, the petitioner must allege extrinsic fraud as distinguished from intrinsic fraud. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989); Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.-Houston [1st Dist.] 2006, no pet.). Failure to plead extrinsic fraud will result in denial of the right to a trial by bill of review. See Tice, 767 S.W.2d at 700; see also King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 752 (Tex. 2003) (discussing extrinsic fraud), cert. denied, 541 U.S. 1030 (2004).
Extrinsic fraud is fraud that denies a party the opportunity to fully litigate at trial all the rights or defenses that he could have asserted. Tice, 767 S.W.2d at 702. Extrinsic fraud is wrongful conduct practiced outside of the adversary trial—such as keeping a party away from court, making false promises of compromise, denying a party knowledge of the suit—that affects the manner in which the judgment is procured. Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex. App.-Houston [1st Dist.] 2006, no pet.). "Extrinsic fraud is `collateral' fraud in the sense that it must be collateral to the matter actually tried and not something which was actually or potentially in issue in the trial." Montgomery v. Kennedy, 669 S.W.2d 309, 312-13 (Tex. 1984) (citing Crouch v. McGaw, 134 Tex. 633, 138 S.W.2d 94, 97 (1940)).
In contrast, intrinsic fraud "relates to the merits of the issues which were presented and presumably were or should have been settled in the former action." Tice, 767 S.W.2d at 702. Intrinsic fraud "is inherent in the matter considered and determined in the trial `where the fraudulent acts pertain to an issue involved in the original action, or where the acts constituting the fraud were, or could have been litigated therein.'" Montgomery, 669 S.W.2d at 313 (quoting Mills v. Baird, 147 S.W.2d 312, 316 (Tex. Civ. App.-Austin 1941, writ ref'd)).
J.B. does not allege extrinsic fraud in his petition.6 J.B. alleges that Mother lied when she told J.B. that he was S.C.B.'s father, and that he did not learn until after the trial court had already adjudicated him S.C.B.'s father that he was not, in fact, S.C.B.'s biological father. Thus, the fraudulent statements that J.B. complains of were made by Mother, who was also a party to the SAPCR.
Because parentage was an issue subject to being fully litigated in the SAPCR, and the alleged fraud was that of a party to the suit, J.B.'s claim about Mother's misrepresentations of parentage asserts intrinsic fraud. See, e.g., In re J.M.C., No. 04-06-00431-CV, 2007 WL 460691, *2 (Tex. App.-San Antonio Feb. 14, 2007, no pet.) (mem. op.); In re Attorney Gen. of Tex., 184 S.W.3d 925, 928 (Tex. App.-Beaumont 2006, no pet.); Nelson, 193 S.W.3d at 166.
To prove extrinsic fraud, J.B. had to present a prima facie case that Mother prevented him from having a fair opportunity to assert that he was not S.C.B.'s father when the parent-child relationship was established by the CSRO. See Nelson, 193 S.W.3d at 166. Furthermore, J.B. was put on notice by the very nature of the paternity proceeding that he could avail himself of the defense of non-paternity and that he could obtain a DNA test to support his defense. Id. Finally, J.B. failed to present sworn facts showing that Mother prevented him from availing himself of DNA testing at the time paternity was established.
Therefore, because J.B. did not meet the preliminary requirements for a bill of review proceeding—that is, he did not allege facts to show that: 1) the CSRO was rendered as the result of extrinsic fraud, and 2) the CSRO was rendered without the contribution of his own fault or neglect—we hold that the trial court abused its discretion in overturning that portion of the CSRO pertaining to S.C.B. based upon the allegations in J.B.'s petition for a bill of review. Accordingly, we sustain the OAG's first issue.7
In the OAG's fifth issue and as part of its third issue, the OAG asserts that the...
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