Opinion
No. 14-06-00069-CV
Opinion filed August 23, 2007.
On Appeal from the 245th District Court Harris County, Texas, Trial Court Cause No. 05-58241.
Panel consists of Justices FROST, SEYMORE, and GUZMAN.
MEMORANDUM OPINION
William Robert Thomas appeals dismissal of a bill of review challenging a divorce decree and final judgment in favor of Patricia Russell Thomas. Our disposition is based on settled law. Accordingly, we issue this memorandum opinion and affirm. See TEX. R. APP. P. 47.4.
I. BACKGROUND
William and Patricia were divorced on July 5, 2005, following a jury trial concerning which parent should retain the exclusive right to determine and establish residence for their two children. On July 20, 2005, William filed his original motion for new trial claiming the trial court erred by failing to strike certain jurors during jury selection and contending "that the jury verdict was against the greater weight and preponderance of the credible evidence." During the morning hours of August 4, 2005, Patricia informed William she was pregnant with another child. She claimed to have discovered her pregnancy after a sonogram was performed on July 1, 2005. Patricia gave birth to the child on October 27, 2005. William disclaimed paternity, and another man filed an acknowledgment that he is the father. William did not file an amended motion for new trial on or before August 4, 2005, which was the last day a motion for new trial could be timely filed pursuant to Texas Rule of Civil Procedure 329b. See TEX. R. CIV. P. 329(b). However, on August 15, 2005, he filed his first amended motion for new trial in which he first announced his new-evidence complaint regarding Patricia's pregnancy revelation. William filed a second amended motion for new trial on August 18, 2005. On August 26, 2005, the trial court denied William's motion for new trial. William elected not to pursue an appeal within the prescribed time. Instead, on September 13, 2005, he filed a bill of review. Following a hearing, the trial court granted Patricia's motion to dismiss the bill of review on November 14, 2005. This appeal ensued.
II. STANDARD OF REVIEW
A bill of review is an equitable proceeding to set aside a judgment that is not void on the face of the record, but is no longer appealable or subject to a motion for new trial. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003). A bill of review is proper when a party has exercised due diligence to prosecute all legal remedies against a former judgment. Id. Because of the fundamental policy that judgments must become final at some point, there are narrow grounds for granting a bill of review. Id. Consequently, a party petitioning for a bill of review must plead and prove (1) a meritorious defense to the cause of action alleged to support the judgment, (2) that the petitioner was prevented from making by the fraud, accident or wrongful act of his opponent, and (3) the petitioner was not negligent. Id. at 751B52.
In reviewing the grant or denial of a bill of review, every presumption is indulged in favor of the court's ruling, which will not be disturbed unless it is affirmatively shown that there was an abuse of judicial discretion. Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex.App.-Houston [14th Dist.] 2002, no pet.); see also Interaction, Inc. /State v. State/ Interaction, Inc., 17 S.W.3d 775, 778 (Tex.App. — Austin 2000, pet. denied). The trial court abuses its discretion when it rules in an unreasonable or arbitrary manner, or without reference to any guiding rules or principles. Nguyen, 93 S.W.3d at 293.
III. ANALYSIS
William seeks to set aside the trial court's determination that Patricia will be the primary joint managing conservator of their two children. In his bill of review, he contends: (1) he was unable to present a meritorious claim to set aside the judgment because he was deprived of complete facts and access to an important witness; and (2) he was prevented from presenting a meritorious defense to paternity of Patricia's newest child. William asked the trial court to vacate its judgment and grant a new trial on the issue of which party should have the right to establish domicile and residence of the two children born to the marriage
In support of his first contention, William asserts that Patricia lied under oath about her pregnancy. An allegation of perjury pertains to the merits of an underlying judgment and denotes intrinsic fraud. Intrinsic fraud is not the proper subject for a bill of review. See King Ranch, 118 S.W.3d at 752; Tice v. City of Pasadena, 767 S.W.2d 700, 704B05 (Tex. 1989) (original proceeding). Only extrinsic fraud will support a bill of review. King Ranch, 118 S.W.3d at 752. Extrinsic fraud is defined as fraud that denies a party the opportunity to fully litigate at trial all the rights or defenses that could have been asserted. Id. A bill is not appropriate to re-litigate issues fully presented or that could have been fully presented in the original trial. See Tice, 767 S.W.2d at 704B05; see also King Ranch, 118 S.W.3d at 752 (citing Tice and explaining that allegations relating to the merits of the underlying action, including perjured testimony, involve intrinsic fraud and have no probative value in a bill of review).
William's second claim concerning paternity of the new child is unrelated to the custody issue concerning the two children born of the marriage. William asserts that he is presumptively the father of the new child. See TEX. FAM. CODE ANN. § 160.631 (Vernon 2002). However, William disclaimed parentage, and another man filed an acknowledgment of paternity. Moreover, the record reflects that William discovered Patricia's pregnancy on the morning of August 4, 2005. This was the last day on which William could have timely filed an amended motion for new trial prerequisite to an appeal relative to all issues raised in his original and amended motions for new trial. In response to Patricia's suggestion that he had time to file an amended motion for new trial on August 4, 2005, William argues that mere notice of Patricia's pregnancy was not sufficient to put him on notice of relevant new evidence because he could not calculate the date of conception or identify the natural father. However, we find nothing in the record to support William's excuse for not filing an amended motion for new trial on August 4, 2005. Moreover, William acknowledges in his reply brief that the real reason he filed a bill of review was to seek a new trial solely on the issue of which parent should have the right to establish the residency of the two children. William inappropriately employs a legal fiction for the sole purpose of re-litigating matters which were appealable when he filed his bill of review.
Patricia contends William was required to pursue any available appeal prior to petitioning for a bill of review. See King Ranch, 118 S.W.3d at 751. We agree. William filed his bill of review before the time expired for relief he might have obtained by a direct appeal. A bill of review is not available unless a party has exercised due diligence to avail himself of all adequate legal remedies against a former judgment, and at the time he files the bill of review, there remains no such adequate legal remedy. Tice, 767 S.W. 2d at 702.
For all the reasons stated above, we conclude the trial court did not rule in an unreasonable or arbitrary manner, or without reference to any guiding rules or principles. Accordingly, we hold the trial court did not abuse its discretion in dismissing the bill of review.
The judgment of the trial court is affirmed.