in the Interest of B.L.P, A.L.P and A.L.P

• Court: Court of Appeals of Texas
• Decided: December 12, 2012
• Docket: 05-11-00470-CV
• Status: Published

Opinion

DISMISS; Opinion issued December 12, 2012.

In The Quurt tif ApLIt Fift1! tHtrjrt nf rxa at Thtt1a No. 05-1 1-00470-CV

IN RE B.LP., A.L.P., and HLP.

On Appeal from the 304th Judicial District Court I)allas County, Texas Trial Court Cause No. 90-1214-W

MEMORANDUM OPINION Before Justices O’Neill. FitzGerald and Lang-Miers Opinion By Justice O’Neill

Appellant Lonnie Ray Fagan appeals an order denying a “Motion to Modify for Bill of

Review.” In 1990, the trial court entered an order of paternity and order to withhold appellant’s

earnings for child support regarding appellant’s three children. Ten years later, after all three of his

children turned eighteen years old, and well after the withholding order had expired. appellant filed

a “Motion for Modification of Judgment.’

The motion was set for a hearing on January 11, 2011 after which the trial court orally denied

the motion as untimely. Appellant requested Hndings of fact and conclusions of law and later a

notice of past due findings. Appellant also filed a notice of appeal complaining of the trial court’s

January 11, 2011 ruling. On January 24, 2012, we requested the district clerk to supplement the

record with the trial court’s January 11, 2011 order. The district clerk supplemented the record with the trial court’s order on the “Motion to Modily for Bill of Review” that was not signed until July

12, 2011.

We have carefully reviewed appellant’s “Motion for Modification of Judgment.” In his

motion, appellant attempts to invoke the trial court’s continuing jurisdiction under section 156.401

of the family code. TEx. FAM. CODE ANN. § 156.401 (West 2008). However, even construing

appellant’s motion liberally, who was pro se below and on appeal, it is apparent that his complaints

are directed to the original 1990 withholding order, All of appellant’s complaints could have been

raised in a direct appeal from that order.

A trial court has plenary power to grant a new trial or to vacate, modify, correct, or reform a

judgment within thirty days after the day a judgment is signed. TEX. R. CIV. P. 329h(d). On

expiration of the trial court’s plenary power, a judgment cannot be set aside by the trial court except

by bill of review for sufficient cause. TEX. R. Civ. P. 329b(f). Here, appellant should have raised his

complaints in a timely appeal from the 1990 order. Instead, he filed a “motion for modification” long

after the trial court’s plenary power expired. See TEx. R. Civ. P. 329h. Consequently, the trial court

had no jurisdiction to consider the motion. See In re C.N., 313 S.W.3d 490, 492 (Tex. App.—Dallas

2010, no writ).

We note the trial court’s order is entitled “Motion to Modify on Bill of Review” and the

attorney general responds to this appeal as an appeal from denial of a bill of review, However,

despite the ambiguous title of the trial court’s order, a review of the proceedings below do not support

treating the motion to modify as a bill of review. Rather, the motion to modify was not filed as an

independent proceeding, did not purport to set out the prima facie requirements of a bill of review,

and was summarily dismissed by the trial court. Furthermore, appellant does not contend on appeal

that he met the requirements of a bill of review. Consequently, we conclude appellant’s motion was an UIIL liflely Eliot 1011 to niodi ly the original j udginent. As such, the trial court had no jurisdiction to

consider that motion. Consequently. we dismiss this appeal.

,I AELJO’NFIrL JUSTICE /7/

I 10470F.P.05

—3— (Ctutrt tif i.ii:&ihi 2FiftI! Jiatnrt uf xas at Oa1tw

JUDGMENT LONNIE RAY FAGAN, Appellant Appeal from the 304th Judicial i)istrict Court of Dallas County, Texas. (Tr.Ct.No, No. 05 11 ()0470CV )0 12 14-W). Opinion delivered by Justice O’Neill, THE OFFICE OF THE ATTORNEY Justices FitzGerald and LangM iers GENERAL OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we DISMISS this appeal.

Judgment entered December 12. 201 2. 7,’

MtCHMi J 0 NE1LL ‘JUSTICE /