in the Interest of S.A.B., a Child

• Court: Court of Appeals of Texas
• Decided: July 17, 2002
• Docket: 04-01-00795-CV
• Status: Published

Opinion

No. 04-01-00795-CV IN THE INTEREST OF S.A.B., a Child From the 49th Judicial District Court, Webb County, Texas Trial Court No. 1997-CVO-000827-D1 Honorable Ron Carr, Judge Presiding

Opinion by: Phil Hardberger, Chief Justice

Sitting: Phil Hardberger, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: July 17, 2002

AFFIRMED

Laura Breeden ("Breeden") appeals the trial court's order granting the bill of review filed by Andres Reyes ("Reyes") and setting aside a decree terminating Reyes's parental rights to S.A.B. Breeden presents two issues for review, contending that the trial court erred in finding that extrinsic fraud was committed and that Reyes had been diligent in filing the bill of review. We affirm the trial court's order.

Background

On December 13, 1996, a decree of paternity was entered, finding Reyes to be the father of S.A.B., appointing Breeden as sole managing conservator of S.A.B., and appointing Reyes as possessory conservator with specified visitation rights. In 1997, Reyes filed a motion for contempt and motion to modify conservatorship, claiming that Breeden had moved and was depriving Reyes of his visitation rights and seeking to be named managing conservator of S.A.B. In July of 1997, Breeden filed a petition to terminate Reyes's parental rights, attaching a copy of Reyes's affidavit of relinquishment of his rights which Reyes signed on June 25, 1997. On September 5, 1997, the trial court entered a decree granting termination. The decree states, "All questions of law and fact have been agreed to and settled between the parties."

On June 1, 2001, Reyes filed a bill of review, alleging that Breeden had agreed that she would not deprive Reyes of access to S.A.B. as consideration for Reyes's agreement to relinquish his parental rights. Reyes alleged that Breeden agreed that Reyes would be allowed access and communication with S.A.B. until such time as S.A.B. was of an age that he could choose whether to visit Reyes or not. Reyes further alleged that in lieu of child support, the parties agreed that Reyes would establish a trust account into which he would make weekly deposits. Reyes provided evidence that he had established a trust account and made numerous deposits. Reyes contended that he was denied access and communication in violation of this agreement. As evidence that he was denied access, Reyes attached a letter from him to Breeden dated May 1, 2000, in which he details his travel to Wisconsin and other messages he had left with Breeden's family regarding his desire to speak with and visit S.A.B.

On July 30, 2001, Breeden filed a motion for summary judgment requesting that the bill of review be denied. Reyes subsequently filed an amended bill of review, attaching his affidavit regarding the terms of the alleged agreement regarding his continued access to S.A.B. following the termination. Reyes's affidavit states that the parties engaged in settlement negotiations prior to the trial of the motion to modify/petition for termination of parental rights and concludes:

A solution was reached in that the followings [sic] conditions were offered in order to induce my acquiescence for the termination of my parental rights and the execution of an affidavit of relinquishment of parental rights:

1) I would establish a Trust Agreement in which deposits would be made for the benefit of my son; the trust would end upon him reaching a certain age a[t] which time he would have access to such funds on deposit.

2) The trust would be an irrevocable trust.

3) She would agree to my having continued access and communication with my son.

Reyes also attached an affidavit signed by Sharon Trigo, the attorney who represented Breeden in connection with the termination decree. The affidavit stated that the parties met before trial in an attempt to reach a settlement and that Breeden insisted on the termination of Reyes rights while Reyes insisted on continued access and communication with S.A.B. Trigo's affidavit concludes:

A solution was reached under the following terms and conditions:

1) ANDRES REYES was to establish a Trust Agreement for the future benefit of [S.A.B.], on unspecified terms.

2) LAURA DIANA BREEDEN would allow ANDRES REYES to continued access and communication, including visitations as agreed upon, in the State of Wisconsin, on unspecified terms.

The trial court held a joint hearing on the bill of review and motion for summary judgment. Reyes testified at the hearing that Breeden had moved S.A.B. outside the State of Texas before the trial commenced on the motion to modify/petition for termination of rights. Reyes testified that Breeden promised that she would continue to allow Reyes to have access to S.A.B. if Reyes signed the affidavit of relinquishment. Reyes testified that he agreed to establish a trust fund. Reyes testified that the balance of the trust fund at the time of the hearing was approximately $19,000. Reyes testified that he had phoned and written numerous times and also had spoken with Breeden's family members imploring them to ask Breeden to allow him to see S.A.B. Reyes testified that he traveled to Wisconsin and stayed for a week in April of 2000, but he was not allowed to see S.A.B. During cross-examination, Reyes admitted that he was represented by counsel at the termination proceeding. Reyes further admitted that when he signed the relinquishment, he was practicing in the area of family law and had participated in terminations and adoptions.

Trigo also testified at the hearing. Trigo testified that she could not specifically state whether the parties reached an agreement. Trigo stated that Reyes expressed a desire to have continued access and communication, but Trigo could not recall any response from Breeden. As a point of clarification, Reyes's attorney asked Trigo to review her affidavit, and Trigo testified that she did not "see anything on it right now that [she] could disagree with." On cross-examination, Breeden's attorney asked Trigo whether the decree encompassed all of the agreements of the parties. In response, Trigo stated that she did not "know of anything that was omitted."

The trial court granted Reyes's bill of review, and Breeden appealed.

Standard of Review

A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998). To set aside a judgment by bill of review, the petitioner must ordinarily plead and prove: (1) a meritorious defense to the cause of action alleged to support the judgment; (2) that he was prevented from making by the fraud, accident or wrongful act of his opponent; (3) unmixed with any fault or negligence of his own. Id. A bill of review is an equitable remedy and is available only when a party has demonstrated due diligence, and can show, through no fault of its own, that no other legal remedy was available. Hernandez v. Koch Mach. Co., 16 S.W.3d 48, 57 (Tex. App.--Houston [1st Dist.] 2000, pet. denied).

Breeden contends that the trial court erred in finding that she had committed extrinsic fraud and that Reyes had been diligent in seeking bill of review relief. Breeden requests that this court reverse the trial court's order and render judgment denying the bill of review. We construe Breeden's issues as an attack on the legal sufficiency of the evidence to support the trial court's findings.

In considering legal sufficiency points, a reviewing court considers only the evidence favorable to the decision of the trier of fact and disregards all evidence and inferences to the contrary. See Davis v. City of San Antonio, 752 S.W.2d 518, 522 (Tex. 1988). If more than a scintilla of evidence is offered on a fact, the evidence is legally sufficient to support the trier of fact's finding on that matter. See Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983).

Fraud, Accident or Wrongful Act

In her first issue, Breeden contends that the evidence is insufficient to establish that Reyes was prevented from making a meritorious defense "by the fraud, accident or wrongful act of" Breeden. Specifically, Breeden contends that the fraud alleged by Reyes was not extrinsic fraud.

In relation to an attack on a final judgment, fraud may be either intrinsic or extrinsic; however, only extrinsic fraud supports a bill of review. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989); Ince v. Ince, 58 S.W.3d 187, 190 (Tex. App.--Waco 2001, no pet.). Intrinsic fraud relates to issues that were presented and resolved - or could have been resolved - in the former action. Tice, 767 S.W.2d at 702; Ince, 58 S.W.3d at 190. Perjured testimony is considered intrinsic fraud because it is a matter presented to and considered by the court in the original proceeding. Tice, 767 S.W.2d at 702; Ince, 58 S.W.3d at 190. Extrinsic fraud is wrongful conduct practiced outside the adversary trial that affects the manner in which the judgment was procured, such as keeping a party away from court or making false promises of compromise. Ince, 58 S.W.3d at 190.

Breeden relies on a case involving perjured testimony to argue against the trial court's extrinsic fraud finding. Although perjured testimony is intrinsic fraud, Reyes did not raise any complaint in his bill of review regarding perjured testimony. Reyes focuses on the promises made by Breeden to induce Reyes into signing the affidavit of relinquishment. The Texas Supreme Court has recognized that fraudulent representations made to a party to induce the party into executing an affidavit of relinquishment constitute extrinsic fraud. See Rogers v. Searle, 544 S.W.2d 114, 115 (Tex. 1976); see also Queen v. Goeddertz, 48 S.W.3d 928 (Tex. App.--Beaumont 2001, no pet.) (granting bill of review where father involuntarily executed affidavit of relinquishment based on promises of continued visitation). The testimony of Reyes and Trigo is some evidence that fraudulent representations or false promises of compromise were made to induce Reyes to execute the affidavit of relinquishment. In addition, the decree reflects that the termination was based on a finding that "all questions of law and fact have been agreed to and settled between the parties." The evidence is legally sufficient to support the trial court's finding that Breeden committed extrinsic fraud. Breeden's first issue is overruled.

Due Diligence

In her second issue, Breeden contends that the trial court erred in finding "that Reyes had been diligent before filing for bill of review relief, on the face of the pleadings and on the evidence presented at trial." Breeden argues that Reyes was not diligent in pursuing relief by bill of review and that Reyes should have "test[ed] Ms. Breeden's good faith in this alleged agreement and require access to the child before entering into any kind of agreement."

Breeden's first contention appears to be raising a laches-type defense to the bill of review petition. However, the bill of review was filed within the applicable four-year limitations period. "Generally in the absence of some element of estoppel or such extraordinary circumstances as would render inequitable the enforcement of petitioners' right after a delay, laches will not bar a suit short of the period set forth in the limitation statute. Laches should not bar an action on which limitations has not run unless allowing the action 'would work a grave injustice.'" Caldwell v. Barnes, 975 S.W.2d at 538 (citations omitted). In this case, Reyes sought bill of review relief because Reyes was fraudulently induced to relinquish his parental rights through a settlement that the trial court recognized in its termination decree. If Reyes is precluded from seeking relief, Breeden would be permitted to benefit from her fraudulent promises, depriving S.A.B. from visitation with his father. Under these circumstances, allowing the bill of review action would not work a "grave injustice," and the trial court properly rejected Breeden's laches contention.

Breeden's second contention is that Reyes was negligent in not testing her good faith by requiring access to S.A.B. before entering into any kind of agreement. Breeden's contention ignores that public policy favors the amicable settlement of controversies. Transport Ins. Co. v. Faircloth, 898 S.W.2d 269, 280 (Tex. 1995). "Settlements are favored because they avoid the uncertainties regarding the outcome of litigation, and the often exorbitant amounts of time and money to prosecute or defend claims at trial." Id. A settlement should be particularly favored in a case involving two parents fighting over access to their young son.

Breeden's second issue is overruled.

Conclusion

The trial court's order is affirmed.

PHIL HARDBERGER,

CHIEF JUSTICE

DO NOT PUBLISH