Ince v. Ince

58 S.W.3d 187, 2001 Tex. App. LEXIS 5509, 2001 WL 920698
CourtCourt of Appeals of Texas
DecidedAugust 15, 2001
Docket10-00-281-CV
StatusPublished
Cited by36 cases

This text of 58 S.W.3d 187 (Ince v. Ince) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ince v. Ince, 58 S.W.3d 187, 2001 Tex. App. LEXIS 5509, 2001 WL 920698 (Tex. Ct. App. 2001).

Opinions

OPINION

GRAY, Justice.

Derek and Virginia Ince were divorced in 1987. Almost thirteen years later, Derek filed a petition for bill of review seeking to set aside certain portions of the divorce decree, alleging fraud on the part of Virginia. After a pretrial hearing, the court denied the petition for bill of review and [189]*189dismissed the action. On appeal, Derek challenges the dismissal. We affirm the trial court’s judgment.

BACKGROUND

The divorce decree entered in 1987 found that Derek and Virginia Ince were the parents of one child born during the marriage. Derek did not contest the issue of paternity at any time during the proceedings. The decree appointed conservators, provided for periods of possession, and ordered Derek to pay child support. Eleven years later, after three modifications regarding child support and visitation, Derek asked the court to allow DNA testing on the child to determine if she had a genetic problem. The court order granting Derek’s motion specified that the testing was to be for medical reasons only and advised that paternity of the child had been judicially determined by previous court order.1

When the DNA tests excluded Derek as the father, he filed his petition for bill of review seeking to disestablish his paternity of the child and to vacate the order for support. Derek claimed that Virginia’s fraudulent concealment of the child’s true father prevented him from contesting paternity because that defense was unknown to him at the time of the divorce.2 His petition for bill of review states that:

1.He had no reason to doubt his paternity;
2. He did not ignore any warning signs that would indicate that Virginia had engaged in an extra-marital affair;
3. He did not discover, nor could he have discovered, that the child was not his biological daughter until the paternity results were reported; and
4. He was not intentionally faulty or negligent in failing to discover Virginia’s adultery.

After conducting a pretrial hearing, the court concluded that the alleged fraud was intrinsic in nature and would not support a bill of review. The court further held that the bill of review was barred by the four-year statute of limitations. Derek claims that the court erred in dismissing his petition because (1) the court should not have made any determination regarding the nature of the fraud prior to trial and (2) the statute of limitations was tolled by the fraud.

BILL OF REVIEW

A bill of review is an independent equitable action that challenges the validity of a judgment that is no longer appeal-able. Baker v. Goldsmith, 582 S.W.2d 404, 406 (Tex.1979). Courts have long recognized the importance of the finality of judgments. As a result, the grounds for setting aside an otherwise final judgment are limited. Montgomery v. Kennedy, 669 S.W.2d 309, 312 (Tex.1984). In Baker, the Supreme Court required the bill of review complainant to file an adequate petition [190]*190and then to present a meritorious prima facie defense at a pretrial hearing. Only upon satisfaction of both requirements will the court grant a new trial. Otherwise, the court will automatically dismiss the case without motion or request from either party. Baker, 582 S.W.2d at 408.

Derek asserts that he met both Baker requirements. We disagree.

Adequate pleading

To invoke the equitable powers of the trial court, the complainant must file a petition alleging factually and with particularity that, through no negligence of his own, he was prevented from asserting a meritorious defense to the original cause of action as a result of fraud, accident, wrongful act or official mistake. Baker, 582 S.W.2d at 408. Fraud, as it applies to attacks upon final judgment, may be either intrinsic or extrinsic. Intrinsic fraud relates to issues that were presented and resolved-or could have been resolved — in the former action. Fraudulent instruments and perjured testimony are considered intrinsic fraud because these are matters presented to and considered by the court in the original proceeding. Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex.1989). Extrinsic fraud, on the other hand, 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. Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1002 (1950). Only extrinsic fraud supports a bill of review. Tice, 767 S.W.2d at 702.

Derek asserts that the court is not required to determine whether the alleged fraud is intrinsic or extrinsic prior to the trial on the merits. The Supreme Court has held, however, that 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 700; Transworld Fin. Serv. Corp. v. Briscoe, 722 S.W.2d 407 (Tex.1987). The Tice court found that the petition of complainant City of Pasadena fell short of meeting the requirements for a bill of review because Pasadena pled only intrinsic fraud:

The fatal flaw in Pasadena’s claim is that all of these issues were in controversy in the original trial, and were fully litigated or. could have been fully litigated had Pasadena asserted its legal rights. A careful examination of the record in the original trial bears out the fact that all of the alleged “meritorious defenses” were fully presented or could have been fully presented in the original trial.

Tice, 767 S.W.2d at 704. The court held that Pasadena could therefore not proceed to a new trial on the merits. Id. at 705.

In Transworld, the complainants alleged attorney negligence in their petition. The trial court dismissed the cause because the petition failed to allege extrinsic fraud, and the Supreme Court affirmed the decision of the trial court:

We hold that a bill of review petitioner who alleges that he suffered an adverse judgment because of the fraudulent or wrongful acts of his attorney is not excused from the necessity of pleading and proving extrinsic fraud on the part of his opponent.

Transworld, 722 S.W.2d at 408. Therefore, to determine if a complainant has fulfilled the threshold Baker requirement of filing an adequate petition, the court must first determine if the complainant has alleged extrinsic fraud.

Derek’s petition has the same fatal flaw as Pasadena’s petition in Tice. Paternity, although not contested, was an issue addressed and resolved by the trial court in 1987. The divorce decree establishes [191]*191Derek as the child’s father and provides for child support, conservatorship, and visitation.

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Bluebook (online)
58 S.W.3d 187, 2001 Tex. App. LEXIS 5509, 2001 WL 920698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ince-v-ince-texapp-2001.