McFarland v. Reynolds

513 S.W.2d 620

• Court: Court of Appeals of Texas
• Decided: August 30, 1974
• Docket: 882
• Status: Published

Opinions

OPINION

BISSETT, Justice.

This is a suit in the nature of a bill of review to set aside the property disposition made in a prior divorce decree, to obtain an equitable division of community property, and to modify the child custody provisions of the decree. Alternatively, plaintiff seeks the present custody of the minor children. The present suit was instituted by Jeanne Reynolds against her former husband, William Clark Reynolds. Both parties had remarried at the time plaintiff’s “Second Amended Original Bill of Review” was filed. Jeanne Reynolds is now Jeanne McFarland. She does not contest that part of the judgment which divorced her from appellee.

William Clark Reynolds filed a motion denominated “Motion to Strike Plaintiff’s Second Amended Original Bill of Review”, wherein he prayed that the pleading be stricken in its entirety. The trial court sustained the motion, and when Jeanne McFarland declined to amend, dismissed the action “with prejudice”.

The record in this appeal consists of the original divorce decree, appellant’s “Second Amended Original Bill qf Review”, hereinafter referred to as “pleading”, appellee’s motion to strike, and the judgment of dismissal. Appellee’s motion is necessarily directed solely to the adequacy of appellant’s pleading as a matter of law. The only question here presented is whether or not appellant has alleged sufficient cause for a bill of review.

The rules applicable to a bill of review were laid down by our Supreme Court in Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996 (1950). They were restated and thoroughly discussed in Hanks v. Rosser, 378 S.W.2d 31 (Tex.Sup.1964) ; in Gracey v. West, 422 S.W.2d 913 (Tex. Sup.1968), and in French v. Brown, 424 S.W.2d 893 (Tex.Sup.1967). Three matters must be alleged and proved in order for a losing party to successfully set aside a final judgment by a bill of review; they are: 1) a meritorious claim or defense, 2) which petitioner was prevented from making in the prior proceeding by fraud, accident or wrongful conduct of the opposite party, 3) unmixed with any fault or negligence on the part of petitioner. Since the proceedings in the trial court never reached the proof stage, we look only to appellant’s pleading to see if the three elements or requisites are alleged. If so, then the pleading is sufficient as a matter of law.

In the case at bar, an agreed judgment was rendered in the original divorce action between the parties in the 139th District Court of Hidalgo County, Texas on July 14, 1970, whereby appellant was divorced from appellee, custody of the parties’ three minor children was given to appellee, and all of the community property was awarded to appellee on condition that he pay all community debts. The judgment was not appealed and became final. Thereafter, appellant timely filed a bill of review.

Appellant’s pleading consists of two counts. The allegations for a bill of review are found in Count I. Appellant, in Count I, alleged that appellee secured her consent to the entry of the judgment through fraud; that prior to July 14, 1970, the parties had discussed a reconciliation and appellant had agreed to dismiss the then pending divorce suit, but on that date (July 14, 1970), appellee told plaintiff the only way a reconciliation could be effected would be for her to permit a judgment to be entered that would grant her the divorce, give appellee custody of the minor children, and award him all of their community property; that if she would agree thereto, “it would be the same as they had agreed upon before”, that she would not have to move from their home, that he would remarry her “within two (2) weeks, or a month at the latest”; that as a result of their remarriage she would continue to own the same interest in their community property as she owned prior to the divorce; and that she did not have any interest in the community property then owned by them because the debts exceeded the assets.

Appellant further alleged that when she asked the reason why a reconciliation could only be had on the terms dictated by appel-lee, that appellee told her he had been advised that unless he effected their reconciliation in this manner that the cause of action he had pending against a third party for alienation of appellant’s affections “would be untenable and he would have no chance for recovery”. Appellant then alleged that she “agreed to said reconciliation in accordance with defendant’s demands and conditions”, and that she relied upon appellee’s representations. She also alleged that but for those representations she would not have made the agreement with appellee and would not have consented to the entry of the judgment; and, that the judgment was not entered through any fault or negligence on her part.

Appellant’s pleading is verified; appel-lee’s motion to strike is not. Appellee particularly alleged in his motion that the pleading “is insufficient as a matter of law and does not allege actionable fraud or injury upon which recovery may be based”, and “said false and fraudulent representations alleged by the plaintiff are further immaterial to the cause at hand”. He also alleged that appellant, by her pleading, “admitted” that she had accepted a benefit under the divorce decree, and by her acceptance of the benefits of the judgment of the court, of remarriage, and of the disposition of their community property by allowing appellee to assume all community debts, is estopped from attacking the judgment; and, that appellant consented, procured,, induced and agreed to the entry of the original divorce decree.

The existence of fraud is a question of fact for the trier of facts. Drink-ard v. Ingram, 21 Tex. 650 (1858); Graham v. Roder, 5 Tex. 141 (1849); Young v. Texas Employers’ Insurance Association, 488 S.W.2d 551 (Tex.Civ.App. — Waco 1972, n. w. h.) ; 26 Tex.Jur.2d., Fraud and Deceit, § 140. A property settlement agreement reached by and between the parties in a divorce action is subject to being set aside because of extrinsic fraud. McMurry v. McMurry, 67 Tex. 665, 4 S. W. 357 (1887); Swearingen v. Swearin-gen, 193 S.W. 442 (Tex.Civ.App. — San Antonio 1917, writ ref’d) ; Ralls v. Ralls, 256 S.W. 688, 695 (Tex.Civ.App. — Amarillo 1923, writ dism’d).

In order to set aside an agreed judgment, or any part thereof, because of fraud, it is essential that the fraud be extrinsic and not intrinsic. O’Meara v. O’Meara, 181 S.W.2d 891 (Tex.Civ.App.— San Antonio 1944, writ ref’d); 34 Tex. Jur.2d, Judgments, § 205. Extrinsic fraud exists where a litigant “has been misled by his adversary by fraud or deception”. Alexander v. Hagedorn, supra.

There is nothing in the record before us which substantiates appellee’s allegations that appellant “procured” or “induced” the entry of the agreed judgment, or that appellant alone testified at the trial on the merits of the divorce action, as stated by appellee in his brief. We do not find that appellant “admitted” in her pleading that she has accepted a benefit under the judgment.

In addition to the foregoing allegations contained in appellant’s pleading, appellant also alleged, in effect, that appellee concealed from her the true facts relating to the community property, and misrepresented to her the real value of the community estate and the amount of the community debts. Those allegations do not relate to issues determined by the trial court in the previous trial but relate to false representations made prior to the trial with the result that the actual community property was not before the court for rendition of a judgment which would partition the same between the parties in an equitable manner. Novy v. Novy, 231 S.W.2d 780 (Tex.Civ. App. — Austin 1950, writ dism’d). Appel-lee’s representations as to the nature and extent of the community estate, if false, must be treated as, a species of extrinsic fraud. Wright v. Wright, 7 Tex. 526 (1852); Brownson v. New, 259 S.W.2d 277 (Tex.Civ.App. — San Antonio 1953, writ dism’d).

A person who remarries after having been divorced, may seek a review of other provisions contained in the decree of divorce, even though that person would be precluded from seeking a review of that portion of the decree which dissolved the marriage. Alderson v. Alderson, 281 N.E. 2d 82 (Ind.Sup.1972); Olson v. Olson, 180 N.W.2d 427 (Iowa Sup.1970); Brackin v. Brackin, 182 So.2d 1 (Fla.Sup.1966) ; Forest v. Forest, 9 Ill.App.3d 111, 291 N.E.2d 880 (1973). In this case, the acceptance by appellant of the community property disposition made in the judgment that terminated the marriage pursuant to an agreement with appellee does not estop her, as a matter of law, from a review of that disposition if she was led into the agreement through fraud and misrepresentation on the part of appellee and through no fault or negligence on her part. Carle v. Carle, 149 Tex. 469, 234 S.W.2d 1002 (1950); Dudley v. Lawler 468 S.W.2d 160 (Tex.Civ. App. — Waco 1971, n. w. h.); Eldridge v. Eldridge, 259 S.W. 209 (Tex.Civ.App.— San Antonio 1924, n. w. h.).

The judgment of dismissal cannot be affirmed on the ground that the record conclusively shows that appellant is es-topped from contesting the prior judgment. The ground of estoppel by the acceptance of benefits is a matter of affirmative defense to appellant’s action and cannot be urged to test the sufficiency of appellant’s pleading.

Appellant particularly alleged that an appeal from the judgment in the divorce proceeding because of appellee’s fraud was not available to her for the reason that she did not discover the fraud until after the time for perfecting such an appeal had elapsed. The reasons advanced in appellant’s petition for a bill of review are sufficient to excuse her failure to timely ask for a new trial or invoke her right of appeal.

Appellee, in his brief, argues that appellant’s pleading is legally insufficient because appellant participated in a fraud on the court when she “procured the entry of the decree of divorce, and that its purpose was reconciliation”. He relies primarily upon Potter v. Potter, 342 S.W.2d 800 (Tex.Civ.App. — Dallas 1961, n. w. h.) ; Radford v. Radford, 42 S.W.2d 1060 (Tex.Civ.App. — Texarkana 1931, n. w. h.) ; Grant v. Grant, 286 S.W. 647 (Tex.Civ. App. — Fort Worth 1926, n. w. h.), and Moor v. Moor, 63 S.W. 347 (Tex.Civ.App. 1901, writ ref’d). None of those cases are in point. In each case, the petitioner, by a bill of review, attempted to set aside a judgment in his favor that divorced the parties. That is not the case here. Appellant, in this action, does not question or attempt to impeach the verity of the decree of divorce, nor does she deny or impugn the grounds on which the divorce was granted. Whether or not appellant made fraudulent representations to the court that caused the court to grant her a divorce is not properly before us in this appeal. Appellee, in his motion, does not contend that appellant is estopped because of fraudulent representations made to the court concerning the grounds for divorce, nor does he contend, expressly or by implication, that appellant perpetrated a fraud upon the court. The fraud which is alleged by appellant consists of extrinsic acts not examined and determined in the divorce proceedings. That appellant agreed to go forward with her divorce action, the result of which might aid appellee in his suit for alienation of affections, had nothing to do with the representations made by appellee on July 14, 1970 as to the status of the community property that was then owned by the parties.

The issue of fraud on the part of appel-lee, the claim by appellant that the parties owned substantial community property prior to July-14, 1970, the question of negligence or fault of appellant, and the matter of estoppel should be tried together in a single trial in which every issue must be disposed of, and relief denied or granted. Ivy v. Carrell, 407 S.W.2d 212 (Tex.Sup. 1966).

In our opinion, a determination of factual issues by the trier of facts is required by the record before us. It cannot be determined as a matter of law whether the representations, if any, made by appel-lee concerning the extent and value of the community property rendered them actionable or not. The record does not show unequivocally that appellant is chargeable with fault or negligence which would conclusively bar her action for review of the disposition made of the community property in the divorce decree, nor does it show, as a matter of law, that appellant perpetrated a fraud upon the court when she consented and agreed to the entry of the original judgment. We conclude that appellant’s pleading was not insufficient as a matter of law. Actionable fraud on the part of appellee was alleged. The pleading shows sufficient cause for relief by bill of review. Appellant’s points 1, 5, 6, 8, 11, 12, 19, 25, 31 and 32 are sustained.

There are other reasons why the judgment of the trial court must be reversed. Appellee has challenged the sufficiency of appellant’s pleading on two grounds, and two grounds only; they are: 1) it is insufficient as a matter of law, and 2) appellant, having accepted a benefit by the judgment, is estopped from questioning it.

A motion that a whole pleading be stricken is the equivalent of a general objection by exception or demurrer. 45 Tex.Jur.2d, Pleading, § 128. The proper way for a defendant to urge that a plaintiff has failed to plead a cause of action is by special exception. McDonald, Texas Civil Practice, Vol. 2, § 7.18. General demurrers shall not be used. Rule 90, Texas Rules of Civil Procedure.

If a defendant’s pleading does not limit itself to the allegations of the plaintiff’s petition and point out defects therein but states factual propositions or conclusions that do not appear in the petition itself, it is a “speaking demurrer” which has never been permitted by our Rules of Civil Procedure, past or present. McDonald, Texas Civil Practice, Vol. 2, § 7.22. Factual allegations in a defendant’s motion that challenge a plaintiff’s right to maintain the action because the petition is insufficient as a matter of law should be ignored in passing on the sufficiency of plaintiff’s pleading. If the defendant must rely on extrinsic’ facts, he must plead those facts by a plea in abatement or in bar, and not by special exception. Here, appellee’s motion cannot be considered as a plea in abatement.

Generally speaking, the office of a special exception is to furnish the adverse party a means by which he may force clarification of and specifications in pleadings that are vague, indefinite or uncertain. Rule 91, T.R.C.P.; Farias v. Bes-teiro, 435 S.W.2d 314 (Tex.Civ.App. — Corpus Christi 1970, writ ref’d n. r. e.). A special exception may also question the sufficiency in law of the plaintiff’s petition. The allegations of a petition must be accepted as true in testing its sufficiency by special exception. City of Roma v. Starr County, 428 S,W.2d 851 (Tex.Civ. App. — San Antonio 1968, writ ref’d n. r. e.) ; Grimes v. Talbot, 233 S.W.2d 206 (Tex. Civ.App. — Galveston 1950, writ ref’d n. r. e.).

Appellee’s motion cannot be construed as a motion for judgment on the pleadings. The judgment complained of in this appeal was one of dismissal and not a judgment on the pleadings. Fundamental error is not disclosed. Therefore, we look only to the matters alleged by appellee in his motion in determining whether appellant has pled a cause of action We indulge in no presumptions or inferences.

The motion was no more than a broadside attack on appellant’s pleading generally and did not point out with particularity the defect, omission, obscurity, duplicity, generality or other insufficiency in appellant’s pleading, as required by Rule 91. Kelly v. Wright, 144 Tex. 114, 188 S.W.2d 983 (1945); McCamey v. Kinnear, 484 S. W.2d 150 (Tex.Civ.App. — Beaumont 1972, writ ref’d n. r. e.); Friedman v. Cohen, 404 S.W.2d 372 (Tex.Civ.App. — Houston 1966, n. w. h.); Riley v. Gray, 275 S.W.2d 171 (Tex.Civ.App. — Waco 1955, n. w. h.). Appellee does not direct attention to where in appellant’s pleading, she “admitted” that she had accepted a benefit under the prior judgment. Nowhere does appellee assign any reasons why appellant’s allegations are “immaterial to the cause at hand”.

Appellee, in paragraphs II, III, IV, V and VII of his motion, pleads es-toppel as a bar to appellant’s action. Neither the judgment sought to be reviewed nor appellant’s pleading afford any basis for a holding as a matter of law that appellant was estopped to have the judgment reviewed. In paragraph II it is averred that it was appellant who “procured” and “induced” the “entry of the original order”. In that respect, the paragraph is a “speaking demurrer” since a fact issue is injected into the proceeding. We treat those paragraphs as special exceptions. The only reason assigned in the motion for Count I of appellant’s pleading being insufficient as a matter of law is the assertion in paragraphs I and VI that the pleading “does not allege actionable fraud”. We treat those paragraphs as a motion to strike the whole pleading. 45 Tex.Jur.2d, Pleading § 128. We have already held contra to appellant’s contention and will not discuss it further. We consider the motion only to as to what has been explicitly alleged. The motion as a special exception is fatally defective. Appellant’s points 2, 4, 10, 13, 14, 15, 16, 18, 20, 21, 23, 24, 33 and 35 are sustained.

Appellant further alleged in Count II of her pleading that “since the entry of said judgment and decree of divorce there has been and there is a change in circumstances and conditions regarding the welfare, care custody and education of said above named minor children”. She then alleged that following the entry of judgment, appellee forcibly ejected her from her home, would not permit her to see the children, placed the children in the care of a maid from Mexico, and permitted the yougest child to live in unsanitary conditions ; that she had remarried since the divorce, was in a position to give the children a proper home, and that the welfare of the children required that they be placed with her.

Appellee, in paragraph VIII of his motion moved to strike Count II of appellant’s pleading for the reason that the allegations “are insufficient as a matter of law as to the change of custody in that it in no way alleges or reflects a material change of circumstances such as are required under the law”.

Appellant, in Count I of her pleading, did ask for a review of the child custody provisions which were made in the original decree. However in Count II, in the alternative, she asked “if said judgment not be set aside” that she be granted the (present) care and custody of the minor children and that appellee be required to support them. Appellee did not attempt to sever Count I from Count II; instead, he moved to strike the pleading in its entirety. In that state of the record, it was reversible error for the trial court to sustain the motion and to order appellant’s pleading stricken in its entirety, because, irrespective and independent of Count I, appellant, in Count II, did allege facts amounting to material changes of circumstances which were sufficient, if true, to justify the granting of custody of the children to her. Tex. Family Code Ann., § 14.08, U.T.C.A. The pleading is not inadequate in this respect as a matter of law and the trial court should not have dismissed “with prejudice” Count II of appellant’s pleading for the reason assigned by appellee in his motion. Paragraph VIII of appellee’s motion is nothing more than either a general demurrer or a denial. In either case, it should not have been sustained. Appellant’s points 27, 28, 29 and 30 are sustained.

Nothing contained herein shall be construed as any indication that appellant has, in any way, proved her allegations. The question of proof of those allegations was not before the trial court and is not before us in this appeal. We express no opinion thereon.

The judgment of the trial court is reversed and the cause is remanded for further proceedings.