Morris v. Morris

759 S.W.2d 707, 1988 Tex. App. LEXIS 2795, 1988 WL 120269

• Court: Court of Appeals of Texas
• Decided: August 24, 1988
• Docket: No. 04-87-00657-CV
• Status: Published

Opinions

OPINION

CHAPA, Justice.

This is an appeal by appellant, John J. Morris, from an adverse judgment in a bill of review to set aside a default divorce judgment granted to appellee, Sylvia Vale Morris. The sufficiency of the service by publication in conjunction with the granted default judgment is challenged by appellant.

The critical issues which dispose of this appeal are

1) whether the case involves intrinsic or extrinsic fraud; and

2) whether establishing a meritorious defense is necessary to prevail in a bill of review under these circumstances.

On March 14, 1984, appellee signed and filed a divorce petition with an attached sworn Affidavit for Citation by Publication contending that the whereabouts of appellant were unknown to her and that after exercising due diligence to locate appellant, she was unable to do so. Appellant and appellee had been married for twenty years. On June 7, 1984, a default divorce was granted to appellee based on a Statement of Evidence that reflects appellee testified under oath she did not know the whereabouts of appellant and that “there is no place where [she] can go to find [appellant’s] latest or present address.” The court awarded appellee all the property of the marriage except what appellant might have with him at the time of the divorce.

Apparently unaware that he was divorced, appellant filed his suit for divorce on April 29, 1986, serving appellee personally. On February 6, 1987, appellant’s divorce suit was dismissed because of the previously granted default divorce in June, 1984. The bill of review was filed on March 3, 1987, and this appeal followed the trial court’s denial of relief.

The record reflects that during the period between March 1984 and June 1984, when appellee contended under oath that she was unaware of the whereabouts of the appellant and could not find him through due diligence:

1) Appellee received and endorsed several checks signed by the appellant which had appellant’s address, and telephone number in Florida;

2) Appellee contacted appellant at the same telephone number on the checks;

3) Appellee mailed to appellant a letter from the Housing Authority to the same address on the checks;

4) Appellee told her attorney appellant’s address on the checks, and did not send a copy of the divorce petition to appellant because, “my lawyer did not instruct me to give [appellant] a copy”; and

5) Appellee prepared and filed the 1982 Tax Return for both appellant and appellee on March 17, 1984 indicating appellant was out of state looking for employment.

Appellee testified she did not attempt to notify appellant about the divorce until June 1984 when she contended she told him verbally. She also admitted visiting appellant and staying with him in Florida during the month of December 1984 and not discussing the divorce at all.

Appellant testified that he was in contact with appellee and their children during the time in question and that appellee knew at all times his address and telephone number in Florida. Appellant further testified that he would have had no reason to file for his own divorce in 1986 if he had known about the June 1984 default divorce. He also contended that he first became aware of the 1984 divorce when his divorce action was dismissed in February 1987 because of the June 1984 default divorce. Appellant also complained that the court’s awarding of 100% of the community property to the appellee in the June 1984 decree was unfair because he had always worked and contributed to the family income.

Because both parties agree that only extrinsic fraud can provide the basis for relief in a bill of review, the initial issue is whether this case involves extrinsic fraud.

... Only extrinsic fraud will entitle a complainant to relief because it is a wrongful act committed “by the other party to the suit which has prevented the losing party either from knowing about his rights or defenses, or from having a fair opportunity of presenting them upon the trial. Such, for instance, as where he has been misled by his adversary by fraud or deception, did not know of the suit, or was betrayed by his attorney. In other words, fraud which denied him the opportunity to fully litigate upon the trial all the rights or defenses he was entitled to assert. (Emphasis added).

* * * * * *

The Supreme Court of the United States gives these illustrations of extrinsic fraud: “Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff ” United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93 (1878). (Emphasis added).

Alexander v. Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 1001-1002 (1950).

... Only extrinsic fraud will entitle petitioners to bill of review relief. Alexander v. Hagedorn, Id. at 574, 226 S.W.2d at 1001.

We have stated or expressly approved that extrinsic fraud is that fraud which denies a losing litigant the opportunity to fully litigate his rights or defenses upon trial. Id. Extrinsic fraud is “collateral” fraud in the sense that it must be collateral to the matter actually tried and not something which was actually or potentially in issue in the trial. Crouch v. McGaw, 134 Tex. 633, 639, 138 S.W.2d 94, 97 (1940). Extrinsic fraud is conduct that prevents a real trial upon the issues involved. O’Meara v. O’Meara, 181 S.W.2d 891, 893 (Tex.Civ.App. — San Antonio 1944, writ ref’d). (Emphasis added).

Montgomery v. Kennedy, 669 S.W.2d 309, 312-13 (Tex.1984).

Appellant contends that because of ap-pellee’s fraud in causing a citation by publication to issue when personal service was appropriate, he was not afforded an opportunity to litigate upon the trial all his rights and defenses. If appellant’s contention is correct, we clearly have an appeal involving extrinsic fraud. United States v. Throckmorton, supra; Montgomery v. Kennedy, supra; Alexander v. Hagedom, supra.

A review of the record establishes that appellee was aware of the whereabouts of appellant from the time the citation by publication was issued on March 14, 1984, until the time the divorce was granted in June, 1984, and that due diligence would have resulted in personal notification to the appellant. We hold that extrinsic fraud was established by the evidence.

The next critical issue is whether under these circumstances, establishing a meritorious defense is a pre-requisite to obtaining relief by way of a bill of review.

In Mullane v. Central Hanover B. & T. Co., the United States Supreme Court held that citation by publication violated the Fourteenth Amendment rights of an interested party whose whereabouts are known, stating:

As to known present beneficiaries of known place of residence, however, notice by publication stands on a different footing. Exceptions in the name of necessity do not sweep away the rule that within the limits of practicability notice must be such as is reasonably calculated to reach interested parties. Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.

The trustee has on its books the names and addresses of the income beneficiaries represented by appellant, and we find no tenable ground for dispensing with a serious effort to inform them personally of the accounting, at least by ordinary mail to the record addresses. (Emphasis added).

* * * * * *

Publication may theoretically be available for all the world to see, but it is too much in our day to suppose that each or any individual beneficiary does or could examine all that is published to see if something may be tucked away in it that affects his property interests. We have before indicated in reference to notice by publication that, “Great caution should be used not to let fiction deny the fair play that can be secured only by a pretty close adhesion to fact.” McDonald v. Mabee, 243 US 90, 91, 61 L ed 609, 37 S Ct 343, 343, (1917) LRA 1917F 458.

We hold that the notice by publication of judicial settlement of accounts required by the New York Banking Law § 100-c(12) is incompatible with the requirements of the Fourteenth Amendment as a basis for adjudication depriving known persons whose whereabouts are also known of substantial property rights. Accordingly the judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed. (Emphasis added).

Mullane v. Central Hanover B. & T. Co., 339 U.S. 306, 318-320, 70 S.Ct. 652, 659-60, 94 L.Ed. 865, 875-77 (1950).

In the Matter of the Marriage of Peace, the Amarillo Court of Appeals held that a judgment based on service by publication under facts extremely similar to those before us “[did] not pass constitutional muster,” even if the complaining party actually knew of the pending divorce, stating:

... Service by publication is the method of notice which is least calculated to bring to the potential defendant’s attention the pendency of a judicial action. See Mullane, 339 U.S. at 315, 70 S.Ct. at 657. The Supreme Court added, in Schroeder v. New York, 371 U.S. 208, 212-13, 83 S.Ct. 279, 282-83, 9 L.Ed.2d 255 (1962), the following:

The general rule that emerges from the Mullane Case is that notice by publication is not enough with respect to a person whose name and address are known or very easily ascertainable and whose legally protected interests are directly affected by the proceedings in question. “Where the names and post-office addresses of those affected by a proceeding are at hand, the reasons disappear for resort to means less likely than the mails to apprise them of its pendency.” 399 U.S., at 318, 70 S.Ct. at 659.

Under all of the circumstances of this case, service by publication in the Friona Star located in Parmer County, Texas was not reasonably calculated to apprise Guadalupe of the pendency of the action and afford her an opportunity to present objections to the action. By his testimony at the hearing on the motion for new trial, Charles admitted that he knew where to send mail to Guadalupe in Mexico and that he had sent at least one letter to her Mexico address. Furthermore, the trial court’s finding that Guadalupe knew of the pendency of Charles’ action for a divorce for a long period of time and made no effort to file an answer and contest the action in any way does not aid or support the trial court’s jurisdiction to render the 28 February 1980 judgment for divorce. See Wuchter v. Pizzutti, 276 U.S. 13, 24-25, 48 S.Ct. 259, 262-263, 72 L.Ed. 446 (1928); United States v. Smith, 398 F.2d 173, 177-78 (3rd Cir.1968).

The judgment is reversed and the action is remanded to the trial court for a new trial.

Matter of Marriage of Peace, 631 S.W.2d 790, 794 (Tex.App. — Amarillo 1982, no writ).¹

In Peralta v. Heights Medical Center, Inc., the United States Supreme Court held that in a bill of review, a showing of a meritorious defense is not necessary in setting aside a judgment entered without proper notice to appellant, stating:

... The Texas court held that the default judgment must stand absent a showing of a meritorious defense to the action in which judgment was entered without proper notice to appellant, a judgment that had substantial adverse consequences to appellant. By reason of the Due Process Clause of the Fourteenth Amendment, that holding is plainly infirm.

Where a person has been deprived of property in a manner contrary to the most basic tenents of due process, “it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.” Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027 (1915). As we observed in Armstrong v. Manzo, supra, 380 U.S., [545] at 552, 85 S.Ct. [1187] at 1191 [14 L.Ed.2d 62 (1965) ] only “wipftng] the slate clean ... would have restored the petitioner to the position he would have occupied had due process of law been accorded to him in the first place.” The Due Process Clause demands no less in this case.

The judgment below is Reversed.

Peralta v. Heights Medical Center, Inc., — U.S.—, 108 S.Ct. 896, 900, 99 L.Ed. 2d 75, 82 (1988).

In the case before us, the publication notice to appellant was constitutionally infirm, and required relief without the necessity of a showing of a meritorious defense.² Peralta v. Height Medical Center, Inc., supra; Mullane v. Central Hanover B. & T. Co., supra; Matter of Marriage of Peace, supra.

The judgment is reversed, and the cause is remanded for a new trial.

1 . The dissent suggests that the case of the Matter of Marriage of Peace, only permits the testing of due diligence in a citation by publication within a 2 years period by a motion for new trial, and that a bill of review thereafter “is not the proper method to test the due diligence of a petitioner relying on citation by publication under rule 109.” It is manifestly unjust to hold that when a party improperly serves the opposite party with an improper citation by publication and the improper service remains obscured for more than two years, no relief is possible. We do not read Matter of Marriage of Peace to so hold.

Matter of Marriage of Peace not only holds . that the improper use of a citation by publication "does not pass constitutional muster” but that it makes the case jurisdictionally infirm. We cannot see how the passage of two years can cure constitutional and jurisdictional infirmities.

In this case, we note that the default divorce in question was granted appellee on June 7, 1984 and that appellant filed his action for.divorce on April 29, 1986. Although appellee filed an answer to the divorce proceeding of appellant thereafter, she failed to file her Plea of Res Judicata until February 6, 1987, more than 2 years after the date of the default divorce in question.

2 . Although we hold that a showing of a meritorious defense is not required under these circumstances, the record reflects evidence of a meritorious defense tried by consent in spite of general allegations of a meritorious defense in the pleadings. TEX.R.CIV.P. 67. Appellant testified, without objection, that the community property was purchased with earnings of both appellant and appellee, that he was gainfully employed and contributed to the community during the marriage, that he contributed to the community when he was away, that the tax records prepared by the appellee verified his contributions to the community, that he did not abandon the family but left because of his father's heart condition and was driven to the airport by appellee, and that had he known of the suit and been present he would have received something more than nothing.