Opinion issued June 15, 2023
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-21-00648-CV ——————————— RAVEN SIMONE POPE, Appellant V. SHELLY MARIE PERRAULT F/K/A SHELLY MARIE MELANCON, Appellee
On Appeal from the 300th District Court Brazoria County, Texas Trial Court Case No. 113216-F
MEMORANDUM OPINION
This is an appeal of the trial court’s denial of a bill of review. In a prior
proceeding in a suit affecting the parent-child relationship, the trial court entered an
order appointing appellee Shelly Marie Perrault f/k/a Shelly Marie Melancon (“Perrault”) sole managing conservator of her grandson, who is the biological child
of appellant Raven Simone Pope. The order appointed Pope possessory conservator
of the child.
Pope filed a bill of review challenging the conservatorship appointment on
several grounds. The trial court set a preliminary hearing for Pope to present prima
facie proof of a meritorious defense to the prior suit. After the preliminary hearing
before an associate judge and a subsequent de novo preliminary hearing before the
trial judge, the trial court denied the bill of review and dismissed it in its entirety. In
four issues, Pope argues that the trial court erred by denying her bill of review
because: (1) the court ruled on issues outside the scope of the preliminary hearing,
specifically her claim that she was not served with process in the prior proceeding;
(2) the court exhibited bias and prejudice against some of her evidence; (3) she
presented prima facie proof that Perrault lacked standing in the prior proceeding;
and (4) she presented prima facie proof that Perrault did not overcome the
presumption that it was in the child’s best interest to have Pope—his mother—
appointed as his conservator. We reverse and remand.
2 Background
Pope gave birth to her second child, J.J.D. (“James”), in February 2018.1 She
was twenty years old at the time and had an older daughter, who is James’s half-
sibling. Perrault is James’s paternal grandmother.
A. SAPCR Proceeding
In May 2018, shortly after James was born, Perrault filed an original petition
in a suit affecting the parent-child relationship (“SAPCR”) requesting that she be
appointed James’s conservator. Her petition alleged that she had standing under
Family Code section 102.004. The petition further stated that “[n]o service is
necessary at this time” upon Pope.2
At the end of May, the court entered a temporary order appointing Perrault as
the temporary sole managing conservator of James and appointing Pope as a
temporary possessory conservator. The order stated that no party appeared in person
for a hearing on the order but that Perrault and Pope had both agreed to the terms of
the order as evidenced by their signatures on the order.
In August 2018, the court entered a final order appointing Perrault as James’s
sole managing conservator and appointing Pope as James’s possessory conservator.
1 We refer to J.J.D., who is a minor child, by a pseudonym to protect his privacy. 2 Perrault also named James’s father, Johnny Demease, as a respondent in the SAPCR proceeding. Demease died after the SAPCR proceeding concluded. He therefore was not a party to the bill-of-review proceeding, and he is not a party to this appeal.
3 This final order stated that Perrault did not appear in person for a hearing on the
SAPCR petition but that she agreed to the terms of the order as evidenced by her
signature. The order did not recite whether Pope had appeared or agreed to the
order’s terms, but her signature appeared below Perrault’s signature on the order as
“approved and consented to as to both form and substance.”
Pope, proceeding pro se, filed a notice of appeal of the final order. The
appellate record does not indicate the outcome of this appeal, although the parties’
appellate briefs appear to agree that Pope did not pursue the appeal. Pope also filed
an original answer and a motion for new trial.
The trial court held a hearing on Pope’s motion for new trial. Pope appeared
and proceeded pro se. She testified that child protective services (“CPS”) was
involved with the family when James was born, so she decided to allow James and
her daughter to live with Perrault temporarily because it was her understanding that
CPS would close its case if she did so. Pope also understood that once CPS closed
its case, her children would be returned to her.
Pope also testified that, unbeknownst to her, Perrault had filed the SAPCR
petition seeking to be appointed as James’s conservator. Pope testified that she did
not sign the temporary or final SAPCR orders. Rather, Perrault had presented Pope
with a single blank page and requested that Pope sign it. Perrault represented to Pope
that the signature was for a power of attorney. Pope signed the page without reading
4 it because she trusted Perrault. Perrault then allegedly used Pope’s signature to
indicate Pope’s agreement to the terms of the SAPCR orders. A CPS caseworker
eventually sent Pope the SAPCR orders she had purportedly signed, but Pope
testified that she had never seen the documents before. After CPS closed its case,
Perrault refused to return Pope’s children, although Perrault had returned Pope’s
daughter by the time of the hearing on the motion for new trial.
At the end of the hearing, the trial court orally denied the motion for new trial.
The court also signed a written order denying the motion. Pope subsequently
retained counsel and filed a combined motion to vacate a void order and to dismiss.
The appellate record does not show that the trial court ruled on this motion.
B. Bill of Review Proceeding
On June 11, 2021, with the assistance of new counsel, Pope filed an original
petition for bill of review in the SAPCR court. Pope’s petition primarily alleged that
she was not served with process in the SAPCR proceeding. She also alleged two
meritorious defenses to the SAPCR proceeding: Perrault lacked standing, and
Perrault did not overcome the presumption that awarding custody to a parent is in a
child’s best interest. Pope also alleged that Perrault had engaged in extrinsic fraud
by using Pope’s signature on the SAPCR orders. She further alleged that she was
neither at fault nor negligent in having the orders entered.
5 Pope attached several documents to her petition. In a sworn affidavit, Pope
averred that Perrault had her “sign a piece of paper with only my [Pope’s] name on
it, [Demease’s] name, and her [Perrault’s] name.” No other sheets of paper were
attached to the signature page, and Perrault represented that the signature would give
Perrault the power of attorney for James. Pope further averred that she was only
twenty years old at the time and “did not notice anything out of the ordinary or
suspicious about this at the time.” She later learned that Perrault had allegedly used
her signature to indicate that Pope agreed to the temporary SAPCR order. In addition
to her affidavit, Pope attached the original SAPCR petition, the temporary and final
SAPCR orders, and her answer and motion for new trial in the SAPCR case.
Three days after Pope filed her petition for bill of review, the trial court
entered an order setting “a preliminary hearing under Baker v. Goldsmith” for the
express purpose of determining whether Pope “is able to make a prima facie showing
of a meritorious defense to proceed to trial on the merits on the remaining grounds
alleged” in her petition. See 582 S.W.2d 404, 408–09 (Tex. 1979) (outlining trial
procedure and burdens of persuasion in bill-of-review proceeding). An associate
judge presided over this hearing. At the beginning of the hearing, Pope’s counsel
stated that the purpose of the hearing “is specifically just to show the prima facie
case in order to proceed to trial on the remaining Bill of Review grounds on fraud
and lack of negligence, on the lack of service.” Pope argued that she had three
6 meritorious defenses: her signature on the SAPCR order was obtained through fraud
or forgery; Perrault lacked standing in the SAPCR proceeding; and Perrault did not
meet her burden in the SAPCR proceeding to overcome the presumption that it was
in James’s best interest to have Pope, his mother, appointed as his managing
conservator.
The only evidence admitted at this hearing was the transcript from the hearing
on Pope’s motion for new trial in the SAPCR case, which Perrault introduced
without objection. At the end of the hearing, the associate judge took the matter
under advisement. In a letter ruling, the associate judge recommended denial of the
bill of review because Pope “failed to pursue her legal remedy of a direct appeal
after her Motion for New Trial was denied” in the SAPCR proceeding.
Pope filed a motion requesting a de novo preliminary hearing before the trial
court. The motion argued that the hearing before the associate judge was limited to
the determination of whether Pope could present prima facie proof of a meritorious
defense, but the associate judge’s ruling concerning her pursuit of a direct appeal
fell outside the scope of that hearing. The trial court granted the motion and set a
date for a de novo hearing.
At the start of the de novo hearing, Pope stated the hearing was “limited in
scope to specifically [] the issues of meritorious defenses.” Pope made the same
arguments she had made to the associate judge. She requested that the trial court take
7 judicial notice of the SAPCR proceeding, but the trial court did not respond. Pope
also argued that she had obtained a report from a forensic handwriting analyst, which
she had filed with the court. Perrault objected that the report was “outside of the
scope of the Baker hearing,” and the trial court sustained the objection.
At the end of the hearing, the trial court stated that it would “deny the bill of
review” because “there has not been a sufficient showing of no default or negligence
on [Pope’s] part which contributed to the entry of those orders.” The court
additionally remarked that Pope’s signatures “are all different” and expressed
uncertainty about “how an expert can tell you which one was which.” The trial court
subsequently signed an order denying all relief and dismissing the bill of review in
its entirety.3 The order stated that the trial court took “judicial notice of all pleadings
and contents contained in the Court’s files[.]”
Pope filed a motion for new trial. She argued that the trial court erred by
making findings outside the scope of a preliminary Baker hearing, violating her right
to due process by converting the preliminary hearing into a trial on the merits without
notice, expressing an opinion on the weight of the evidence concerning the
3 Pope filed a request for findings of fact and conclusions of law on November 17, 2021, more than twenty days after the trial court signed the judgment dismissing her bill of review on September 28, 2021. See TEX. R. CIV. P. 296 (requiring party to file written request for findings of fact and conclusions of law “within twenty days after judgment is signed”). The trial court did not file findings or conclusions. On appeal, Pope does not challenge the court’s failure to file findings and conclusions.
8 handwriting analysis before she could offer the report into evidence, and concluding
that she had not presented prima facie proof of a meritorious defense.
The trial court held a brief hearing on the motion for new trial. After Pope
argued her motion, the trial court said that it “didn’t make a determination that we
were having a limited scope or an open, full-scope hearing.” The court stated that
Pope’s remedy was by appeal and denied the motion for new trial. This appeal
followed.
Bill of Review
Pope challenges the dismissal of her bill of review in four issues on appeal.
First, she contends that the trial court violated her right to due process by dismissing
her bill of review after holding a preliminary Baker hearing that was limited in scope
to considering whether she presented prima facie proof of a meritorious defense. She
argues that her claim of non-service did not require prima facie proof to survive the
preliminary hearing stage, and therefore the trial court erred by prematurely
dismissing this claim. She also argues that the trial court erred to the extent it
dismissed her remaining claims based on her failure to present prima facie proof of
bill-of-review elements other than a meritorious defense.
In her second issue, which we discuss last, Pope argues that the trial court
violated her right to due process by commenting on her expert handwriting analysis
report. Pope argues that the comments exhibited judicial bias and prejudice.
9 In her third and fourth issues, Pope contends that she presented sufficient
prima facie proof of two meritorious defenses: (1) Perrault’s lack of standing, and
(2) Perrault’s failure to overcome the statutory presumption that it was in James’s
best interest to have his mother—Pope—appointed conservator.
A. Standard of Review
Appellate courts review a trial court’s ruling on a bill of review for abuse of
discretion. Joseph v. Jack, 624 S.W.3d 1, 6 (Tex. App.—Houston [1st Dist.] 2021,
no pet.); Woods v. Kenner, 501 S.W.3d 185, 190 (Tex. App.—Houston [1st Dist.]
2016, no pet.). However, whether a petitioner has presented prima facie proof of a
meritorious defense is a legal question that we review de novo. Baker, 582 S.W.2d
at 408–09; Ramsey v. State, 249 S.W.3d 568, 574 (Tex. App.—Waco 2008, no pet.);
Mosley v. Dallas Cnty. Child Protective Servs. Unit of the Tex. Dep’t of Protective
& Regul. Servs., 110 S.W.3d 658, 661 (Tex. App.—Dallas 2003, pet. denied).
B. Procedure for Bill of Review
A bill of review is an equitable proceeding to set aside a prior judgment that
is no longer challengeable by a motion for new trial or appeal. Caldwell v. Barnes,
154 S.W.3d 93, 96 (Tex. 2004) (per curiam); Baker, 582 S.W.2d at 406; see TEX. R.
CIV. P. 329b(f) (“On expiration of the time within which the trial court has plenary
power, a judgment cannot be set aside by the trial court except by bill of review for
sufficient cause, filed within the time allowed by law.”). A plaintiff seeking a bill of
10 review ordinarily must plead and prove: (1) a meritorious defense to the underlying
cause of action; (2) which the plaintiff was prevented from making by the fraud,
accident, or wrongful act of the opposing party or by official mistake; (3) unmixed
with any fault or negligence on their own part.4 Caldwell, 154 S.W.3d at 96. To
invoke the trial court’s equitable power, the petition must allege these elements
factually and with particularity. Baker, 582 S.W.2d at 408.
1. Ordinary Procedure
Ordinarily, courts use a two-step inquiry when deciding a bill of review that
is not based on a claim of non-service. Id. at 408–09; Beck v. Beck, 771 S.W.2d 141,
141–42 (Tex. 1989). This case solely concerns the first step.
Under the first step, prior to trial, the petitioner must present prima facie proof
of a meritorious defense. Baker, 582 S.W.2d at 408. This usually occurs during a
pretrial Baker hearing. See id.; see also Maree v. Zuniga, 502 S.W.3d 359, 365 (Tex.
App.—Houston [14th Dist.] 2016, no pet.) (stating that, prior to Baker hearing, trial
court may consider and rule on other bill-of-review elements raised in summary
judgment motion or in separate trial prior to deciding whether petitioner has prima
4 A petitioner may also seek a bill of review when the parties participated at trial and the losing party was prevented from filing a motion for new trial or appeal because of the fraud, accident, or a wrongful act of the opposing party or official mistake unmixed with any fault or negligence on the petitioner’s part. Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 244–46 (Tex. 1974). Neither party argues that the Petro-Chemical standard applies in this case. We therefore assume without deciding that Petro-Chemical does not apply here.
11 facie proof of meritorious defense); Ramsey, 249 S.W.3d at 576 (“The Baker pretrial
hearing is a ‘suggested procedure’ which a trial court may choose not to employ.”).
“This preliminary showing is essential in order to assure the court that valuable
judicial resources will not be wasted by conducting a spurious ‘full-blown’
examination of the merits.” Baker, 582 S.W.2d at 408. The “only relevant inquiry”
in this pretrial determination “is whether the petitioner has presented prima facie
proof of a meritorious defense.” Beck, 771 S.W.2d at 142.
A petitioner presents prima facie proof of a meritorious defense by
establishing that the defense is not barred as a matter of law and the petitioner would
be entitled to judgment on retrial if no evidence to the contrary is offered. Baker,
582 S.W.2d at 408–09; Maree, 502 S.W.3d at 365. This is a question of law for the
court to decide. Baker, 582 S.W.2d at 409. Prima facie proof may consist of
documents, answers to interrogatories, admissions, and affidavits as well as “other
evidence that the trial court may receive in its discretion.” Id. The respondent may
present evidence showing that the defense is barred as a matter of law, but factual
disputes are resolved in favor of the petitioner for purposes of this pretrial
determination. Id.
If the petitioner does not establish a prima facie meritorious defense, the court
should dismiss the case after this first step. Id.; see also Beck, 771 S.W.2d at 142. If,
however, the petitioner does establish a prima facie meritorious defense, then the
12 court should proceed to the second step: discovery and a trial on the merits of the
bill of review.5 Baker, 582 S.W.2d at 409; Boateng v. Trailblazer Health Enters.,
L.L.C., 171 S.W.3d 481, 488 (Tex. App.—Houston [14th Dist.] 2005, pet. denied).
If the petitioner proves her entitlement to a bill of review, the parties revert back to
their original status as plaintiff and defendant with the burden on the original plaintiff
to prove her case. Baker, 582 S.W.2d at 407–08, 409.
2. Slightly Modified Procedure for Claim of Non-Service
When a bill-of-review petitioner alleges lack of service, the two-step Baker
procedure is “slightly modified.” Caldwell, 154 S.W.3d at 97. A petitioner alleging
lack of service is relieved from proving the first and second elements of a bill of
review as to that claim, i.e., that she has a meritorious defense and that she was
prevented from asserting the defense by the fraud, accident, or wrongful act of her
opponent or by official mistake. Id. at 96–97; see Peralta v. Heights Med. Ctr., Inc.,
485 U.S. 80, 86–87 (1988) (holding that meritorious-defense element of bill of
review violates due process where petitioner had no notice of proceeding in which
default judgment was rendered against petitioner). The petitioner must still prove the
5 In this context, “trial” contemplates the possibility of a summary judgment on the motion of a party. Maree v. Zuniga, 502 S.W.3d 359, 362 n.2, 365 (Tex. App.— Houston [14th Dist.] 2016, no pet.); Boateng v. Trailblazer Health Enters., L.L.C., 171 S.W.3d 481, 488 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (“The trial court had discretion to entertain cross-motions for summary judgment before conducting a Baker hearing.”).
13 third and final element of a bill of review: the judgment was rendered unmixed with
any fault or negligence on the petitioner’s part. Caldwell, 154 S.W.3d at 97. This
third element is conclusively established by proof that the petitioner was never
served with process. Id. “Because proof of non-service conclusively negates a
plaintiff’s fault or negligence, then, the question of service is properly resolved at
trial and not by the trial court in a pretrial proceeding if the material facts are
disputed.” Id.; see Sozanski v. Plesh, 394 S.W.3d 601, 604 (Tex. App.—Houston
[1st Dist.] 2012, no pet.) (stating that issue of lack of service is pure question of fact
to be determined by factfinder).
Thus, for claims of non-service, the court should skip the first Baker step and
proceed directly to trial under the second step:
When a plaintiff claims lack of service, the trial court should: (1) dispense with any pretrial inquiry into a meritorious defense, (2) hold a trial, at which the bill of review plaintiff assumes the burden of proving that the plaintiff was not served with process, thereby conclusively establishing a lack of fault or negligence in allowing a default judgment to be rendered, and (3) conditioned upon an affirmative finding that the plaintiff was not served, allow the parties to revert to their original status as plaintiff and defendant with the burden on the original plaintiff to prove his or her case.
Caldwell, 154 S.W.3d at 97–98.
C. Preliminary Baker Hearings
In her first issue, Pope contends that the trial court erred by dismissing her
claim of non-service and by dismissing her remaining claims on grounds other than
14 a lack of prima facie proof of a meritorious defense. She argues that at the
preliminary Baker stage of the proceeding, the trial court was limited to determining
whether she presented prima facie evidence of meritorious defenses on the claims
other than her claim of non-service.
1. Notice and Scope of Preliminary Hearings
We first address the parties’ dispute about whether the preliminary hearing
was converted into a trial on the merits. Perrault does not dispute that the preliminary
hearings before the associate judge and the trial court were noticed as preliminary
Baker hearings for the express purpose of determining whether Pope could present
prima facie proof of a meritorious defense. Instead, Perrault argues that Pope did not
object to the admission of her prior testimony into evidence at the preliminary
hearing before the associate judge, which thereby “opened the door” to consideration
of the merits of all issues raised in Pope’s bill-of-review petition.
“An elementary and fundamental requirement of due process in any
proceeding which is to be accorded finality is notice reasonably calculated, under
the circumstances, to apprise interested parties of the pendency of the action and
afford them the opportunity to present their objections.” Peralta, 485 U.S. at 84
(quoting Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 314 (1950)).
“Failure to give notice violates ‘the most rudimentary demands of due process law.’”
Id. (quoting Armstrong v. Manzo, 380 U.S. 545, 550 (1965)).
15 The appellate record in this case shows that both hearings were noticed as
preliminary Baker hearings. See 582 S.W.2d at 408–09; see also Peralta, 485 U.S.
at 84 (stating that due process requires notice reasonably calculated to apprise
interested parties of lawsuit and afford them opportunity to present objections). The
notice for the first hearing before the associate judge expressly stated the hearing
would be a “preliminary hearing under Baker v. Goldsmith” to determine whether
Pope had prima facie proof of a meritorious defense.
Similarly, the notice of the de novo hearing before the trial court indicated
that its purpose was to reconsider the preliminary issue of meritorious defenses.
Although this notice did not express the purpose of the de novo hearing as clearly as
the notice of the initial preliminary hearing, it granted Pope’s motion requesting a
de novo hearing, not a trial on the merits. Perrault does not argue on appeal that these
notices constituted notice of a trial on the merits. We therefore conclude that the
hearing notices apprised Pope only that the court was holding a preliminary Baker
hearing, not a trial on the merits. See Peralta, 485 U.S. at 84.
Without citing any legal authority, Perrault nevertheless argues that the
preliminary hearing before the associate judge was converted into a trial on the
merits when Pope did not object to the introduction into evidence of her prior
testimony from the motion for new trial hearing. According to Perrault, this “opened
16 the door to the trial court considering more than just a meritorious defense . . . .” We
disagree.
Although Perrault correctly states that this prior testimony was admitted
without objection, neither Perrault’s argument on appeal nor the reporter’s record
clarifies the purpose for which Perrault introduced the evidence. The evidence was
admitted during Perrault’s argument disputing Pope’s claim that Perrault obtained
Pope’s signature on the SAPCR orders by fraud or forgery. Although this claim
primarily concerns the second element of a bill of review—whether fraud prevented
Pope from asserting a meritorious defense in the SAPCR proceeding—it also
concerns the meritorious defense element at issue in the preliminary hearing. As we
discuss below, Pope argues that the trial court in the SAPCR proceeding did not hold
a hearing or otherwise require Perrault to prove that she had standing to assert her
claims or that she was entitled to the relief she sought. Thus, our review of the record
indicates that the evidence was at least partially relevant to the issue of meritorious
defenses.
In any event, “[t]he fact that a preliminary Baker hearing at times addresses
irrelevant issues does not convert this preliminary hearing into a trial on the merits.”
Boateng, 171 S.W.3d at 491. Pope’s allegations are largely intertwined among the
various bill-of-review elements, and understanding her allegations requires some
consideration of the other elements. Indeed, both parties’ arguments relied on the
17 other elements to put the allegations into context. But discussing the other elements
did not convert the preliminary hearings into a trial on the merits. See id.
The totality of Perrault’s conduct at both preliminary hearings contradicts her
argument on appeal that the first Baker hearing was converted into a trial on the
merits. She did not object to or refute Pope’s arguments that both Baker hearings
were limited to the issue of meritorious defenses. To the contrary, Perrault objected
twice during the de novo hearing on the ground that Pope was arguing outside the
scope of a Baker hearing. Thus, Perrault’s conduct at both hearings indicates her
understanding of the limited nature of the preliminary hearing.
Finally, we note that the trial court “did not conduct the [de novo] hearing in
accordance with the usual order of proceedings for a trial, which begins with the
parties making opening statements followed by the introduction of evidence by the
party ‘upon whom rests the burden of proof on the whole case.’” See Barnes v.
Deadrick, 464 S.W.3d 48, 58 (Tex. App.—Houston [1st Dist.] 2015, no pet.)
(quoting TEX. R. CIV. P. 265). We further note that both notices of the hearings
provided less than the “reasonable notice of not less than forty-five days” required
for trial of a contested case. See TEX. R. CIV. P. 245; see Rodriguez v. Marcus, 564
S.W.3d 216, 221 (Tex. App.—El Paso 2018, no pet.) (“The forty-five days’ notice
provision [in Rule 245] is mandatory.”).
18 Contrary to Perrault’s unsupported arguments on appeal, our review of the
record shows that Pope was not put to her proof on the merits of her bill-of-review
claims. See Barnes, 464 S.W.3d at 58. Therefore, we conclude that the preliminary
hearings preceding dismissal of the bill of review in this case were limited to the first
step in the Baker procedure: determining whether Pope presented prima facie proof
of a meritorious defense. See 582 S.W.2d at 408–09; see also Beck, 771 S.W.2d at
142. To the extent the trial court dismissed the bill-of-review petition on a ground
other than lack of prima facie proof of a meritorious defense, the trial court erred
because it exceeded the scope of a preliminary Baker hearing.
2. Claim of Non-Service
As stated above, a petitioner is not required to establish prima facie proof of
a claim of non-service to proceed to trial on that claim. Caldwell, 154 S.W.3d at 97.
When the material facts regarding non-service are disputed, the issue is a pure
question of fact to be resolved by the trier of fact. Id.; Sozanski, 394 S.W.3d at 604.
Thus, for claims of non-service, the court should skip the first Baker step—a
showing of prima facie proof of a meritorious defense—and proceed to trial.
Caldwell, 154 S.W.3d at 97. From our conclusion above that the hearings were
preliminary Baker hearings, it necessarily follows that the non-service claim was not
ripe for dismissal. See id.
19 Perrault argues on appeal that Pope did not prove her non-service claim at the
Baker hearing and urges that the Court must give “proper deference” to “the trial
court’s resolution of historical facts and conflicts in testimony.” We decline to do
so. Perrault’s contention that the trial court resolved facts and conflicting evidence
confirms that genuine issues of material fact exist concerning the non-service issue.
Therefore, the issue presents a pure question of fact to be decided by the factfinder,
not by the trial court at a preliminary Baker hearing. See id.; Sozanski, 394 S.W.3d
at 604. We hold that the trial court abused its discretion by dismissing Pope’s claim
of non-service at the preliminary Baker stage of this bill-of-review proceeding. See
Joseph, 624 S.W.3d at 6 (stating that trial court abuses its discretion by acting
without reference to guiding rules or principles).
3. Remaining Claims
Pope next argues that her right to due process was violated because findings
by the associate judge and the trial court were outside the scope of the Baker hearing,
and therefore the findings could not support dismissal of her remaining claims.
Specifically, she challenges the associate judge’s statement in a letter ruling that the
bill of review should be dismissed because Pope “failed to pursue her legal remedy
of a direct appeal after her Motion for New Trial was denied” in the SAPCR
proceeding. She also challenges the trial court’s comment during the de novo
preliminary hearing that the court would “deny the bill of review” because “there
20 has not been a sufficient showing of no default or negligence on [Pope’s] part which
contributed to the entry of those orders” in the SAPCR proceeding.
In a case tried without a jury, “any party may request the court to state in
writing its findings of fact and conclusions of law.” TEX. R. CIV. P. 296. “Findings
of fact shall not be recited in a judgment.” TEX. R. CIV. P. 299a. Findings of fact filed
by the court “shall form the basis of the judgment upon all grounds of recovery and
of defense embraced therein.” TEX. R. CIV. P. 299. In the absence of written findings
of fact and conclusions of law, the trial court’s judgment must be affirmed if it can
be upheld on any legal theory supported by the evidence. In re W.E.R., 669 S.W.2d
716, 717 (Tex. 1984) (per curiam); Barnes, 464 S.W.3d at 55.
In this case, the record shows that the trial court did not file findings of fact
or conclusions of law after it entered judgment dismissing the bill of review. Pope
filed a request for findings and conclusions, but it appears that the request was not
timely. See TEX. R. CIV. P. 296 (stating that party’s request for findings of fact and
conclusions of law “shall be filed within twenty days after judgment is signed”);
Howe v. Howe, 551 S.W.3d 236, 243 (Tex. App.—El Paso 2018, no pet.) (stating
that untimely request for findings and conclusions waives party’s right to complain
of trial court’s failure to prepare findings and conclusions). Regardless of the
timeliness of the request, however, Pope does not raise any issue on appeal
concerning the trial court’s failure to file findings of fact and conclusions of law.
21 Instead, she challenges only the associate judge’s statement in the letter ruling and
the trial court’s comments from the bench.
The associate judge’s statement in the letter ruling does not constitute a
finding that is reviewable on appeal. After the associate judge entered the order,
Pope filed a request for a de novo hearing before the trial court specifying that she
sought consideration of all issues considered by the associate judge. See TEX. FAM.
CODE § 201.015(a), (b) (providing that any party may request “de novo hearing
before the referring court” by specifying issues to be presented to court). The trial
court granted the request and held a de novo hearing. Because Pope filed a timely
request for a de novo hearing, the associate judge’s order did not become an order
of the referring trial court. See id. § 201.013(b). The trial court could consider the
record from the hearing before the associate judge, see id. § 201.015(c), but the de
novo hearing was “a new and independent action on those issues raised” in the
request for a de novo hearing. See In re R.R., 537 S.W.3d 621, 622–23 (Tex. App.—
Austin 2017, no pet.) (citation omitted). Thus, the statements in the associate judge’s
letter ruling do not constitute findings that are reviewable on appeal.
Furthermore, the trial court’s comments from the bench also do not constitute
findings or conclusions that are reviewable on appeal. It is well established that oral
comments from the bench cannot substitute for written findings of fact and
conclusions of law. In re Jane Doe 10, 78 S.W.3d 338, 340 n.2 (Tex. 2002); In re
22 W.E.R., 669 S.W.2d at 716; Haining v. Haining, No. 01-08-00091-CV, 2010 WL
1240752, at *15 (Tex. App.—Houston [1st Dist.] Mar. 25, 2010, pet. denied) (mem.
op.).
Because the trial court did not file findings and conclusions, we must affirm
the trial court’s judgment on any legal theory that is supported by the evidence. See
In re W.E.R., 669 S.W.2d at 717; Barnes, 464 S.W.3d at 55. In subsequent issues,
Pope argues that the trial court erred to the extent it dismissed her claims other than
her non-service claim for lack of prima facie proof of meritorious defenses. Because
the meritorious-defense issues were the only issues properly before the trial court
when it dismissed the bill of review, these are the only grounds that can properly
support the trial court’s judgment. A lack of prima facie proof of a meritorious
defense is an independent ground that would properly support the dismissal of
Pope’s claims other than the non-service claim. We therefore cannot conclude that
the trial court abused its discretion by dismissing these claims on alternate grounds.
We discuss the meritorious-defense issues below.
Most of Perrault’s arguments on appeal address these alternate grounds for
dismissal. For example, she argues that Pope’s failure to file a direct appeal from the
SAPCR proceeding constitutes a negligent act, and therefore Pope cannot prevail on
a bill of review. Perrault further argues that Pope’s allegations of fraud concern
intrinsic fraud, which cannot support a bill of review. However, in a pretrial Baker
23 hearing, “the only relevant inquiry is whether the petitioner has presented prima
facie proof of a meritorious defense.” Beck, 771 S.W.2d at 142 (reversing court of
appeals’ decision affirming trial court’s dismissal of bill of review after Baker
hearing on ground other than lack of prima facie proof of meritorious defense);
Maree, 502 S.W.3d at 366–67 (reversing trial court’s dismissal of bill of review
based on petitioner’s failure to prove at Baker hearing that judgment was rendered
unmixed with any fault or negligence on petitioner’s part). “A bill-of-review
proceeding . . . may not be summarily dismissed for a reason other than the failure
to make a prima facie showing of a meritorious claim or defense.” Ramsey, 249
S.W.3d at 577. Therefore, we do not consider Perrault’s arguments concerning the
other elements of a bill of review.
We sustain Pope’s first issue to the extent she argues that the trial court erred
by dismissing her claim of non-service at the preliminary Baker stage of the bill-of-
review proceeding. We overrule the remainder of her first issue.
D. Prima Facie Proof of Meritorious Defenses
In her third and fourth issues, Pope argues that the trial court erred by
dismissing her bill of review on her two remaining claims for lack of prima facie
evidence of a meritorious defense. Specifically, Pope argues that she presented
prima facie proof that Perrault lacked standing to bring the SAPCR proceeding and
that Perrault did not overcome the presumption that it was in James’s best interest to
24 have his mother (Pope) appointed as his conservator over a non-parent (Perrault).
These two issues challenge fundamental aspects of the SAPCR proceeding:
Perrault’s authority to initiate the SAPCR proceeding and her entitlement to the
relief which she sought and was awarded. We review these issues of law de novo.
See, e.g., Baker, 582 S.W.2d at 408–09; Ramsey, 249 S.W.3d at 574; Mosley, 110
S.W.3d at 661.
1. Lack of Standing
In her third issue, Pope contends that Perrault lacked standing under three
sections of the Family Code: section 102.003(a)(9) and subsections (a)(1) and (a)(2)
of section 102.004. Pope argues that the trial court did not determine the threshold
issue of standing in the SAPCR proceeding.
Standing is implicit in the concept of subject-matter jurisdiction, and it is a
threshold issue in a child custody proceeding. Rolle v. Hardy, 527 S.W.3d 405, 415
(Tex. App.—Houston [1st Dist.] 2017, no pet.). “Subject matter jurisdiction is never
presumed and cannot be waived.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852
S.W.2d 440, 443–44 (Tex. 1993). Ordinarily, “standing is based on the existence of
certain facts, not the existence of certain proof.” Rolle, 527 S.W.3d at 415 (quoting
In re K.D.H., 426 S.W.3d 879, 884 (Tex. App.—Houston [14th Dist.] 2014, no
pet.)); see also Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 226–27
(Tex. 2004) (holding that, in determining issue of subject-matter jurisdiction, courts
25 construe pleadings liberally in plaintiff’s favor and consider relevant evidence
submitted by parties when necessary to resolve jurisdictional issue).
The Legislature has, however, set forth a different standard when questions of
standing impact a parent’s right to make decisions about how to best care for her
children free from interference by nonparents. Rolle, 527 S.W.3d at 415; see also
Troxel v. Granville, 530 U.S. 57, 68, 72–73 (2000) (recognizing presumption that fit
parents act in best interests of their children and holding that absent evidence parent
is not fit, Due Process Clause protects parental decisions from interference by state
courts and other government officials). In a child custody suit, “[a] party seeking
relief must allege and establish standing within the parameters of the language used
in the statute.” Compton v. Pfannenstiel, 428 S.W.3d 881, 885 (Tex. App.—Houston
[1st Dist.] 2014, no pet.) (quoting In re McDaniel, 408 S.W.3d 389, 397 (Tex.
App.—Houston [1st Dist.] 2011, orig. proceeding)).
As a meritorious defense to the SAPCR proceeding, Pope’s bill-of-review
petition alleged that Perrault had the burden to establish standing in the SAPCR
proceeding, but she lacked standing under Family Code sections 102.003(a)(9) and
102.004(a). Perrault does not dispute that these allegations met Pope’s burden to
allege standing as a meritorious defense. See Baker, 582 S.W.2d at 408.
Pope attached several documents to her petition. Relevant here, Pope attached
Perrault’s SAPCR petition alleging that Perrault had “standing to bring this suit in
26 that pursuant to Section 102.004 of the Texas Family Code, . . . the order requested
is necessary because the child’s present circumstances would significantly impair
the child’s physical [] health or emotional development.” This allegation references
standing under section 102.004(a)(1). See TEX. FAM. CODE § 102.004(a)(1).
Perrault’s SAPCR petition did not, however, mention or allege standing under either
section 102.004(a)(2) or section 102.003(a)(9). The petition broadly cited to section
102.004(a), but subsection (a)(2) applies only if the parent filed or consented to the
suit. See id. § 102.004(a)(2). The petition does not contain any allegation that Pope
filed or consented to the SAPCR suit.
Perrault had the burden in the SAPCR proceeding to allege the basis of her
standing and, to the extent she alleged standing under section 102.004, to provide
“satisfactory proof” of her standing. See Rolle, 527 S.W.3d at 416; Compton, 428
S.W.3d at 885; TEX. FAM. CODE § 102.004(a). Because Perrault’s SAPCR petition
failed to allege either section 102.003(a)(9) or section 102.004(a)(2) as bases for
standing, the SAPCR petition is prima facie proof—if not conclusive proof—that
Perrault lacked standing under either of these two sections. See Baker, 582 S.W.2d
at 408–09 (stating that petitioner presents prima facie proof of meritorious defense
by establishing defense is not barred as matter of law and petitioner will be entitled
to judgment on retrial if no contrary evidence is offered).
27 Perrault’s SAPCR petition alleged section 102.004(a)(1) as the sole basis for
standing. Section 102.004(a)(1) provides:
In addition to the general standing to file suit provided by Section 102.003, a grandparent . . . may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:
(1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s physical health or emotional development . . . .
TEX. FAM. CODE § 102.004(a)(1). A party seeking grandparent standing under
section 102.004 is thus statutorily required to establish standing with “satisfactory
proof.” Id. § 102.004(a); Compton, 428 S.W.3d at 885; see Rolle, 527 S.W.3d at 416
(stating that section 102.004(a) is unusual because Legislature conferred standing on
certain parties based on existence of proof rather than pleading of facts).
“Satisfactory proof” is proof established by a preponderance of the evidence as the
facts existed at the time the suit was filed. Compton, 428 S.W.3d at 885. If a plaintiff
fails to establish standing, then the trial court must dismiss the suit. Id.
Pope’s bill-of-review petition attached the temporary and final orders in the
SAPCR proceeding. The relevant portions of both of these orders are substantially
similar. The temporary order states that the trial court heard the application for
temporary orders, neither Perrault nor Pope appeared in person, and Perrault and
Pope had agreed to the terms of the order as evidenced by the signatures appearing
on the order. The final order similarly states that the trial court heard the case,
28 Perrault did not appear in person, and Perrault had agreed to the terms of the order
as evidenced by her signature. Notably, however, the final order did not state
whether Pope appeared or agreed to the terms of the order, although her purported
signature appears on the order.
Neither order shows that Perrault presented any evidence of standing. See id.
(stating that section 102.004(a) requires “satisfactory proof” of standing). Rather,
the orders indicate that the trial court entered the orders based on Pope’s purported
agreement to their terms. The problem, however, is that Perrault did not allege
consent as a basis for standing or provide satisfactory proof of her standing under
section 102.004(a)(2). Standing cannot be waived by agreement of the parties. Tex.
Ass’n of Bus., 852 S.W.2d at 443–44.
On their face, these orders are prima facie proof that Perrault did not meet her
burden to present satisfactory proof to the court that the orders were necessary
because James’s then-present circumstances would significantly impair his physical
health or emotional development. See TEX. FAM. CODE § 102.004(a)(1); Compton,
428 S.W.3d at 885 (stating that “satisfactory proof” in section 102.004(a) is proof
by preponderance of evidence as facts existed when suit was filed). Standing is not
a defense that is barred as a matter of law, and these orders establish that Pope would
be entitled to judgment on a retrial of the SAPCR proceeding if Perrault offered no
evidence to the contrary. See Baker, 582 S.W.2d at 408–09. Because Perrault had
29 the burden to plead and prove standing in the SAPCR proceeding, a lack of evidence
of standing on retrial would entitle Pope to dismissal of the SAPCR proceeding.
Accordingly, we conclude that Pope presented prima facie proof of lack of standing
in the SAPCR proceeding.
On appeal, Perrault points to a CPS document as satisfactory proof that the
SAPCR orders were necessary because James’s then-present circumstances would
significantly impair his physical health or emotional development.6 See TEX. FAM.
CODE § 102.004(a)(1). However, at the preliminary bill-of-review stage, factual
disputes are resolved in favor of Pope, and Perrault was limited to presenting proof
that the defense was barred as a matter of law. See Baker, 582 S.W.2d at 409. The
CPS document does not show that the defense was barred as a matter of law. At best,
the document raises a fact issue concerning whether Perrault presented satisfactory
proof of her standing.
We conclude that Pope presented prima facie proof that Perrault lacked
standing under section 102.004(a)(1). Therefore, we hold that the trial court erred by
dismissing the bill of review on this claim. We sustain Pope’s third issue.
6 This document was introduced into evidence at a hearing on a motion for new trial in the SAPCR proceeding, which occurred after the trial court entered both SAPCR orders. Perrault does not argue or show that either document was before the trial court when it entered the orders.
30 2. Failure to Overcome Parental-Custody Presumption
In her fourth issue, Pope argues that the trial court erred by dismissing her
second meritorious defense: Perrault did not overcome the presumption that it was
in James’s best interest to have Pope, his mother, appointed as his managing
conservator. Pope’s arguments are similar to those she raised for standing. That is,
Pope contends that the trial court did not hold an evidentiary hearing or a trial on the
merits in the SAPCR proceeding, and therefore Perrault could not have presented
evidence to overcome the presumption. Perrault does not address this issue on
appeal.
The United States Constitution “protects the fundamental right of parents to
make decisions concerning the care, custody, and control of their children.” In re
C.J.C., 603 S.W.3d 804, 807 (Tex. 2020) (orig. proceeding) (quoting Troxel, 530
U.S. at 66). Both the United States Supreme Court and the Texas Supreme Court
have recognized a presumption that fit parents act in their children’s best interest.
Troxel, 530 U.S. at 68; In re C.J.C., 603 S.W.3d at 807. Thus, when a court is called
upon to determine conservatorship between a parent and a nonparent, “a
presumption exists that appointing the parent as the sole managing conservator is in
the child’s best interest; this presumption is deeply embedded in Texas law.” In re
F.E.N., 542 S.W.3d 752, 769 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
(citation omitted); accord In re C.J.C., 603 S.W.3d at 812.
31 The presumption is codified in the Family Code:
[U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
TEX. FAM. CODE § 153.131(a); see In re C.J.C., 603 S.W.3d at 812–13 (stating that
section 153.131(a) is “a statutory parental presumption applicable to original
custody determinations”). Section 153.131(a) “creates a parental preference by
placing the burden on the non-parent seeking conservatorship to establish that the
parent’s appointment would result in significant impairment to the child.” In re
F.E.N., 579 S.W.3d 74, 77 (Tex. 2019) (per curiam) (denying petition for review).
For substantially similar reasons as those discussed above concerning
standing, we conclude that Pope presented prima facie proof that Perrault did not
overcome the parental-preference presumption that would entitle Perrault, the
grandmother, to be appointed as James’s conservator over Pope, the mother. As
discussed above, both SAPCR orders indicated that the trial court believed the case
to be an agreed case, and therefore the trial court entered the orders without holding
an evidentiary hearing or otherwise requiring Perrault to present proof to overcome
this presumption. Perrault bore the burden on this issue in the SAPCR proceeding.
See id. If Perrault offered no evidence to the contrary on retrial of the SAPCR case,
Pope would be entitled to judgment because Perrault did not meet her burden to rebut 32 the parental-preference presumption. See Baker, 582 S.W.2d at 408–09; Maree, 502
S.W.3d at 365. We hold that the trial court erred by dismissing the bill of review on
this ground. We sustain Pope’s fourth issue.
E. Evidentiary Issue
Finally, in her second issue, Pope argues that the trial court violated her right
to due process by making prejudicial and biased comments about an expert
handwriting analysis of Pope’s signatures on the SAPCR orders.
In the de novo preliminary hearing before the trial court, Pope attempted to
rely on an expert report from a forensic handwriting analyst to support her claims
that her signatures on the SAPCR orders were obtained by Perrault’s fraud or
forgery. The report had been filed with the court, but Perrault objected to
consideration of the report on the ground that it was outside the scope of the Baker
hearing. The trial court sustained the objection. At the end of the hearing, the court
stated:
And I have two signatures, if not more in the current pleadings. I’m not a handwriting expert; but just looking at them, they are all different. I don’t know how an expert can tell you which one was which. And there are enough differences on all of them for there to be—everybody has different signatures.
To preserve error for appellate review, the record must show that the
complaining party made a timely objection to the trial court stating the specific
grounds for the complaint. TEX. R. APP. P. 33.1(a)(1)(A). A party’s failure to object
33 can waive even errors involving constitutional rights. In re J.B., 605 S.W.3d 650,
656 (Tex. App.—Houston [1st Dist.] 2020, no pet.). The Texas Supreme Court has
held that an “objection to a trial court’s alleged improper conduct or comment must
be made when it occurs if a party is to preserve error for appellate review, unless the
conduct or comment cannot be rendered harmless by proper instruction.” Dow
Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam); see State v.
Wilemon, 393 S.W.2d 816, 818 (Tex. 1965). Because Pope did not object to the trial
court’s comments when they were made, Pope has not preserved this claim of error
for review. See TEX. R. APP. P. 33.1(a)(1); Dow Chem., 46 S.W.3d at 241; In re
M.J.M., 406 S.W.3d 292, 299–300 (Tex. App.—San Antonio 2013, no pet.)
(concluding that party’s failure to object to trial judge’s remarks when made waived
appellate review of those remarks).
But even if Pope had not waived this complaint, we have already reversed the
entirety of the trial court’s judgment dismissing the bill of review. A favorable ruling
on this issue would not provide Pope any greater relief, and therefore a decision on
this issue is not “necessary to final disposition of the appeal.” See TEX. R. APP. P.
47.1. On remand, the trial court may consider the admissibility of the expert report
if Pope chooses to introduce it into evidence. We overrule Pope’s second issue.
34 Conclusion
We reverse the trial court’s judgment dismissing Pope’s bill of review and
remand for further proceedings.
April L. Farris Justice
Panel consists of Justices Hightower, Rivas-Molloy, and Farris.