Rebecca Martinez Abboud v. Guillermo Abboud Karam

• Court: Court of Appeals of Texas
• Decided: January 11, 2012
• Docket: 04-10-00633-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-10-00633-CV

Rebecca Martinez ABBOUD, Appellant

v.

Guillermo Abboud KARAM, Appellee

From the 111th Judicial District Court, Webb County, Texas Trial Court No. 2009CVQ0001719D2 The Honorable Joe Lopez, Judge Presiding

Opinion by: Catherine Stone, Chief Justice

Sitting: Catherine Stone, Chief Justice Sandee Bryan Marion, Justice Steven C. Hilbig, Justice

Delivered and Filed: January 11, 2012

AFFIRMED

Rebecca Martinez Abboud filed a bill of review seeking to set aside a divorce decree.

The trial court granted summary judgment in favor of Guillermo Abboud Karam. Rebecca

appeals, asserting the trial court erred in granting summary judgment because neither she nor

Guillermo satisfied the residency requirements to maintain a divorce suit in Texas. Rebecca also

contends the divorce decree was not a final judgment. We overrule Rebecca’s contentions and

affirm the trial court’s order. 04-10-00633-CV

BILL OF REVIEW

“A bill of review is an independent action to set aside a judgment that is no longer

appealable or subject to challenge by a motion for new trial.” Wembley Inv. Co. v. Herrera, 11

S.W.3d 924, 926-27 (Tex. 1999). “[A] bill of review is available only if a party has exercised

due diligence in pursuing all adequate legal remedies against a former judgment and, through no

fault of its own, has been prevented from making a meritorious claim or defense by the fraud,

accident, or wrongful act of the opposing party.” Id. at 927 (emphasis added). Rebecca contends

the trial court erred in granting summary judgment and denying her bill of review because

neither she nor Guillermo satisfied the residency requirements for maintaining a divorce petition

in Texas, which require either the petitioner or the respondent to have been a domiciliary of

Texas for six months and a resident of the county of suit for 90 days. See TEX. FAM. CODE ANN.

§ 6.301 (West 2006).

RESIDENCY REQUIREMENTS FOR DIVORCE PROCEEDING

Rebecca contends a genuine issue of material fact exists regarding whether the parties

were legal residents of Mexico and unable to meet the residency requirements to maintain a

Texas divorce proceeding. The residency requirements for maintaining a divorce petition in

Texas are not jurisdictional, but prescribe necessary qualifications for bringing an action for

divorce. In re Green, 352 S.W.3d 772, 776 (Tex. App.—San Antonio 2011, orig. proceeding);

Stallworth v. Stallworth, 201 S.W.3d 338, 345 (Tex. App.—Dallas 2006, no pet.). In granting

summary judgment, the trial court considered evidence that Rebecca filed the divorce petition,

stating that she had satisfied the residency requirements. Admissions in petitions for divorce

stating that the residency requirements of divorce are satisfied “are considered judicial

admissions in the case in which the pleadings are filed, and no additional proof is required of the

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admitted fact.” Barnard v. Barnard, 133 S.W.3d 782, 785 (Tex. App.—Fort Worth 2004, pet.

denied); Dokmanovic v. Schwarz, 880 S.W.2d 272, 277 (Tex. App.—Houston [14th Dist.] 1994,

no writ). Moreover, at the hearing before the trial court in which the parties requested approval

of their Rule 11 agreement pertaining to the terms of the final divorce decree, Rebecca’s attorney

stipulated that the residency requirements had been met. See Barnard, 133 S.W.3d at 785

(holding residency requirements satisfied through judicial admissions in pleadings and

stipulations consistent with such admissions); see also Prieto v. Prieto, No. 08-01-00477-CV,

2002 WL 31875985, at 2 (Tex. App.—El Paso Dec. 27, 2002, no pet.) (noting that stipulating to

residency and domicile is a common practice in divorce cases) (not designated for publication).

Accordingly, the trial court did not err in granting summary judgment because the evidence

conclusively established that the residency requirements had been satisfied based on Rebecca’s

own judicial admissions and stipulations. Even if the judicial admissions and stipulations were

erroneous, Rebecca was at fault in misleading the court with regard to the residency

requirements being satisfied and could not establish the bill of review requirement that the

divorce decree was rendered unmixed with any fault or negligence of her own. See Caldwell v.

Barnes, 154 S.W.3d 93, 97 (Tex. 2004) (noting bill of review plaintiffs must establish judgment

was rendered unmixed with any fault or negligence of their own).

FINALITY OF DIVORCE DECREE

With regard to the finality of the divorce decree, the record reflects that the divorce

decree was a final judgment. The decree states that it is a “final judgment, for which let

execution and all writs and processes necessary to enforce this judgment issue.” The decree

further states that it “finally disposes of all claims and all parties and the parties agreed.”

Although the decree also states, “this final judgment is not appealable,” the language of the

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decree as a whole establishes that the insertion of the word “not” was a typographical error and

does not affect the finality of the decree. See Tutson v. Upchurch, 203 S.W.3d 428, 430 n.2

(Tex. App.—Amarillo 2006, pet. denied) (viewing word in judgment as typographical error

based on context and overall wording of the judgment); see also SLT Dealer Group, Ltd. v.

AmeriCredit Financial Servs., Inc., 336 S.W.3d 822, 832 (Tex. App.—Houston [1st Dist.] 2011,

no pet.) (noting clerical error is mistake that prevents judgment, as entered, from accurately

reflecting judgment as actually rendered and determining whether error is judicial or clerical is a

question of law).

The trial court’s order is affirmed.

Catherine Stone, Chief Justice

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