Opinion issued August 1, 2024
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-23-00089-CV ——————————— THOMAS MOCCIA, Appellant V. CYNTHIA BENN F/K/A CYNTHIA BENN MOCCIA, Appellee
On Appeal from the 328th District Court Fort Bend County, Texas Trial Court Case No. 22-DCV-298462
MEMORANDUM OPINION
Appellant Thomas Moccia (“Moccia”), appearing pro se, appeals from the
trial court’s order dismissing his petition for bill of review challenging the entry of
a prior agreed final decree of divorce and awarding attorney’s fees to appellee
Cynthia Benn f/k/a Cynthia Benn Moccia (“Benn”). In six issues on appeal, Moccia argues that the trial court erred by entering this order because: (1) factual disputes
existed; (2) the court did not consider evidence of extrinsic and constructive fraud;
(3) the court did not consider evidence of Benn’s breach of the parties’ mediated
settlement agreement and the agreed final divorce decree; (4) the court erred by
awarding attorney’s fees to Benn; (5) the court did not consider evidence of his
reliance on counsel in agreeing to the parties’ mediated settlement agreement and
the agreed final divorce decree; and (6) the court did not permit him or his witnesses
to testify. We affirm.
Background
Moccia and Benn were married in 2011. In 2015, they lived together in a
house on McDonough Way in Katy, Texas (“the subject property”). In February
2015, Moccia signed a quitclaim deed conveying his rights and interest in the subject
property to Benn. The parties later decided to divorce.1 In June 2022, the parties
entered into a mediated settlement agreement concerning the division of their marital
property. Relevant here, the settlement agreement included a spreadsheet of the
parties’ assets which listed the subject property as Benn’s separate property. The
parties also agreed that Benn would return Moccia’s pilot license and logbook and
his father’s gun. The parties stipulated that the agreement was “not subject to
1 The record does not indicate when the divorce petition was filed, but the record and the parties’ arguments indicate that the divorce proceeding was instituted sometime after Moccia signed the quitclaim deed. 2 revocation and is binding on all parties.” Moccia and Benn signed each page of the
settlement agreement, including the spreadsheet listing the subject property as
Benn’s separate property and the stipulations.
Pursuant to the settlement agreement, the trial court signed an agreed final
decree of divorce on July 8, 2022. The decree confirmed the subject property as
Benn’s separate property. Both parties signed the decree agreeing to its form and
substance. Moccia did not file a motion for new trial or a direct appeal of the divorce
decree.
In November 2022, Moccia filed a petition for bill of review, which he later
amended. In the first amended petition for bill of review, Moccia alleged that he was
prevented from asserting a meritorious claim or defense during the divorce
proceeding which would have entitled him to a greater portion of the marital estate
than he was awarded in the divorce decree. Moccia alleged that Benn fraudulently
induced him to sign a one-page document “for mortgage purposes” that was actually
a quitclaim deed to the subject property. Moccia alleged that he paid the down
payment on the subject property from his separate property and used his income to
pay the mortgage payments during the parties’ marriage. Moccia further argued that
he relied on the advice of his counsel in signing the mediated settlement agreement
reflecting that the subject property was Benn’s separate property, and thus he was
prevented from claiming his interest in the subject property until after the deadlines
3 to file a motion for new trial or an appeal had expired. The petition attached the
mediated settlement agreement, which included the marital asset spreadsheet, and
the agreed final divorce decree.
Benn filed an answer and a brief requesting that the trial court dismiss the
petition for bill of review. Benn attached a copy of the quitclaim deed showing that
by his signature, Moccia had conveyed his rights and interest in the subject property
to Benn. The quitclaim deed included a printed date of “August ___, 2014,” which
was crossed out, and someone handwrote “Feb. 3rd, 2015.” Moccia and Benn each
signed the deed, and a notary public certified the deed on February 3, 2015.
The trial court set an evidentiary hearing on Moccia’s petition for bill of
review. Moccia did not introduce any evidence at the hearing. Rather, Moccia’s
counsel argued the same allegations included in the pleadings, i.e., that Benn had
fraudulently induced Moccia to sign the quitclaim deed by presenting him with a
one-page document and asking him to sign it without telling him that the document
conveyed his rights and interest in the subject property to her. Moccia argued that
the settlement agreement was obtained by fraud due to “his mental state at the time
of the mediation” such that Moccia needed “to absorb that information and [have]
time to process it.” Moccia also argued that Benn was “unjustly enriched” by the
agreement. Benn responded that her disclosures during the divorce proceeding
included a claim that the subject property was her separate property. She also
4 disputed that Moccia had signed a one-page document because the quitclaim deed
reflected that he signed both pages of the two-page document.
At the end of the hearing, Benn’s attorney testified about her fees in the case.
The trial court admitted into evidence the contract for legal services between Benn
and her attorney and invoices for legal fees. The trial court then stated that it would
dismiss the petition for bill of review and take Benn’s request for attorney’s fees
under advisement.
On February 2, 2023, the trial court signed an order dismissing the petition for
bill of review. The order required Moccia to withdraw and remove a lis pendens he
had filed on the subject property. The order also awarded Benn $3,337 in attorney’s
fees. This appeal followed.
Bill of Review
In five issues on appeal, Moccia argues that the trial court erred by dismissing
the bill of review because fact questions existed, the trial court did not consider
evidence of his alleged meritorious defenses, and Benn breached the mediated
settlement agreement and the agreed final divorce decree. Moccia also argues that
the trial court erred by awarding attorney’s fees to Benn.
A. Standard of Review
Generally, appellate courts review a trial court’s ruling on a bill of review for
an abuse of discretion. Joseph v. Jack, 624 S.W.3d 1, 6 (Tex. App.—Houston [1st
5 Dist.] 2021, no pet.). However, as discussed below, the trial court may dismiss a bill
of review in a pretrial proceeding if the petitioner fails to present prima facie
evidence of a meritorious defense. See Baker v. Goldsmith, 582 S.W.2d 404, 408
(Tex. 1979). Whether the petitioner presented prima facie proof of a meritorious
defense is a legal question that we review de novo. Id. at 408–09; Pope v. Perrault,
No. 01-21-00648-CV, 2023 WL 4003516, at *4 (Tex. App.—Houston [1st Dist.]
June 15, 2023, no pet.) (mem. op.); Morris v. O’Neal, 464 S.W.3d 801, 806 (Tex.
App.—Houston [14th Dist.] 2015, no pet.).
Appellate courts liberally construe a pro se litigant’s brief to reach his
appellate issues on the merits when possible. See Harrison v. Reiner, 607 S.W.3d
450, 457 (Tex. App.—Houston [14th Dist.] 2020, pet. denied). Nevertheless, pro se
litigants are held to the same standards as licensed attorneys and must comply with
applicable rules of procedure. Id.
B. Law Governing Bills of Review
A bill of review is an equitable proceeding to set aside a prior judgment that
is no longer subject to challenge by motion for new trial or appeal. TEX. R. CIV. P.
329b(f); King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); Baker,
582 S.W.2d at 406. To obtain a bill of review, a petitioner must plead and prove:
(1) a meritorious defense to the cause of action alleged to support the judgment;
(2) the petitioner was prevented from asserting the meritorious defense by the
6 opposing party’s fraud, accident, or wrongful act or by official mistake; and (3) the
petitioner was not at fault or negligent.2 King Ranch, 118 S.W.3d at 751–52.
Courts scrutinize bills of review seeking relief from otherwise final judgments
“with extreme jealousy.” Boaz v. Boaz, 221 S.W.3d 126, 131 (Tex. App.—Houston
[1st Dist.] 2006, no pet.). Because of “the fundamental policy that judgments must
become final at some point,” the grounds that will support a bill of review are narrow
and restricted. King Ranch, 118 S.W.3d at 751; Boaz, 221 S.W.3d at 131. “Although
a bill of review is an equitable proceeding, the fact that an injustice may have
occurred is not sufficient to justify relief by bill of review.” Boaz, 221 S.W.3d at
131.
Courts ordinarily use a two-step inquiry when deciding a bill of review. Baker,
582 S.W.2d at 408–09; see also Beck v. Beck, 771 S.W.2d 141, 141–42 (Tex. 1989).
As a pretrial matter, the court should first determine whether the petitioner has
presented prima facie proof of the first bill-of-review element: a meritorious defense
to the prior judgment. Beck, 771 S.W.2d at 142; Baker, 582 S.W.2d at 408; see also
Ramsey v. State, 249 S.W.3d 568, 576 (Tex. App.—Waco 2008, no pet.) (“The
2 When a bill of review is premised on lack of service or notice of a trial setting in the prior proceeding, the petitioner is relieved of proving the first two elements. Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812–13 (Tex. 2012) (per curiam); Caldwell v. Barnes, 154 S.W.3d 93, 96–97 (Tex. 2004) (per curiam). Lack of service or notice of the trial setting in the underlying divorce proceeding is not at issue in this appeal. 7 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” of the bill of review. 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.
The petitioner presents prima facie proof of a meritorious defense by
establishing that (1) the defense is not barred as a matter of law and (2) the petitioner
would be entitled to judgment on retrial if no contrary evidence is offered. Baker,
582 S.W.2d at 408–09; Maree v. Zuniga, 502 S.W.3d 359, 365 (Tex. App.—Houston
[14th Dist.] 2016, no pet.). 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. Baker, 582 S.W.2d at 409. The bill-of-review
respondent may present proof that the petitioner’s defense is barred as a matter of
law, but any fact questions are resolved in favor of the petitioner for purposes of this
pretrial determination. Id. “In cases involving bills of review to set aside divorce
decrees regarding division of property, courts have held that a meritorious claim is
presented by proof that the petitioner would obtain a more favorable property
division on retrial.” Maxwell v. Maxwell, No. 14-20-00298-CV, 2021 WL 4956881,
at *9 (Tex. App.—Houston [14th Dist.] Oct. 26, 2021, pet. denied) (mem. op.)
8 (quoting Elliott v. Elliott, 21 S.W.3d 913, 919 (Tex. App.—Fort Worth 2000, pet.
denied)); Martin v. Martin, 840 S.W.2d 586, 592 (Tex. App.—Tyler 1992, writ
denied).
If the petitioner does not present prima facie evidence of a meritorious
defense, the court shall dismiss the case after this first step. Beck, 771 S.W.2d at 142;
Baker, 582 S.W.2d at 409. But if the petitioner does present prima facie proof of a
meritorious defense, then the court proceeds to the second step: discovery and a trial
on the merits of the bill of review.3 Beck, 771 S.W.2d at 142; 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 his
entitlement to a bill of review, the parties revert to their original status as plaintiff
and defendant, and the plaintiff bears the burden to prove her case. Baker, 582
S.W.2d at 407–08, 409.
C. Analysis
In his first, second, third, fifth, and sixth issues, Moccia contends that he was
entitled to a more favorable division of the parties’ marital assets than he was
3 In this context, “trial” contemplates the possibility of a summary judgment on a party’s motion. 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, 492 (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.”). 9 awarded in the agreed final divorce decree. Moccia argues that the decree awarded
the subject property to Benn as her separate property without compensating him for
his rightful interest in the property. According to Moccia, during the parties’
marriage, Benn fraudulently induced him to convey his interest in the subject
property to her. Consequently, the subject property became Benn’s separate
property, and the trial court confirmed the property as her separate property during
the divorce proceeding. Moccia further argues that he did not learn about the fraud
until after the deadline to file a motion for new trial or appeal of the divorce
proceeding because he had relied on his counsel in signing the mediated settlement
agreement and agreeing to the final divorce decree.
Moccia made these same allegations in his first amended petition for bill of
review. That is, the petition alleged that during the parties’ marriage, Moccia signed
a one-page document that Benn presented to him “for mortgage purposes,” but this
document was actually a quitclaim deed conveying his interest in the subject
property to Benn. The petition further alleged that Moccia relied on the advice of his
counsel at mediation, and counsel “induced” him to sign the mediated settlement
agreement listing the subject property as Benn’s separate property. This agreement
formed the basis of the agreed final divorce decree.
Moccia attached several documents to his petition. He attached the mediated
settlement agreement, which included a spreadsheet listing the parties’ assets. This
10 spreadsheet listed the subject property as “100%” Benn’s separate property. Moccia
signed each page of the agreement, including the spreadsheet page referencing the
subject property as Benn’s separate property. Moccia also attached the agreed final
divorce decree, which confirmed the subject property as Benn’s separate property.
Moccia signed the decree approving and consenting to its form and substance.
Moccia did not attach any other documents, but Benn’s pleadings attached the
challenged quitclaim deed. The deed reflected that on February 3, 2015, Moccia
quitclaimed to Benn all his right, title, and interest in the subject property. Moccia
signed the quitclaim deed before a notary.
The trial court held a hearing on the bill of review. At this hearing, Moccia
did not introduce any evidence or request that the trial court take judicial notice of
the documents attached to his pleadings. The trial court, however, stated that it had
read the petition for bill of review and understood Moccia’s fraud allegations. At the
end of the hearing, the trial court stated that it would dismiss the petition for bill of
review. The court later signed an order dismissing the bill of review.
The appellate record indicates that the trial court dismissed the bill of review
at the preliminary Baker stage of the proceeding. See id. at 407–09. To meet his
burden at this stage, Moccia was required only to present prima facie proof of a
11 meritorious defense.4 See id. at 408. That is, Moccia was required to present proof
that (1) the claim or defense was not barred as a matter of law, and (2) he would be
entitled to judgment on retrial if no evidence to the contrary was offered. See id. at
408–09; Maree, 502 S.W.3d at 365. The “only relevant inquiry” at this stage was
whether Moccia “presented prima facie proof of a meritorious defense.” See Beck,
771 S.W.2d at 142.
Ordinarily at this preliminary stage, Moccia would not be required to present
evidence of fraud because that is a separate element from the meritorious defense
element. See id.; King Ranch, 118 S.W.3d at 751–52 (listing elements of bill of
review). However, Moccia’s petition alleged a meritorious claim or defense which
involved fraud. Namely, Moccia alleged that Benn fraudulently induced him to sign
a quitclaim deed conveying his interest in the subject property to her, which she then
used to claim the property as her separate property during the divorce proceeding.
Thus, because fraud is part of Moccia’s allegation concerning a meritorious claim or
defense, he was required to present prima facie proof of fraud to advance beyond the
preliminary Baker stage. See Beck, 771 S.W.2d at 142 (stating that petitioner must
“present prima facie proof of a meritorious defense as a pretrial matter”).
4 To the extent the hearing was a trial on the merits of the bill of review, our decision remains the same because Moccia did not introduce any evidence at the hearing to meet his burden to prove the elements of a bill of review. See Baker v. Goldsmith, 582 S.W.2d 404, 409 (Tex. 1979) (stating that at trial on bill of review, petitioner “must open and assume the burden of proving” elements of bill of review). 12 Moccia did not, however, introduce any evidence at the pretrial hearing. His
counsel twice argued what the evidence would show “[i]f we had a hearing,” but
counsel did not attempt to introduce any evidence. See Baker, 582 S.W.2d at 408
(stating that petitioner has burden to present prima facie proof of meritorious defense
at preliminary stage of proceeding); see also Beck, 771 S.W.2d at 142 (same).
On appeal, both parties’ arguments rely on documents attached to their
pleadings, namely the quitclaim deed, the mediated settlement agreement, and the
agreed final divorce decree.5 On their face, these documents do not reveal any
fraudulent conduct. To the contrary, the quitclaim deed reflects that Moccia
conveyed his interest in the subject property to Benn, as shown by both parties’
signatures and a notary certification on the deed. Moreover, Moccia signed the
mediated settlement agreement and agreed final decree of divorce, both of which
reflect his agreement that the subject property was solely Benn’s separate property.
There is no indication of fraud in these documents. The trial court had no other
evidence before it prior to dismissing the bill of review. Thus, contrary to Moccia’s
assertion that Benn defrauded him of his interest in the subject property, the
5 Generally, documents attached to pleadings are not evidence unless they are offered and admitted as evidence by the trial court. Pitts v. Bank of N.Y. Mellon Tr. Co., Nat’l Ass’n, 622 S.W.3d 596, 599 (Tex. App.—Dallas 2021, no pet.). On appeal, however, Benn does not challenge Moccia’s reliance on documents attached to the pleadings, and the trial court stated that it had reviewed the pleadings. We therefore assume without deciding that the trial court considered these documents in ruling on the bill of review. Accordingly, we will also consider these documents. 13 uncontroverted evidence reflects that the subject property was lawfully Benn’s
separate property.
No record evidence supports Moccia’s argument that Benn asked him to sign
a one-page document “for mortgage purposes,” but the document was actually a
quitclaim deed. Nor does any evidence support Moccia’s argument that he did not
learn that he had conveyed the subject property to Benn or that he was agreeing that
the subject property was Benn’s separate property until the divorce proceeding was
final. See, e.g., Baker, 582 S.W.2d at 409 (stating that affidavits constitute prima
facie proof in bill of review proceeding).
We note that eight months after the trial court dismissed the bill of review,
Moccia filed multiple documents in the trial court and requested inclusion of these
documents in the appellate record. See TEX. R. APP. P. 34.5(c)(1) (authorizing party
to request that trial court clerk supplement clerk’s record with relevant omitted item).
These documents recited various facts concerning Moccia’s fraud allegations at
issue here, and Moccia signed the documents. Moccia also attached various bank
statements and other documents purporting to support his factual statements. We
cannot, however, consider these documents on appeal.
“We do not consider evidence that was not before the trial court at the time it
made its ruling in the case.” Fryday v. Michaelski, 541 S.W.3d 345, 352 (Tex.
App.—Houston [14th Dist.] 2017, pet. denied); Methodist Hosps. of Dallas v. Tall,
14 972 S.W.2d 894, 898 (Tex. App.—Corpus Christi–Edinburg 1998, no pet.) (“It is
axiomatic that an appellate court reviews actions of a trial court based on the
materials before the trial court at the time it acted.”). Moccia submitted these
documents to the trial court after the court dismissed the bill of review. Because
these documents were not before the trial court when it made its ruling, we may not
consider the documents in deciding whether the trial court erred by dismissing the
bill of review. See Fryday, 541 S.W.3d at 352; Tall, 972 S.W.2d at 898. We therefore
conclude that no record evidence supports Moccia’s allegation that he was deprived
of his interest in the subject property due to fraud. See Baker, 582 S.W.2d at 409 (“If
the court determines that a prima facie meritorious defense has not been made out,
the proceeding terminates and the trial court shall dismiss the case.”).
On appeal, Moccia argues that the trial court erred by dismissing the bill of
review because factual disputes existed. However, at the preliminary stage of the bill
of review proceeding, Moccia was required only to present prima facie proof of a
meritorious defense. See Beck, 771 S.W.2d at 142 (stating that “only relevant
inquiry” at pretrial Baker stage “is whether the petitioner has presented prima facie
proof of a meritorious defense”). At this preliminary stage, “factual questions arising
out of factual disputes are resolved in favor of the complainant for the purposes of
this pretrial, legal determination.” Baker, 582 S.W.2d at 409. Thus, to the extent
15 factual disputes existed, the trial court and this Court resolved such disputes in
Moccia’s favor.
Moccia also argues that the trial court erred by (1) not considering extrinsic
and constructive evidence of fraud concerning his execution of the quitclaim deed;
and (2) not permitting him or his witnesses to testify at trial. Before a party may
present a complaint for appellate review, however, the record must show that the
complaint was made to the trial court by a timely request, objection, or motion
stating the grounds for the ruling sought with sufficient specificity to make the trial
court aware of the complaint. TEX. R. APP. P. 33.1(a)(1)(A). The record must also
show that the trial court ruled on the complaint or refused to rule on it. TEX. R. APP.
P. 33.1(a)(2). Moccia did not introduce any documentary evidence or witness
testimony at the hearing. His counsel did argue about what the evidence would show
“[i]f we had a hearing.” To the extent this argument constituted a complaint that the
trial court was not receiving evidence at the hearing, Moccia did not obtain a ruling
on the complaint. Therefore, because the record does not show that he sought to
introduce any evidence of fraud or that he received a ruling on any such request,
Moccia has not preserved these issues for appellate review. See TEX. R. APP. P.
33.1(a).
Moccia also argues that the trial court erred by refusing to consider his defense
that he relied on his counsel in signing the mediated settlement agreement and agreed
16 final divorce decree. According to Moccia, he was not aware that he had signed a
quitclaim deed or conveyed his interest in the subject property to Benn until after
mediation, entry of the agreed final divorce decree, and the expiration of time to file
a motion for new trial or appeal in the divorce proceeding. As Benn points out,
however, “allegations of fraud or negligence on the part of a party’s attorney are
insufficient to support a bill of review.” See King Ranch, 118 S.W.3d at 752. Even
if the petitioner alleges that his attorney’s wrongful act caused an adverse judgment,
the petitioner is not excused from pleading and proving his opponent’s extrinsic
fraud. Id. As discussed above, Moccia did not offer any evidence at the hearing that
Benn engaged in fraud. See id. We therefore conclude that Moccia’s reliance on his
counsel’s advice in signing the mediated settlement agreement and agreed final
divorce decree does not support a bill of review.
Finally, Moccia argues that the trial court erred by not considering that Benn
had breached the mediated settlement agreement and the agreed final divorce decree.
Moccia argues that these documents required Benn to return Moccia’s pilot license
and logbook and his father’s gun, but she had not done so. This argument, however,
does not concern a meritorious claim or defense to the divorce proceeding, which is
the “only relevant inquiry” at the pretrial stage of a bill of review. See Beck, 771
S.W.2d at 142. Therefore, any alleged breach by Benn of the mediated settlement
agreement and agreed final divorce decree does not support a bill of review.
17 We conclude that Moccia did not present prima facie proof of a meritorious
defense to the prior divorce decree. See id.; Baker, 582 S.W.2d at 408; Maxwell,
2021 WL 4956881, at *9. Accordingly, we hold that the trial court did not err by
dismissing the bill of review.
We overrule Moccia’s first, second, third, fifth, and sixth issues.
D. Attorney’s Fees
In his fourth issue, Moccia contends that the trial court erred by awarding
attorney’s fees to Benn in the bill-of-review proceeding. Moccia does not provide
any analysis or legal authority relating to this issue. A party’s failure to cite to
appropriate legal authority or to provide substantive analysis of the legal issues
presented results in a waiver of the complaint on appeal. See TEX. R. APP. P. 38.1(i);
Guimaraes v. Brann, 562 S.W.3d 521, 538 (Tex. App.—Houston [1st Dist.] 2018,
pet. denied). We conclude that Moccia has waived appellate review of this issue.
But even if he had not waived this issue for review, we find no error in the
trial court’s award of attorney’s fees. The trial court has broad discretion in awarding
attorney’s fees to either party and in determining the amount of attorney’s fees to be
awarded in any case in which attorney’s fees are recoverable. In re Marriage of
Mobley, 503 S.W.3d 636, 645 (Tex. App.—Texarkana 2016, pet. denied). We will
not overturn an award of attorney’s fees absent a clear abuse of discretion. Id.
18 A party who successfully defends a bill of review is entitled to recover
attorney’s fees in the bill-of-review proceeding if recovery of attorney’s fees is
authorized in the prosecution of the underlying case. Meece v. Moerbe, 631 S.W.2d
729, 730 (Tex. 1982); In re Marriage of Mobley, 503 S.W.3d at 645. More
specifically, an award of attorney’s fees is available if it would have been available
in an appeal of the underlying case. In re Marriage of Mobley, 503 S.W.3d at 645;
State ex rel. Mattox v. Buentello, 800 S.W.2d 320, 327 (Tex. App.—Corpus Christi–
Edinburg 1990, no writ).
Family Code section 6.708 authorizes a trial court to award reasonable
attorney’s fees and costs to a party in a suit for dissolution of a marriage. TEX. FAM.
CODE § 6.708(c); In re Marriage of Comstock, 639 S.W.3d 118, 142 (Tex. App.—
Houston [1st Dist.] 2021, no pet.). Trial courts have broad discretion to award
reasonable attorney’s fees in an appeal of a divorce action. In re Marriage of Mobley,
503 S.W.3d at 645 (citing Dickson v. McWilliams, 543 S.W.2d 868, 871 (Tex.
App.—Houston [1st Dist.] 1976, no writ)). Texas courts have held that a party who
successfully defends against a bill of review of a divorce proceeding may recover
attorney’s fees because they would have been available during an appeal of the
underlying divorce decree. E.g., id.
Here, because attorney’s fees were recoverable in the underlying divorce
proceeding, the trial court had discretion to award attorney’s fees in the bill of review
19 proceeding. See Meece, 631 S.W.2d at 730; In re Marriage of Mobley, 503 S.W.3d
at 645; TEX. FAM. CODE § 6.708(c); see also Bakali v. Bakali, 830 S.W.2d 251, 257
(Tex. App.—Dallas 1992, no writ) (“Because husband could have recovered
attorney’s fees if wife had appealed the divorce decree, the trial court did not err in
awarding attorney’s fees in this bill of review proceeding.”). At the hearing, Benn’s
attorney testified about her legal representation of Benn in the bill of review
proceeding, including her hourly rate. The trial court admitted into evidence the
contract for legal services between Benn and her attorney, which confirmed
counsel’s hourly rate. The court also admitted into evidence invoices segregating
and describing the fees charged for representation of Benn. This evidence supported
the trial court’s award of $3,337 in attorney’s fees to Benn. Accordingly, we hold
that the trial court did not abuse its discretion by awarding attorney’s fees to Benn.
We overrule Moccia’s fourth issue.
Conclusion
We affirm the judgment of the trial court.
April L. Farris Justice
Panel consists of Chief Justice Adams and Justices Guerra and Farris.