Laurie Faye Walker v. Brad Vincent Walker ( 2014 )

AFFIRM; and Opinion Filed August 21, 2014.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-13-00481-CV
LAURIE FAYE WALKER, Appellant
V.
BRAD VINCENT WALKER, Appellee
On Appeal from the 422nd Judicial District Court
Kaufman County, Texas
Trial Court Cause No. 87,415-422
MEMORANDUM OPINION
Before Justices Bridges, O’Neill, and Brown
Opinion by Justice O’Neill
Laurie Faye Walker appeals the trial court’s order denying her petition for bill of review
to set aside her 2008 divorce decree. Representing herself, appellant brings two issues
contending that (1) there were numerous “procedural defects” in the bill of review proceeding
and underlying divorce case requiring reversal and (2) the underlying divorce decree was void
because the trial court lacked jurisdiction. We affirm.
Appellant and Brad Vincent Walker divorced on December 29, 2008. Appellant was
living in Missouri, and appellee was living in Texas. There were no children. Before the divorce
was finalized, appellee sent a copy of the divorce decree and a special warranty deed to appellant
in Missouri. Appellant signed both documents, had them notarized, and returned them to
appellee. Above appellant’s signature on the divorce decree, it states, “APPROVED AND
CONSENTED TO AS TO BOTH FORM AND SUBSTANCE.” Nine days later, the trial court
approved the parties’ written agreement “as contained in this decree,” made a division of
property, and granted the divorce.
Four years later, on December 28, 2012, appellant filed a 34-page petition for bill of
review with more than 100 pages of attachments, seeking to vacate the property division in the
decree. She alleged she did not receive notice of the dispositive hearing.
At the hearing on her petition, appellant raised three general complaints. First, she
complained that appellee refinanced their former marital home but her name remained on the
deed, giving her concern that she was liable on the debt. Second, she complained the trial court
did not rule on her motion for protective order in the original divorce case, although she
acknowledged she had not seen appellee in five years. Third, she asked for a redivision of
property because she is disabled.
Appellant testified she did not receive notice of the hearing that resulted in the final
decree of divorce. She acknowledged, however, that she read the decree, knew what was in it,
signed it, and returned it before the divorce was finalized. Although she said she did so under
“duress” from appellee, she acknowledged he was not present and was in another state when she
signed. Further, she testified she received a copy of the fully executed decree, signed by both her
and appellee, within one week of the judge signing it. She testified she did not file a motion for
new trial or take any other post-judgment action to set aside the decree. After hearing the
evidence, the trial court denied appellant’s petition for bill or review. This appeal ensued.
A bill of review is an equitable proceeding designed to prevent manifest injustice.
French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967). It is brought by a party seeking to set aside
a prior judgment that is no longer subject to challenge by a motion for new trial or appeal.
Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012). A bill of review
plaintiff must plead and prove (1) a meritorious defense to the underlying cause of action, (2)
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which the plaintiff was unable to present by the fraud, accident or wrongful act of the opposite
party or official mistake, (3) unmixed with any negligence of her own. Id. A bill of review
plaintiff claiming lack of notice of a trial setting is relieved of proving the first two elements, but
still must prove the third element required in a bill of review proceeding: lack of fault or
negligence. See id. at 813; Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004); Samson v.
Colonial County Mut., No. 01-11-00203-CV, 2012 WL 1068451, at *1 (Tex. App.—Houston
[1st Dist.] Mar. 29, 2012, pet. denied) (mem. op.). This element requires a party to show that it
diligently pursued all adequate legal remedies or show good cause for failing to exhaust those
remedies. Mabon, 369 S.W.3d at 813; Caldwell, 154 S.W.3d at 604; Samson, 2012 WL
1068451, at *1. If the complainant had legal remedies that were ignored, relief by bill of review
is unavailable. Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999).
Here, the evidence showed that although appellant did not receive notice of the prove-up
hearing, she did receive a copy of the fully executed final decree of divorce, signed by her and
appellee, within a week of the trial judge signing it. Nevertheless, appellant did not file any post-
judgment motions in the trial court or appeal the decree. To the extent appellant asserts she had
good cause for failing to file an appeal—fear of her ex-husband—the trial court could have
disbelieved her, particularly in light of evidence she and appellant lived in different states at the
time of the divorce.
Appellant next asserts the trial court lacked jurisdiction. Here, she complains the trial
court improperly ordered the parties to file a joint tax return in violation of federal law.
A claim that a judgment is void because the trial court lacks jurisdictional power to
render it constitutes a collateral attack on the underlying judgment. Narvaez v. Maldonado, 127
S.W.3d 313, 317 (Tex. App.—Austin 2004, no pet.). In a collateral attack challenging a
judgment on the ground that it is void because the trial court lacked jurisdictional power to
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render it, the complainant is not required to prove the elements of a bill of review. Id. (citing
Middleton v. Murff, 689 S.W.2d 212, 213 (Tex. 1985) (op. on reh’g) (per curiam)); Ferrice v.
Legacy Ins. Agency, Inc., No. 2-05-363-CV, 2006 WL 1714535, at *2 (Tex. App.—Fort Worth
June 22, 2006, pet. denied) (mem. op.). “Jurisdictional power” in the context of a collateral
attack is defined as “jurisdiction over the subject matter, the power to hear and determine cases
of the general class to which the particular one belongs.” Middleton, 689 S.W.2d at 213.
The district court had jurisdiction over the divorce suit. See TEX. CONST. art. V, § 8; TEX.
GOV’T CODE ANN. § 24.007(a) (West Supp. 2013); see also In re Graham, 971 S.W.2d 56, 58
(Tex. 1998) (orig. proceeding). Even if we assume the trial court was not authorized to include
the complained-of provision in the decree, such action would not void the judgment or deprive
the court of jurisdiction over the suit. We conclude the trial court did not err in denying
appellant’s petition for bill of review. We overrule both issues.
We affirm the trial court’s order.
/Michael J. O'Neill/
MICHAEL J. O'NEILL
JUSTICE
130481F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
LAURIE FAYE WALKER, Appellant On Appeal from the 422nd Judicial District
Court, Kaufman County, Texas
No. 05-13-00481-CV V. Trial Court Cause No. 87,415-422.
Opinion delivered by Justice O'Neill;
BRAD VINCENT WALKER, Appellee Justices Bridges and Brown participating.
In accordance with this Court’s opinion of this date, the trial court’s order denying bill of
review is AFFIRMED.
It is ORDERED that appellee Brad Vincent Walker recover his costs of this appeal from
appellant Laurie Faye Walker.
Judgment entered this 21st day of August, 2014.
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