Don A. Payne v. Wilma Payne

i i i i i i
MEMORANDUM OPINION
No. 04-08-00576-CV
Donald A. PAYNE,
Appellant
v.
Wilma PAYNE,
Appellee
From the 285th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-07788
Honorable Peter Sakai, Judge Presiding
Opinion by: Catherine Stone, Chief Justice
Sitting: Catherine Stone, Chief Justice
Karen Angelini, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: February 11, 2009
AFFIRMED
Donald Payne appeals the trial court’s judgment denying his petition for a bill of review. We
affirm.
BACKGROUND
Donald and Wilma Payne were married in 1989. In 2005, Wilma filed a petition for divorce.
The trial court informed the parties on May 3, 2006 that it intended to grant them a divorce, but did
not sign the parties’ final divorce decree at that time. After the trial court informed the parties of its
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intentions, Donald’s attorney moved to withdraw as Donald’s counsel. On October 4, 2006, the trial
court issued an order granting counsel’s motion to withdraw as Donald’s counsel. In addition to
granting counsel’s motion to withdraw, the trial court’s order notified the parties that a hearing on
Wilma’s motion to sign the final divorce decree was set for October 16, 2006. Both Donald and his
attorney signed the trial court’s October 4 order.
Despite the language in the trial court’s order notifying Donald of the October 16 hearing on
Wilma’s motion to sign the final divorce decree, Donald did not appear at the hearing. When Donald
failed to appear, the trial court proceeded to sign the final divorce decree in Donald’s absence.
Donald learned of the trial court’s signing of the final divorce decree later that day when he appeared
at the courthouse “to inquire about additional rights that [he] may be entitled to concerning [the
couple’s marital] property.”1
After learning of the signing of the final divorce decree, Donald immediately filed several
motions with the trial court. These motions, the first of which was filed on October 23, 2006,
generally complained about the trial court’s signing of the final divorce decree in his absence.
Although Donald filed an array of motions upon discovering that the trial court had signed the final
divorce decree, Donald did not file a notice of appeal at any time.
Donald and Wilma continued to litigate various enforcement and modification matters in the
trial court over the course of the next year. Donald, who was dissatisfied with the trial court’s
division of the marital estate, decided to file a petition for a bill of review on May 5, 2008. Donald
claimed he was entitled to a bill of review because he never received notice of the October 16, 2006
hearing on Wilma’s motion to sign the final divorce decree.
1
… Donald filed an affidavit with the trial court seven days after the trial court signed the final divorce decree
acknowledging that he learned of the final divorce decree the same day it was signed by the court.
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The trial court denied Donald a bill of review following a hearing on Donald’s petition.
According to the trial court, Donald has “no basis . . . to challenge the decree.” Donald now appeals
from the trial court’s denial of his bill of review.
STANDARD OF REVIEW
When reviewing the grant or denial of a bill of review, we indulge every presumption in favor
of the trial court’s ruling. Narvaez v. Maldonado, 127 S.W.3d 313, 319 (Tex. App.—Austin 2004,
no pet.). We will not disturb the trial court’s ruling unless the court abused its discretion. Id. A trial
court abuses its discretion if it acts in an unreasonable or arbitrary manner, or without reference to
any guiding rules and principles. Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
“The burden on a bill of review complainant is heavy because it is fundamentally important that
judgments be accorded some finality; therefore, bills of review seeking relief from otherwise final
judgments are scrutinized ‘with extreme jealousy, and the grounds on which interference will be
allowed are narrow and restricted.’” Narvaez, 127 S.W.3d at 319.
DISCUSSION
Donald claims the trial court erred in denying his petition for a bill of review because he
satisfies the requisite elements for a bill of review. A bill of review is an equitable proceeding by
a party to a former action who seeks 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 complainant must plead and prove: (1) a meritorious defense to the
cause of action alleged; (2) that he was prevented from making by the fraud, accident, or wrongful
act of the opposing party or by official mistake; and (3) the absence of fault or negligence of the
complainant. Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998); Narvaez, 127 S.W.3d at 319.
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Even if we were to assume that Donald can satisfy the aforementioned requirements for a bill
of review, we must nonetheless uphold the trial court’s decision to deny Donald a bill of review. It
is well settled that bill of review relief is available only if a party has exercised due diligence in
pursuing all adequate legal remedies. Herrera, 11 S.W.3d at 927. If legal remedies were available
but ignored, relief by bill of review is inappropriate. Id. Here, the record plainly reflects that Donald
had notice of the signing of the final divorce decree the same day it was signed by the trial court.
Despite having notice of the final divorce decree in time to file a direct appeal, Donald did not
pursue the legal remedy of appeal. Instead, Donald opted to wait over a year after the signing of the
final divorce decree to attack the decree through a bill of review. Under these circumstances, we
conclude Donald is not entitled to a bill of review because he failed to exercise due diligence in
pursuing all adequate legal remedies available following his discovery of the trial court’s signing of
the final divorce decree. See id.; Lovejoy v. Lovejoy, No. 04-04-00358-CV, 2005 WL 1552623, *1
(Tex. App.—San Antonio 2005, no pet.) (mem. op.). Donald’s appellate complaints concerning the
trial court’s denial of his petition for a bill of review are therefore overruled.
Donald also attacks the propriety of the divorce decree on appeal. Our jurisdiction in this
appeal, however, is limited to the judgment denying Donald’s petition for a bill of review. Lovejoy,
2005 WL 1552623 at *1. Because we have no jurisdiction to review the divorce decree, we decline
to consider Donald’s complaints concerning the propriety of the divorce decree. See id.
CONCLUSION
Based on the foregoing, the judgment of the trial court is affirmed.
Catherine Stone, Chief Justice
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