                                Fourth Court of Appeals
                                         San Antonio, Texas
                                                 OPINION
                                            No. 04-12-00389-CV

                     Lana Marie BEVERING, as Next Friend of C.A.B., a Minor,
                                         Appellant

                                                        v.

                                Joseph Guy BEVERING, Deceased,
                  by and through his Independent Executrix, Debra Elaine Bevering,
                                             Appellee

                     From the 285th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2011-CI-17017
                          Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by:       Catherine Stone, Chief Justice

Sitting:          Catherine Stone, Chief Justice
                  Sandee Bryan Marion, Justice
                  Rebeca C. Martinez, Justice

Delivered and Filed: March 13, 2013

AFFIRMED

           On August 22, 1997, forty-six days after giving birth to her child, C.A.B., Lana Bevering

obtained a divorce from Joseph Bevering. In addition to granting a divorce, the decree ordered

no child support payments, terminated Joseph’s parental rights, and specifically terminated

C.A.B.’s inheritance rights from Joseph. Nearly fourteen years later, Lana, as next friend of

C.A.B., 1 brought an equitable bill of review to set aside the decree as to the child support and


1
 Although we recognize that Lana is acting in her capacity as next friend of C.A.B., the opinion will refer to Lana
as the appellant for ease of reference.
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termination issues. The trial court dismissed Lana’s equitable bill of review, and she now

appeals. Because we conclude Lana failed to make out a prima facie meritorious defense, we

affirm the trial court’s order.

                                           BACKGROUND

        Lana and Joseph were married on May 7, 1994, and Joseph initially filed a petition for

divorce on February 29, 1996. While the divorce proceeding was pending, Lana and Joseph

reconciled and had a child, C.A.B., who was born on July 8, 1997.

        On August 22, 1997, Lana filed an original counter-petition for divorce and for

termination of parental rights, and Joseph signed an affidavit of relinquishment of parental rights.

In her counter-petition, Lana requested the court to waive the appointment of an ad litem and to

find that Lana represented C.A.B.’s best interest. The final decree of divorce, which also was

signed on August 22, 1997, states, “The parties have consented to the terms of this decree and

stipulated that the provisions for division of assets and liabilities are contractual.” In the decree,

the trial court found that termination of the parent-child relationship between Joseph and C.A.B.

was in C.A.B.’s best interest. The court further found by clear and convincing evidence that

Lana represented C.A.B.’s best interest. Finally, the decree terminated C.A.B.’s right to inherit

from and through Joseph. Both Lana and Joseph were represented by counsel in connection with

the divorce proceeding, and the decree recites that the making of a record of the testimony was

waived.

        On February 19, 2010, Joseph died, and his wife, Debra Elaine Bevering, was named as

independent executrix of his estate. On October 20, 2011, Lana filed an original petition for

equitable bill of review as C.A.B.’s next friend, requesting that the divorce decree be set aside as

to the termination of parental rights, termination of inheritance rights, and payment of child

support. An amended petition was filed on May 4, 2012, seeking the same relief.
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        On May 11, 2012, Lana filed a motion for summary judgment as C.A.B.’s next friend.

The motion asserted that a guardian ad litem was required to be appointed to represent C.A.B.’s

best interest in the 1997 divorce proceeding because Lana could not protect C.A.B.’s interest

given her “state of extreme emotional distress.” The motion argued, “The child’s interest in

maintaining the parent-child relationship with his father extends far beyond mere financial

support and includes the right to a relationship with his father, the avoidance of the social stigma

imposed on those burdened by their status of illegitimacy and the right to inherit. Those interests

directly conflict with the mother’s overwhelming anger and desire to rid herself of a husband

who had no desire to fulfill his duties as a father and set the final divorce hearing 46 days after

the birth of his child.”

        Lana’s affidavit was attached to the motion as summary judgment evidence. Lana stated

in her affidavit that she and Joseph reconciled after Joseph initially filed for divorce and C.A.B.

was conceived during their reconciliation. Lana admitted that she sought to terminate Joseph’s

parental rights. Lana stated that she attended the final hearing on the divorce 46 days after she

gave birth to C.A.B. and that no one requested a guardian ad litem to represent C.A.B.’s best

interests. Finally, Lana stated that she was “looking after [her] own interests, just as [Joseph]

was looking after his own interests.”

        On May 25, 2012, Debra filed a motion to dismiss the bill of review. 2 The motion

asserted the bill of review should be dismissed because: (1) the petition failed to present prima

facie proof to support the requisite elements of an equitable bill of review; (2) Lana could have

filed a motion for new trial or appealed from the original divorce decree; and (3) laches should

bar the equitable proceeding filed over thirteen years after the agreed decree was signed. Lana


2
 Although we recognize that Debra is acting in her capacity as independent executrix of Joseph’s estate, the opinion
will refer to Debra as the appellee for ease of reference.

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responded that the motion to dismiss should be denied because no guardian ad litem was

appointed to represent C.A.B. during the divorce/termination proceeding. Lana attached her

motion for summary judgment to her response. After a hearing, the trial court granted the

motion to dismiss.

                      EQUITABLE BILL OF REVIEW PRETRIAL PROCEDURE

         A bill of review is an equitable proceeding brought by a party seeking to set aside a

judgment that no longer can be challenged by a motion for new trial or by direct appeal.

Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004); In re A.A.S., 367 S.W.3d 905, 908 (Tex.

App.—Houston [14th Dist.] 2012, no pet.). In order to invoke the equitable powers of the court,

the bill of review petitioner must file a petition. Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex.

1979).    The petitioner ordinarily must plead and prove: (1) a meritorious defense to the

underlying claim; (2) which the petitioner was prevented from making by the fraud, accident, or

wrongful act of his opponent or by official mistake; and (3) unmixed with any fault or negligence

of his own. Caldwell, 154 S.W.3d at 96; In re A.A.S., 367 S.W.3d at 908.

         With regard to the meritorious defense requirement, the petition must allege, “with

particularity, sworn facts sufficient to constitute [a meritorious] defense and, as a pretrial matter,

present prima facie proof to support the contention.” Baker, 582 S.W.2d at 408; see also Elliott

v. Elliott, 21 S.W.3d 913, 916–17 (Tex. App.—Fort Worth 2000, pet. denied). “This preliminary

showing is essential in order to assure the court that valuable resources will not be wasted by

conducting a spurious ‘full-blown’ examination of the merits.” Baker, 582 S.W.2d at 408; see

also Elliott, 21 S.W.3d at 917. “[A] prima facie meritorious defense is made out when it is

determined that the complainant’s defense is not barred as a matter of law and that he will be

entitled to judgment on retrial if no evidence to the contrary is offered.” Baker, 582 S.W.2d at

408–09; see also Elliott, 21 S.W.3d at 917. “This is a question of law for the court.” Baker, 582
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S.W.2d at 409; see also Elliott, 21 S.W.3d at 917. “Prima facie proof may be comprised of

documents, answers to interrogatories, admissions, and affidavits on file along with such other

evidence as the trial court may receive in its discretion.” Baker, 582 S.W.2d at 409. “The bill of

review defendant may respond with like proof showing that the defense is barred as a matter of

law, but factual questions arising out of factual disputes are resolved in favor of the complainant

for the purposes of this pretrial, legal determination.” Id. “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.” Baker, 582 S.W.2d at 409; see also Elliott, 21 S.W.3d at 917. “[I]f a

prima facie meritorious defense [is] shown, the court will [then] conduct a trial on the bill of

review petition” where the other bill of review elements will be considered. Baker, 582 S.W.3d

at 409; see also Jones v. Tex. Dept. of Protective & Regulatory Servs., 85 S.W.3d 483, 488 (Tex.

App.—Austin 2002, pet. denied).

       This procedure is important in determining what issues this court can consider in this

appeal. Since the trial court dismissed the bill of review petition after the pretrial hearing, the

only issue considered by the trial court, and the only issue this court may consider, is whether a

prima facie meritorious defense was made out. See Beck v. Beck, 771 S.W.2d 141, 142 (Tex.

1989) (holding appellate court erred in considering issue other than whether the petitioner

presented prima facie proof of a meritorious defense). Also, although the appellee’s brief refers

to an abuse of discretion standard of review, that standard applies only after a trial on the bill of

review petition, not to a pretrial dismissal. See Gardner v. LeGrand, No. 12-11-00290-CV, 2012

WL 2848768, at *1 (Tex. App.—Tyler July 11, 2012, no pet.); Ramsey v. State, 249 S.W.3d 568,

574 (Tex. App.—Waco 2008, no pet.)




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                                     MERITORIOUS DEFENSE

       The petition in the instant case alleges the failure to appoint a guardian ad litem to

represent C.A.B. in the underlying divorce proceeding as a meritorious defense. At the time of

the underlying divorce proceeding, the Texas Family Code required, in pertinent part, that a trial

court appoint a guardian ad litem to represent the interests of a child in a suit in which the

termination of the parent-child relationship was requested, unless the court found “that the

interests of the child will be represented adequately by a party to the suit and are not adverse to

that party.” Act of May 25, 1995, 74th Leg., R.S., ch. 751, § 15, 1995 Tex. Gen. Laws 3893.

The appointment was to be made “immediately after the filing of the petition but before the full

adversary hearing to ensure adequate representation.” Id.

       The appellant’s brief first asserts that two separate, express findings were required to be

made: (1) the interest of the child will be adequately represented by a party to the suit; and (2)

the interests of the child are not adverse to the party. Because the trial court in the instant case,

however, made a specific finding that Lana adequately represented C.A.B.’s best interest, a

finding that Lana’s interests were not adverse to C.A.B.’s can be implied. See TEX. R. CIV. P.

299 (when one or more elements of a ground of recovery or defense is expressly found by the

trial court, omitted unrequested elements may be implied); In re J.F.C., 96 S.W.3d 256, 273–75

(Tex. 2002) (holding omitted finding can be deemed or implied in parental termination case);

Cervantes-Peterson v. Tex. Dept. of Family & Protective Servs., 221 S.W.3d 244, 252 n.9 (Tex.

App.—Houston [1st Dist.] 2006, no pet.) (noting any number of implied findings of fact may

support a trial court’s parental termination order); cf. In re K.M.M., 326 S.W.3d 714, 715 (Tex.

App.—Amarillo 2010, no pet.) (holding no finding could be implied where no specific finding

entered by the trial court encompassed an element of whether the mother could adequately

represent the child).
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       During oral argument, Lana’s attorney argued that the finding that Lana’s interests were

not adverse to C.A.B.’s could not be implied, citing Turner v. Lutz, 654 S.W.2d 57, 58–59 (Tex.

App.—Austin 1983, no writ). In Turner, however, the Austin court was precluded from making

implied findings because the appellant requested findings of fact and the trial court made no

express finding which could be construed as being an element related to the adequacy of the

children’s representation. 654 S.W.2d at 58–59. The Austin court noted that the trial court’s

express findings could not be extended by implication to cover further independent facts. Id. at

58. Although the Austin court questioned whether it would be willing to imply findings in the

context of a parental termination case, we note that the Austin court’s decision preceded the

Texas Supreme Court’s decision in In re J.F.C. In In re J.F.C., the jury charge required the jury

to find a statutory ground for termination, but omitted the requirement that the jury also find that

termination was in the child’s best interest, which was “a statutorily prescribed element for

parental termination.” 96 S.W.3d at 262. The Texas Supreme Court held that the omitted

finding could be deemed or implied. Id. at 273–75. Moreover, several cases have indicated that

a finding that the party can adequately represent the child’s best interest is sufficient by itself to

satisfy the statute. See Nichols v. Nichols, 803 S.W.2d 484, 485 (Tex. App.—El Paso 1991, no

pet.) (noting trial court was required to find “that the interests of the child would be adequately

represented by a party to the suit”); In re D.E.W., 654 S.W.2d 33, 35 (Tex. App.—Fort Worth

1983, writ ref’d n.r.e.) (noting finding that interests of child could be adequately represented by

mother satisfied statute). Finally, a finding that Lana represented C.A.B.’s best interests would

appear to directly contradict a finding that Lana’s interests were adverse to C.A.B. In other

words, if their interests were adverse, Lana could not represent C.A.B.’s best interests. As

previously noted, the parties waived a making of the record of the testimony introduced during

the divorce/termination proceeding; therefore, we must presume the evidence supported the trial
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court’s finding that Lana represented C.A.B.’s best interests, which necessarily encompasses the

implicit finding that Lana’s interests were not adverse to C.A.B.

       In her brief, Lana also appears to argue that the requisite findings could not have been

supported by the record. Lana cites three cases in support of this contention.

A.     Nichols v. Nichols

       In the first case cited in Lana’s brief, the trial court signed a default judgment terminating

the father’s parental rights. Nichols v. Nichols, 803 S.W.2d 484, 485 (Tex. App.—El Paso 1991,

no pet.). The trial court later denied the mother’s motion for new trial, and the mother appealed.

Id.

        The appellate court noted that the trial court was required to find “that the interests of the

child would be adequately represented by a party to the suit.” Id. The court noted, however, that

no such finding was made by the trial court. Id. Moreover, the court noted that no such finding

could have been made under the facts of the case since the mother did not answer or make an

appearance. Id. The court further asserted that even if the mother had appeared, she could not

likely represent both her own and the child’s interest in a suit in which the father was seeking to

terminate his relationship. Id.

B.     Barfield v. White

       In the second case cited in Lana’s brief, the mother sought to terminate the father’s

parental rights for failing to contribute to the child’s support. Barfield v. White, 647 S.W.2d 407,

408 (Tex. App.—Austin 1983, no pet.). The mother sought the termination so that her new

husband could adopt the child. Id. The father subsequently appealed the termination order. Id.

       The appellate court noted that the trial court failed to make the requisite statutory finding.

Id. at 409. The appellate court further noted that if an inadequate post-judgment finding could be

considered sufficient, it could not “accept the trial court’s determination that the interests of this
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five-year-old child were adequately represented when both parties were strongly advocating their

own interests.” Id. The appellate court described the parties as being “very partisan” and the

mother as being interested in removing the legal barrier to the adoption by her new husband. Id.

Noting the drastic nature of an “involuntary termination of parental rights,” the court asserted:

                We think it would be a rare situation where the trial court can properly
       find that an attorney or guardian ad litem is not needed when one parent is trying
       to terminate the other parent’s parental rights. These cases by their very nature
       require the father and mother to litigate their personal interests. There is no party
       in this type of litigation whose primary duty is to protect the child’s interests.

Id.

C.     Arnold v. Caillier

       In the final case cited in Lana’s brief, the mother also sought to terminate the father’s

parental rights to their six-year-old daughter based on his willful failure to support the child.

Arnold v. Caillier, 628 S.W.2d 468, 468 (Tex. App.—Beaumont 1981, no pet.). The trial court

did not appoint a guardian ad litem to represent the minor child nor did it make the requisite

statutory finding. Id. at 469. The father filed a direct appeal of the order. Id. at 468.

       The appellate court noted, “The parties were, as is customary in such litigation, very

partisan and the mother was interested in removing the legal barrier to the adoption of the child

by her husband.” Id. at 469. The court further asserted, “The father and the mother, the latter

aided by her husband, were busily litigating their personal interests, i.e., their personal right to

have the child present in their respective homes; in the meanwhile, there was no one present

whose primary obligation was to protect the child’s rights then being litigated.” Id. at 470.

D.     Factual Distinctions between Instant Case and Cited Cases

       Each of the cited cases is distinguishable from the instant case for several reasons. First

and foremost, unlike the express finding made in the instant case that Lana represented C.A.B.’s

best interest, the trial court in each of the cited cases made no express finding relating to the
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adequacy of the child’s representation. Although the courts stated in dicta reasons why the

record might not have supported such a finding even if the finding had been made, the

termination in each of the foregoing cases was opposed, unlike the consensual termination

sought in the instant case. At the time of the divorce/termination, the applicable statute required

an appointment to be made only before a “full adversarial hearing” which existed (or would have

existed absent a default) in the cited cases, but no “full adversarial hearing” occurred in the

instant case because the decree was consensual.

E.     In re D.E.W.

       Unlike the three cases cited in appellant’s brief, in In the Interest of D.E.W., 654 S.W.2d

33 (Tex. App.—Fort Worth 1983, writ ref’d n.r.e.), the Fort Worth court addressed a factual

situation similar to the one present in the instant case. Although the mother in D.E.W. also

sought to terminate the father’s parental rights to enable an adoption, the father in that case

signed an affidavit of relinquishment of his rights. 654 S.W.2d at 34–35. The father testified

that he read the affidavit and understood it before he signed it. Id. at 35. The trial court made a

specific finding that the interests of the child could be adequately represented by the mother. Id.

On appeal, the Fort Worth court concluded that the finding complied with the statute, and there

was no showing that the court was in error in making the finding. Id.

                                           CONCLUSION

       As previously noted, the bill of review petitioner bears the burden to “present prima facie

proof to support her contention.” Baker, 582 S.W.2d at 408. In this case, Lana as C.A.B.’s next

friend failed to present prima facie proof that the trial court was required to appoint a guardian ad

litem given: (1) the consensual nature of the divorce proceeding; (2) Lana’s request that the trial

court not appoint a guardian ad litem; (3) the trial court’s express finding that Lana was

representing C.A.B.’s best interest; and (4) the waiver of the making of a record of the divorce
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                                                                                04-12-00389-CV


proceeding. Accordingly, the trial court properly dismissed the bill of review, and the trial

court’s order is affirmed.

                                               Catherine Stone, Chief Justice




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