

 
 





NUMBER 13-09-00275-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

IN THE INTEREST OF M.I.V., A CHILD



On appeal from 24th District Court  

of Refugio County, Texas.

 

MEMORANDUM OPINION


Before Justices Yañez, Rodriguez, and Garza
Memorandum Opinion by Justice Rodriguez


	Appellant Willie James Coleman challenges the trial court's dismissal of his bill of
review in this paternity case.  By one issue, Coleman contends that the trial court erred in
granting the motion to dismiss his bill of review filed by the Office of the Attorney General
of Texas (OAG), because as an "adjudicated-by-default" parent, Coleman should be
permitted to challenge paternity under the same statutory provision available to
"acknowledged" parents.  See Tex. Fam. Code Ann. § 160.308 (Vernon 2008).  We affirm.

I.  Background
	On May 14, 2007, the OAG issued a non-agreed child support review order (CSRO),
which stated that Coleman was the biological father of M.I.V., a child born to Monica
Vasquez on September 11, 2006.  The CSRO designated Coleman and Vasquez as joint
managing conservators and obliged Coleman to pay Vasquez $573.00 per month in child
support for M.I.V.  On May 29, 2007, the OAG filed a petition with the trial court to confirm
the non-agreed CSRO, and service of process was issued on May 30, 2007.  A verified
return of service appears in the record, in which the sheriff states that, on June 12, 2007,
he personally served Coleman with citation and copies of the OAG's petition and CSRO. 
It is undisputed that Coleman did not appear, answer the petition, or otherwise contest the
CSRO, and on July 23, 2007, the trial court entered its order confirming the non-agreed
CSRO.  Coleman filed no motion for new trial or any other direct appeal of the trial court's
order, and monthly child support was thereafter withheld from Coleman's paycheck. 
	On February 19, 2009, Coleman filed a petition for bill of review.  In his petition,
Coleman claimed that he did not receive notice of the proceedings to establish the
parentage of and child support for M.I.V. until July 27, 2007.  Coleman attached his
affidavit and an affidavit by Gloria Lopez, Coleman's significant other, in support of his
petition.  In their affidavits, both Coleman and Lopez attested that they were unaware of
M.I.V. and the child support and parentage case until July 2007.  Coleman's petition further
alleged the following:
		Due to lack of Notice the Petitioner was unable to present a [sic] his
meritorious defense of parentage.  At the time parentage was adjudicated by
default, no genetic evidence existed or was ordered to establish paternity. 
On or about February 12, 2009 a Final Certificate of Analysis [] was returned
to Petitioner which concluded Petitioner had a 0.0000% [sic] of being the
father of the child at the basis of this Petition.

		. . . Petitioner has no adequate legal remedy now available to avoid
the effect of the Child Support Order signed on July 23, 2007.  Petitioner did
not have the financial ability to act in order to discover he was not the father
of the child until more than thirty days after [the] order was signed. . . .

Coleman attached as another exhibit to his petition a document entitled "Final Certificate
of Analysis," which Coleman claims contains the results of genetic testing that proves he
is not the father of M.I.V.  
	The OAG answered Coleman's petition and filed a motion to dismiss the petition on
the grounds that Coleman's pleadings were deficient to invoke the trial court's jurisdiction
over his bill of review petition.  On April 15, 2009, the trial court held a hearing on
Coleman's petition and the OAG's motion to dismiss, and on April 30, 2009, the trial court
issued an order dismissing Coleman's petition.  This appeal followed.
II.  Standard of Review
	We review the trial court's grant or denial of a bill of review for an abuse of
discretion.  Temple v. Archambo, 161 S.W.3d 217, 224 (Tex. App.-Corpus Christi 2005,
no pet.).  In reviewing the trial court's determination, we indulge every presumption in favor
of the court's ruling.  Garza v. Attorney Gen. of Tex., 166 S.W.3d 799, 808 (Tex.
App.-Corpus Christi 2005, no pet.).  A trial court abuses its discretion when it acts in an
unreasonable and arbitrary manner or without reference to guiding rules and principles. 
Id. 
III.  Discussion
	By one issue, Coleman contends that the trial court erred in granting the OAG's
motion to dismiss his bill of review because an "adjudicated-by-default" parent should not
be prohibited from requesting genetic testing under the four-year challenging period
provided to "acknowledged" parents under the family code.  See Tex. Fam. Code Ann. §
160.308 (providing that "a signatory of an acknowledgment of paternity . . . may commence
a proceeding to challenge the acknowledgment . . . on the basis of fraud, duress, or
material mistake of fact . . . before the fourth anniversary of the date the acknowledgment
. . . is filed").  However, we do not reach Coleman's argument under the family code
because, as a threshold matter, he is not entitled to a bill of review under the facts of this
case.
	"A bill of review is an equitable proceeding 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." 
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004).  Because the procedure conflicts with
the fundamental policy that judgments must become final at some point, the grounds upon
which a bill of review can be obtained are narrow.  Temple, 161 S.W.3d at 223.  Thus, the
burden on a bill of review movant is a heavy one. (1) Id.  
	At the outset, "to invoke the equitable powers of the court," the bill of review movant
must file a petition that "allege[s] factually and with particularity" that the prior judgment
was rendered as the result of fraud, accident, wrongful act of the opposite party, or official
mistake "unmixed" with the movant's own negligence.  Baker v. Goldsmith, 582 S.W.2d
404, 408 (Tex. 1979); In re Office of the Attorney Gen., 276 S.W.3d 611, 618 (Tex.
App.-Houston [1st Dist.] 2008, orig. proceeding).  The movant "must further allege, with
particularity, sworn facts sufficient to constitute [a] defense and, as a pretrial matter,
present prima facie proof to support the contention."  Baker, 582 S.W.2d at 408.  A prima
facie meritorious defense is established if the movant's defense is not barred as a matter
of law and he would be entitled to judgment on retrial if no contrary evidence is offered; this
is a question of law for the trial court.  Id. at 408-09.  
	Here, we will assume, without deciding, that Coleman alleged facts constituting a
meritorious defense to the underlying cause of action by implying in his petition that the
adjudication of M.I.V.'s parentage was erroneous because genetic testing purportedly
shows Coleman is not M.I.V.'s father.  However, Coleman nonetheless wholly failed to
allege any facts in his petition for bill of review that the default judgment rendered against
him was the result of fraud, accident, wrongful act of the OAG, or official mistake.  As a
result, his pleading was insufficient to invoke the equitable powers of the trial court, see
Baker, 582 S.W.2d at 408, and Coleman failed to meet his heavy burden to allege facts
establishing the narrow grounds for a bill of review.  See Temple, 161 S.W.3d at 223.  We
therefore conclude that the trial court did not abuse its discretion in dismissing Coleman's
petition.  See Garza, 166 S.W.3d at 808.  Coleman's sole issue is overruled. 
IV.  Conclusion
	The order of the trial court dismissing Coleman's petition for bill of review is affirmed.

								NELDA V. RODRIGUEZ
								Justice

Delivered and filed the 
3rd day of June, 2010.
1. Generally, bill of review movants must plead and prove (1) a meritorious defense to the underlying
cause of action, (2) which the movants were prevented from making by the fraud, accident or wrongful act of
the opposing party or official mistake, and that was (3) unmixed with any fault or negligence on their own part. 
Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004).  In cases where the movant petitions for a bill of review
based solely on non-service, the movant is relieved of establishing the first two elements, and proof of
non-service conclusively establishes the third element.  Id. at 96-97.  However, it is not entirely clear from
Coleman's petition whether or not he is alleging non-service; his petition and supporting affidavits merely state
he had no "notice" of the proceedings and was not "aware" of M.I.V. or the proceedings.  In light of the verified
sheriff's return of service in the record, we conclude that Coleman was not alleging non-service.  And even
if we were to assume that he alleged non-service, Coleman's bill of review petition is not based solely on that
claim--he also bases his petition on what he appears to contend is a mistake of fact and/or newly discovered
evidence regarding the parentage of M.I.V., as purportedly revealed by genetic testing.  We therefore
conclude that the arguably lesser burden placed on bill of review movants solely alleging non-service does
not apply to the facts of this case.  See In re Office of the Attorney Gen., 276 S.W.3d 611, 618 (Tex.
App.-Houston [1st Dist.] 2008, orig. proceeding).    
