
 








NUMBER 13-02-555-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG




JOHN DAVID TEMPLE,                                                                Appellant,

v.

RUTH ANN ARCHAMBO,                                                              Appellee.




On appeal from the 105th District Court
of Kleberg County, Texas.




O P I N I O N

Before Justices Hinojosa, Yañez, and Castillo
Opinion by Justice Castillo

          Appellant John David Temple appeals from the denial of a petition for bill of review
to overturn findings in a divorce decree relating to the issue of paternity.  Temple was a
party to an agreed decree of divorce entered in 1989.  In 2000, Temple raised a challenge
that he was not the father of R.M.T., the minor child in the divorce proceedings.  Temple
limits his sole issue to whether the trial court committed reversible error in refusing to order
pre-trial paternity testing.  We affirm.
I.  BACKGROUND
          Temple and appellee Ruth Ann Archambo were divorced by an agreed decree on
May 12, 1989.  The divorce decree includes the signatures of both parties, reflecting their
approval as to form and content.  The decree states that the "parties have consented to
the terms of this decree and stipulated it is a contract."    The decree recites the trial court’s
finding that Temple and Archambo are the parents of the minor child, R.M.T., born on
September 22, 1986.  The decree includes orders for conservatorship, visitation, and
support of the child.
   Temple did not challenge his paternity at any time during the divorce
proceedings.  However, on September 11, 2000, Temple filed an original petition for bill
of review, alleging R.M.T. did not resemble him or any member of his family.  Temple
attached to his petition a copy of a DNA paternity report prepared by Identigene.  Temple 
alleged that:  (1)  DNA paternity testing excluded him as the father of the child;
  (2)
Archambo's fraudulent conduct in representing R.M.T. as his biological child precluded him
from raising the paternity issue earlier; and (3) his actions regarding the judgment that he
was R.M.T.'s father were not intentional or the result of negligence on his part because he
had no evidence then that he was not the child's biological father.  Temple sought to reform
the divorce decree, terminate future child support payments, and recover all child support
payments already made.  By separate motion, Temple requested court-ordered  paternity
testing that was scientifically acceptable for use in a court of law.
  In her verified answer,
Archambo stated she had "no knowledge that would confirm that John Temple is not the
biological father of [R.M.T.].  She was conceived and born within our marriage which was
inclusive from December 23, 1981 to May 12, 1989."    
          The trial court conducted a preliminary hearing on Temple's petition for bill of review
to determine whether he presented a prima facie case of a meritorious ground on appeal. 
The trial court took judicial notice of the file, considered the pleadings, and heard the
arguments of counsel.  Following the hearing, the trial court denied and dismissed the
petition for bill of review and other relief.  This appeal ensued.
          The trial court denied Temple's request for paternity testing.  Initially, we are faced
with the unique question of whether a petitioner in a bill of review proceeding must
establish his prima facie case for the granting of a bill of review before he may proceed
with discovery in the portion of the suit to set aside the earlier judgment which has become
final.  Spears v. Haas, 718 S.W.2d 756, 758 (Tex. App.–Corpus Christi 1986, orig.
proceeding).  In Spears, we held that, as a general rule, discovery is appropriate prior to
the pretrial hearing at which the petitioner must prove his prima facie case for bill of review. 
Id.  However, the general rule does not encompass serology testing to determine paternity
until after the prima facie case has been established.  See id.  We concluded that
serological testing would not in any manner aid the petitioner in establishing the elements
necessary to show the prima facie grounds of fraud, accident, wrongful act of opposing
party, or official mistake.  See id.   After determining that the petitioner did not plead or
prove his prima facie case on his petition for bill of review, we concluded the trial court did
not abuse its discretion in denying paternity testing and denied mandamus relief.  Id.           Thus, to determine whether the trial court abused its discretion in denying paternity
testing here, we first determine whether Temple pled and proved his prima facie case on
his petition for bill of review.  Id.
II.  BILL OF REVIEW
A.  Adequate Pleading
           Upon the expiration of the trial court's plenary power, a judgment cannot be set
aside by the trial court except by bill of review for sufficient cause, filed within the time
allowed by law.  See  Tex. R. Civ.  P.  329b(f).  A bill of review is an equitable action
brought by a party to a prior action who seeks to set aside a judgment that is no longer
appealable or subject to a motion for new trial.   State v. 1985 Chevrolet Pickup Truck, 778
S.W.2d 463, 464 (Tex. 1989) (per curiam) (op. on reh’g); Mowbray v. Avery, 76 S.W.3d
663, 682 (Tex. App.–Corpus Christi 2002, pet. denied).  
          The grounds upon which a bill of review can be obtained are narrow because the
procedure conflicts with the fundamental policy that judgments must become final at some
point.  King Ranch v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003) (citing Alexander v.
Hagedorn, 148 Tex. 565, 226 S.W.2d 996, 998 (Tex. 1950)); see Transworld Fin. Servs.
Corp. v. Briscoe, 722 S.W.2d 407 (Tex. 1987); Montgomery v. Kennedy, 669 S.W.2d 309,
312 (Tex. 1984).  The burden on a bill of review petitioner is heavy.  See Layton v.
Nationsbanc Mortg. Corp., 141 S.W.3d 760, 763 (Tex. App.–Corpus Christi 2004, no
pet.).
          Before a litigant can successfully invoke the equitable powers of the court and
secure a bill of review to set aside a final judgment, he must allege and prove: (1) a
meritorious defense to the cause of action alleged to support the judgment; (2) which he
was prevented from making by the fraud, accident or wrongful act of the opposing party;
(3) unmixed with any fault or negligence of his own.  King Ranch, 118 S.W.3d at 752 (citing
Hagedorn, 226 S.W.2d at 998); see also Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927
(Tex. 1999);  Baker v. Goldsmith, 582 S.W.2d 404, 407-08 (Tex. 1979).  The petitioner
must further allege, with particularity, sworn facts sufficient to constitute a meritorious
defense and, as a pretrial matter, present prima facie proof to support the contention. 
1985 Chevrolet Pickup Truck, 778 S.W.2d at  464.  
          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.  Baker v. Goldsmith, 582 S.W.2d 404, 408 (Tex. 1979).   The relevant inquiry
is not whether "the result would probably be different" on retrial.  Id.  Such a test would
require the court to weigh the evidence.   Id.  Rather, 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.  Id. 
B.  The Prima Facie Proof of a Meritorious Defense 
          Prima facie proof may be comprised of documents, answers to interrogatories,
admissions, and affidavits on file along with such other evidence that the trial court may
receive in its discretion.  Id.  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. 
Id.   On the other hand, if a prima facie meritorious defense has been shown, the court will
conduct a trial.  Id.  In any event, only one final judgment may be rendered in a bill of
review proceeding either granting or denying the requested relief.  Id.  
C.  Extrinsic or Intrinsic Fraud
          A petition for bill of review must be filed within four years of the date of the  disputed
judgment.  See Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 1997);  Caldwell v.
Barnes, 975 S.W.2d 535, 538 (Tex.1998).   The only exception to the four-year limitation
is where the petitioner proves extrinsic fraud.  Manley v. Parsons, 112 S.W.3d 335, 338
(Tex. App.–Corpus Christi 2003, pet. denied) (emphasis added).  
          Fraud is classified as either extrinsic or intrinsic. King Ranch, 118 S.W.3d at 752. 
Extrinsic fraud is fraud which denies a party the opportunity to fully litigate at trial all the
rights or defenses that could have been asserted.  Id. (citing  Tice v. City of Pasadena, 767
S.W.2d 700, 702 (Tex. 1989) (orig. proceeding)).  It is wrongful conduct practiced outside
of the adversary trial–such as keeping a party away from court, making false promises of
compromise, denying a party knowledge of the suit–that affects the manner in which the
judgment is procured.  Ince v. Ince, 58 S.W.3d 187, 190 (Tex. App.–Waco 2001, no pet.) 
Extrinsic fraud is collateral fraud in the sense that it must be "collateral" to the matter
actually tried and not something which was actually or potentially in issue in the trial. 
Montgomery, 669 S.W.2d at 312.  
          Intrinsic fraud, by contrast, relates to the merits of the “issues which were presented
and resolved–or could have been resolved–in the former action.”  Ince, 58 S.W.3d at 190. 
Within that term are included such matters as fraudulent instruments, perjured testimony,
or any matter which was actually presented to and considered by the trial court in rendering
the judgment assailed.  Hagedorn, 226 S.W.2d at 1001.  Intrinsic fraud is “inherent in the
matter considered and determined before the trial court ‘where the fraudulent acts pertain
to an issue involved in the original action, or where the acts constituting the fraud were, or
could have been litigated therein.’” Montgomery, 669 S.W.2d at 313 (emphasis added)
(citing Mills v. Baird, 147 S.W.2d 312, 316 (Tex. Civ. App.–Austin 1941, writ ref’d)); see
also Amanda v. Montgomery, 877 S.W.2d 482, 488 (Tex. App.–Houston [1st Dist.] 1994,
orig. proceeding) (Hedges, J.,  concurring) (providing an expanded analysis of intrinsic and
extrinsic fraud). 
            Only extrinsic fraud will entitle one to relief through a bill of review.  King Ranch,
118 S.W.3d at 752 (citing Tice, 767 S.W.2d at 702).   Intrinsic fraud will not support a bill
of review because each party must guard against adverse findings on issues directly
presented. Id.  “Issues underlying the judgment attacked by a bill of review are intrinsic and
thus have no probative value on the fraud necessary to a bill of review.”  Id. (citing Tice,
767 S.W.2d at 702).  
          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.  Wembley, 11 S.W.3d at 927;
Crouch v. McGaw, 138 S.W.2d 94, 96 (Tex. 1940) (a bill of review requires “something
more than injustice”).  
D.  Standard of Review
          We review the granting or denial of a bill of review under an abuse of discretion
standard.  Parsons, 112 S.W.3d at 337.  When the inquiry on the bill of review concerns
a question of law, such as whether appellant presented prima facie proof of a meritorious
defense, we review the trial court's decision de novo. Baker,  582 S.W.2d at 409; Parsons,
112 S.W.3d at 337 n. 2.  We review a trial court's order denying serology testing under an
abuse of discretion standard.   Haas, 718 S.W.2d 758. A court abuses its discretion if it
acts without reference to guiding rules and principles or if its actions were arbitrary and
unreasonable.  See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42
(Tex.1985);  see also City of San Benito v. Rio Grande Valley Gas Co., 109 S.W.3d 750,
757 (Tex.2003). 
III.  DISPOSITION
          A divorce case involving children of the marriage is actually two separate lawsuits. 
In re Marriage of Morales, 968 S.W.2d 508, 511 (Tex. App.–Corpus Christi 1998, no pet.). 
Thus, if the parties to a divorce proceeding are the parents of a child, any suit for
dissolution of their marriage must include a suit affecting the parent-child relationship
("SAPCR").   Tex. Fam. Code Ann. § 6.406(b) (Vernon 1998);  Morales, 968 S.W.2d at 511. 
This joinder is mandatory.  Morales, 968 S.W.2d at 511.  Failure to follow joinder mandated
by statute renders a judgment void.  Daniels v. Daniels, 45 S.W.3d 278, 282 (Tex.
App.–Corpus Christi 2001, no pet.); see also  Minga v. Perales, 603 S.W.2d 240, 241 (Tex.
App.–Corpus Christi 1980, no writ).  The final judgment of divorce in this matter was
entered in 1989.  The  decree adjudged the parent-child relationship between Temple and
the minor child and became final.    
          In 2000, Temple filed his application for a bill of review, in which he sought for the
first time to challenge his paternity of the child. The petition was not filed within the four-year statute of limitations. Tex. Civ. Prac. & Rem. Code Ann. § 16.051 (Vernon 1997);
Barnes, 975 S.W.2d at 537; Parsons, 112 S.W.3d at 338. Temple's petition must therefore
allege and prove a prima facie case that his complaint was not barred as a matter of law
and that he would be entitled to judgment on retrial if no contrary evidence was offered. 
Haas, 718 S.W.2d at 758.  Temple had the burden to plead and prove extrinsic fraud, the
absence of his own fault or negligence, and a meritorious defense to the cause of action
supporting the judgment.  Parsons, 112 S.W.3d at 337.  As a pretrial matter, Temple must
have presented prima facie proof of all these contentions, including specific sworn facts
sufficient to constitute a meritorious defense.  Haas, 718 S.W.2d at 758; Amanda, 877
S.W.2d at 485.   In the pre-trial hearing, the only relevant inquiry is whether the
complainant has presented prima facie proof of the meritorious defense.  Amanda, 877
S.W.2d at 486. 
A.  Adequacy of the Pleading
          Temple alleged that his former wife had represented to him that the child was his
biological daughter, but that it had become apparent that the child did not resemble him. 
He alleged that paternity testing excluded him as the father of the child. 
          On appeal, Temple argues that pre-trial discovery is proper before any final
determination of whether or not he may proceed with a bill of review. As we have noted,
before being entitled to proceed to a hearing on the issue of whether there is a meritorious
defense, the complainant must meet the initial requirement of adequately alleging fraud and
the absence of negligence.  Id.  Failure to plead extrinsic fraud will result in denial of the
right to a trial by bill of review.  Ince, 58 S.W.3d at 190 (citing Tice, 767 S.W.2d at 702).  
          We have reviewed the pleadings as we must.  Temple's pleadings do not establish
the requisites of a bill of review and lack the particularity necessary to establish a prima
facie case.   Specifically, Temple has not pleaded extrinsic fraud.  Haas, 718 S.W.2d at
758.  Paternity, although not contested, was an issue agreed to by the parties and
addressed and resolved by the trial court.  See Ince, 58 S.W.3d 190.  The decree
establishes the parent-child relationship.  Temple did not allege any act on the part of
Archambo that prevented him from contesting the issue of paternity.  See id.  He did not
allege that he could not contest paternity at the final divorce hearing or that he was denied
that defense as a matter of law.  We conclude that Temple alleged only intrinsic fraud
because his "meritorious defense" could have been fully presented at the original
proceeding.  See id.  
          Circumstances similar to those presented here were addressed by the court in
Amanda v. Montgomery, 877 S.W.2d at 488.  In Amanda, the complainant alleged that the
child's mother concealed her knowledge of the identity of the child's biological father.  Id. 
The court concluded this was an allegation of intrinsic fraud because it pertained to
paternity, an issue involved in the original action.  Id. The court concluded that "paternity
was an issue in the divorce, whether or not the issue was actually contested."  Id.  The
divorce decree’s declaration that the complainant was the child's father meant that paternity
was a matter “considered and determined” in the divorce proceeding.  Id.; see also Ince, 58
S.W.3d at 190 (all the issues relating to paternity “were fully litigated or could have been
fully litigated”); Martindale v. Reno, 132 S.W.3d 462, 465 (Tex. App.–Eastland 2003, no
pet.) (holding that alleged fraud was not extrinsic fraud, and fact that paternity was not
contested in underlying divorce did not mean it could not have been).
          Temple alleged fraudulent misrepresentation of the true paternity of R.M.T. 
However, this is intrinsic fraud concerning an issue “that was admitted, uncontested, and
settled in the divorce proceeding: parentage of the child born of the marriage.” Wise v.
Fryar, 49 S.W.3d 450, 455 (Tex. App.–Eastland 2001, pet. denied), cert. denied, 122 S. Ct.
808 (2002).
   Only extrinsic fraud will be sufficient to grant relief by bill of review; “the
equitable remedy . . . is not available to challenge the prior choices a party has made
concerning issues which have been litigated and resolved in a final, unappealed judgment.” 
Id. at 456; see generally Tice, 767 S.W.2d 700.  
          We pause to emphasize that the question before us is a procedural one which does
not involve the validity or propriety of paternity testing.  See Reno, 132 S.W.3d at 463.
Temple’s reliance upon W.K. v. M.H.K., 719 S.W.2d 232, 233 (Tex. App.–Houston [14th
Dist.] 1986) is misplaced.  That case, although addressing the propriety and weight of DNA
testing,  involved a direct and timely appeal from an adjudicated divorce.  The appellant did
not bear the same burden of proof as one who seeks relief through a bill of review. 
Similarly, In the Interest of S.C.V., 750 S.W.2d 762 (Tex. 1988), involved a paternity suit
and a direct appeal from a final trial and judgment. See id.  The admissibility of DNA testing
is not at issue here. 
          Our review also does not extend to whether Temple is the father of R.M.T.  See 
Reno, 132 S.W.3d at 463.  The question before us is whether Temple met the requirements
necessary for him to establish that he was entitled to relief by bill of review.  Id.   We find
that he did not.  Temple alleged intrinsic fraud. He attacked paternity, an issue underlying
the decree of divorce.   Because intrinsic fraud will not support a bill of review, Temple's
pleading was insufficient.  See King Ranch, 118 S.W.3d at 752 (noting that this type of
fraud has no probative value on the fraud necessary to a bill or review).  
B.  Adequacy of the Prima Facie Proof 
          The proof of paternity Temple attached to the petition contains a disclaimer regarding
the accuracy and validity of the report.  The disclaimer establishes that the chain of custody
for the collected specimen was not compliant with the company's guidelines and, thus, the
reported result "can not be considered to be a scientifically accepted paternity test for use
in a court of law."  In his motion, Temple requested paternity testing "which is scientifically
accepted to use in a court of law."   In his affidavit attached to the petition, Temple verified
the petition but did not deny paternity.  Archambo attested that the child was conceived and
born during the marriage.  Contrary to Temple's allegation, Archambo stated that R.M.T.
resembled Temple.  As we have already concluded, Temple's allegations concern paternity
and, thus, intrinsic fraud.  We conclude that the record is devoid of evidence of extrinsic
fraud.  
C.  Serology Testing
          Because Temple did not plead or prove his prima facie case on his petition for bill
of review, we cannot conclude that the trial court acted without reference to guiding rules
and principles or that its actions were arbitrary and unreasonable.   Downer, 701 S.W.2d
at 241-42.  
IV.  CONCLUSION
          Temple could not proceed with his bill of review because:  (1) he did not allege or
prove extrinsic fraud; and (2) he did not allege with particularity sworn facts sufficient to
constitute a meritorious defense and thus, as a pretrial matter, did not present prima facie
proof to support the defense.  Baker, 582 S.W.2d at 408-09.  Accordingly, the trial court did
not err in dismissing his petition.  We conclude the trial court did not abuse its discretion in
denying  pre-trial paternity testing.  Haas, 718 S.W.2d at 758.   We affirm.
 
 
                                                                                      ERRLINDA CASTILLO
                                                                                      Justice
 
Opinion delivered and filed
this 24th day of March, 2005.
