James Larrien Hatch v. Delfina Dilia Proctor, formerly Delfina Dilia Hatch--Appeal from 207th District Court of Hays County

cv5-401.dd.hatch.quick TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-95-00401-CV
James Larrien Hatch, Appellant
v.
Delfina Dilia Proctor, formerly Delfina Dilia Hatch, Appellee
FROM THE DISTRICT COURT OF HAYS COUNTY, 207TH JUDICIAL DISTRICT
NO. 92-0369, HONORABLE CHARLES RAMSAY, JUDGE PRESIDING

PER CURIAM

 

James Larrien Hatch appeals the denial of his bill of review. He sought to set aside the judgment of divorce that ended his marriage to Delfina Dilia Hatch. Mr. Hatch raises several points of error against various trial-court rulings. We will affirm the judgment because we find that Mr. Hatch could not proceed by bill of review.

Mr. Hatch was not eligible to proceed by bill of review because he did not use the available avenues to challenge the original judgment. When a party permits a judgment to become final by not filing a motion for new trial or an appeal, he cannot proceed by petition for bill of review without showing good excuse for failure to exhaust adequate legal remedies. French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967); see also Rizk v. Mayad, 603 S.W.2d 773, 775 (Tex. 1980); Hesser v. Hesser, 842 S.W.2d 759, 765 (Tex. App.--Houston [1st Dist.] 1992, writ denied). Following a November 1992 trial, the trial court signed the final decree of divorce in January 1993. Mr. Hatch did not file a motion for new trial until May 1993, after the judgment became final. Nor did he appeal the judgment. He did not exhaust his available adequate legal remedies.

Neither did he show good excuse for his failure to exhaust these remedies. Mr. Hatch contends that he was dissatisfied with his counsel's performance and that the judgment left him with no money to seek counsel elsewhere. We find that these explanations do not show good excuse. The record does not show that he was misinformed about the technical aspects of appeal. The record does not show that his trial counsel refused to file the appeal. Mr. Hatch admits that he knew at the trial in November of the facts underlying his claims in the bill (e.g., that Mrs. Hatch placed a much lower value on the marital homestead in his interrogatory responses than she had in her draft responses and that she got a painting she had agreed he could have). More than two months passed between the time the trial court announced its decision and when it signed the judgment, so he had more than three months in which to decide whether to file a motion for new trial. Had he filed a motion for new trial, he would have then had an additional two months in which to consider whether to appeal. Though Mr. Hatch's subsequent diligence in researching and pursuing this bill of review is not questioned, it does not show good excuse for ignoring previously available remedies.

Our decision obviates discussion of Mr. Hatch's points of error. Because he did not meet the threshold requirement of eligibility for relief by bill of review, any errors by the trial court in denying him that relief were harmless. We affirm the judgment denying the bill of review.

 

Before Chief Justice Carroll, Justices Aboussie and Kidd

Affirmed

Filed: May 29, 1996

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