Daniel Wiegrefe v. Jennefer Wiegrefe Appeal from 368th District Court of Williamson County (memorandum opinion)

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-16-00665-CV Daniel Wiegrefe, Appellant v. Jennefer Wiegrefe, Appellee FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 368TH JUDICIAL DISTRICT NO. 16-0709-C368, HONORABLE RICK J. KENNON, JUDGE PRESIDING MEMORANDUM OPINION Daniel Wiegrefe appeals from the trial court’s order granting Jennefer Wiegrefe’s amended petition for bill of review in this dispute over the division of property in a divorce. After granting the petition, the trial court signed a revised final divorce decree that assigned a certain financial account to Jennefer instead of to Daniel. In three appellate issues, Daniel contends that the trial court abused its discretion in granting the bill of review. Because we conclude that the alleged error in the original divorce decree does not support relief through a bill of review, we will reverse the trial court’s order granting Jennefer’s amended petition for bill of review, vacate the final divorce decree of October 17, 2016, and render judgment reinstating the original divorce decree of March 28, 2016. BACKGROUND1 In January 2016, Daniel and Jennefer signed a mediated settlement agreement (MSA) that settled the disputes arising from their divorce proceedings. This MSA indicated that a certain Edward Jones account (the Account) was to be awarded to Jennefer. The MSA assigned to Daniel’s attorney the task of drafting the divorce decree. Daniel’s attorney drafted the decree and presented it to the parties. Daniel and Jennefer signed the “Final Decree of Divorce,” indicating that they “approved and consented” to the decree “as to both form and substance,” and their attorneys signed the document indicating that they approved it “as to form only.” Neither party has alleged that she or he was not provided with an opportunity to review the decree or that she or he was coerced into signing it. The final divorce decree awarded the Account to Daniel; otherwise it matched the terms of the MSA. On March 28, 2016, Daniel’s attorney “proved-up” the divorce, and the trial court signed the decree. On the same day, the district clerk sent Jennefer’s attorney notice that the trial court had signed the final divorce decree. In the following weeks, Jennefer’s attorney made multiple requests for Daniel’s attorney to send her a file-stamped copy of the final decree. Daniel’s attorney did not provide the document. On April 27, 2016, the trial court’s plenary power expired. On May 16, Jennefer went to the courthouse and obtained a copy of the divorce decree. Later, on June 29, Jennefer met with her financial planner and first learned that the final divorce decree awarded the Account to Daniel. On June 30, after Daniel refused to agree that the Account belonged to Jennefer as provided in the 1 The following facts are undisputed or are taken from the trial court’s findings of fact and conclusions of law and are supported by the record. 2 MSA, Jennefer filed a petition for a nunc pro tunc judgment. On July 18, Jennefer filed an original petition for bill of review. She later filed an amended petition. On September 1, 2016, the trial court held a hearing on the amended petition for bill of review. The same day, the trial court signed an order granting the petition and declaring that the final divorce decree “is void and without force or effect.” On October 17, the trial court signed a revised final divorce decree awarding the Account to Jennefer, and the trial court later issued written findings of fact and conclusions of law explaining its decision. This appeal followed. DISCUSSION 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. See Katy Venture, Ltd. v. Cremona Bistro Corp., 469 S.W.3d 160, 163 (Tex. 2015) (per curiam); In re I.G., No. 03-13-00765-CV, 2015 WL 4448836, at *2 (Tex. App.—Austin July 17, 2015, pet. denied) (mem. op.). “Although a bill of review is an equitable proceeding, ‘the fact that an injustice has occurred is not sufficient to justify relief by bill of review.’” In re I.G., 2015 WL 4448836, at *2 (quoting Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam)); see Marriage of Mobley, 503 S.W.3d 636, 640–41 (Tex. App.—Texarkana 2016, 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, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex. 2003); see Chisti v. Chisti, No. 01-16-00408-CV, 2017 WL 343612, at *1 (Tex. App.—Houston [1st Dist.] Jan. 24, 2017, no pet. h.) (mem. op.) (“Because of the importance our legal system places on the finality of judgments, bills of review are permitted only 3 in exceptional circumstances.”) (citing Nelson v. Chaney, 193 S.W.3d 161, 165 (Tex. App.—Houston [1st Dist.] 2006, no pet.)); In the Interest of a Child, 492 S.W.3d 763, 766 (Tex. App.—Fort Worth 2016, pet. denied) (“The fundamental policy that finality must be accorded to judgments makes the grounds upon which a bill of review will be granted narrow and restricted.”); Reynolds v. Reynolds, No. 14-14-00080-CV, 2015 WL 4504626, at *2 (Tex. App.—Houston [14th Dist.] July 23, 2015, no pet.) (mem. op.) (“Because of the fundamental policy favoring finality of judgments, there are narrow grounds for granting a bill of review.”); Forney v. Forney, 672 S.W.2d 490, 499 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d w.o.j.) (“There must be finality of judgments, and judgments will be disturbed only in the most egregious circumstances. The proof required to establish a right to a bill of review in a divorce case will therefore not be relaxed even in cases where an injustice results.”). When, as here, the judgment being challenged by a petition for bill of review is not a default judgment, the bill-of-review plaintiff must establish the following elements: (1) a meritorious ground of appeal; (2) which the bill-of-review plaintiff was prevented from making by the fraud, accident, or wrongful act of the opposing party or by official mistake; (3) unmixed with any fault or negligence on the part of the bill-of-review plaintiff. See Petro-Chem. Transp., Inc. v. Carroll, 514 S.W.2d 240, 243, 245 (Tex. 1974); Ramsey v. State, 249 S.W.3d 568, 573–74 (Tex. App.—Waco 2008, no pet.); Thompson v. Ballard, 149 S.W.3d 161, 164 (Tex. App.—Tyler 2004, no pet.). We review a trial court’s decision to grant a bill of review for an abuse of discretion. See Marriage of Mobley, 503 S.W.3d at 641; Ramsey v. Davis, 261 S.W.3d 811, 815 (Tex. App.—Dallas 2008, pet. denied). A trial court abuses its discretion when it fails to analyze or apply the law correctly. See In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016); In re American Homestar 4 of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (“A trial court has no discretion to determine what the law is or in applying the law to the facts, and, consequently, the trial court’s failure to analyze or apply the law correctly is an abuse of discretion.”). In her amended petition, Jennefer alleged that the final divorce decree’s award of the Account to Daniel “was an obvious drafting mistake made by the lawyers for both parties.” She stated that she believed “this to be an accidental mistake and not an intentional act by [Daniel] and his prior counsel.” However, the amended petition also stated, “In the alternative, Petitioner alleges that Respondent, by and through his prior counsel, acted in an intentional manner, whereby Respondent acted fraudulently in entering the Final Decree of Divorce which was not drafted in accordance with the terms of the MSA.” In its findings of fact and conclusions of law, the trial court rejected Jennefer’s fraud allegations and found that the error “was a mistake by both parties.” The trial court also found that “[a]ll parties involved made a mutual mistake in drafting” the final divorce decree. In addition, the trial court concluded that “a mistake occurred after entering the [final divorce decree], because as an officer of the Court, [Daniel’s attorney] had a duty to send [Jennefer’s attorney] a copy of the [final divorce decree], and secondly, it is the routine custom and practice that when an order is entered and one lawyer is there, they are to provide a copy to opposing counsel.” Similarly, the trial court concluded that “[Jennefer] was prevented from timely filing a motion for new trial or appeal due to not receiving the [final divorce decree] as required by local custom and practice.” To be entitled to a bill of review, a petitioner must establish that the fraud, accident, or wrongful act of the opposing party that prevented her from making a meritorious ground of 5 appeal was “unmixed with any fault or negligence on the part of the bill-of-review plaintiff.” Ramsey, 249 S.W.3d at 574; see Petro-Chemical, 514 S.W.2d at 243. Here, the trial court found that Daniel or his attorney committed two errors. First, before the trial court signed the final divorce decree, Daniel’s attorney mistakenly drafted the decree to award the Account to Daniel. Second, after the trial court signed the decree, Daniel’s attorney failed to deliver a copy of the decree to Jennefer’s attorney. Assuming, without deciding, that these two errors constituted an “accident” or “wrongful act” that prevented Jennefer from timely filing her appeal, as required for a bill of review, we conclude that Jennefer or her attorney contributed fault or negligence to each of these two errors. First, although Daniel’s attorney drafted the final divorce decree, Jennefer signed it, affirming that she approved of and consented to the document “as to both form and substance.” See Upton v. Tribilcock, 91 U.S. 45, 50 (1875) (“It will not do for a man to enter into a contract, and, when called upon to respond to its obligations, to say that he did not read it when he signed it, or did not know what it contained.”); National Prop. Holdings, L.P. v. Westergren, 453 S.W.3d 419, 425 (Tex. 2015) (per curiam) (“[I]t is not the courts’ role ‘to protect parties from their own agreements.’”) (quoting El Paso Field Servs., L.P. v. MasTec N. Am., Inc., 389 S.W.3d 802, 810–11 (Tex. 2012)); Philadelphia Indem. Ins. Co. v. White, No. 04-12-00721-CV, 2017 WL 32899, at *4 (Tex. App.—San Antonio Jan. 4, 2017, no pet.) (mem. op.) (“The [Texas] supreme court has held that by signing a contract, a party is presumed to have read and understood its contents.”); Malott v. Murchison, 337 S.W.2d 190, 193 (Tex. Civ. App.—Austin 1960, no writ) (“To permit a party, when sued on a written contract, to admit that he signed it but to deny that it expresses the agreement he 6 made, or to allow him to admit that he signed it but did not read it or know its stipulations, would absolutely destroy the value of all contracts.”) (internal quotation marks omitted). Jennefer’s attorney also signed the decree, which included a merger clause providing, “To the extent there exist any differences between the [MSA] and this Final Decree of Divorce, this Final Decree of Divorce shall control in all instances.” Moreover, the trial court explicitly found that “[a]ll parties involved made a mutual mistake in drafting the Agreed Final Decree of Divorce” and that “[t]hese mistakes were brought about by mutual errors of the parties.”2 Because Jennefer was negligent or at fault in approving the contents of the final divorce decree, any error Daniel or his attorney may have made in drafting the document could not have supported a bill of review because it was not “unmixed” with Jennefer’s error. Second, although Daniel’s attorney did not deliver a signed copy of the decree to Jennefer’s attorney, it is undisputed that the district clerk sent notice to Jennefer’s attorney of the final decree on the day it was signed. It is also undisputed that Jennefer or her attorney could have obtained a copy of the final decree from the clerk’s office at any time after it was signed. In addition, although Jennefer obtained a copy of the final decree on May 16, it was not until she met with her financial planner on June 29 that she discovered the alleged mistake. This lapse of time suggests that Jennefer would not have discovered the alleged mistake before the trial court lost plenary power even if she had obtained a copy of the decree on the day it was signed. Therefore, we conclude that the record does not support the trial court’s conclusion that “[neither Jennefer] nor her counsel were 2 To the extent the trial court found that Jennefer did not contribute negligence or fault to the drafting error, this finding conflicts with the trial court’s finding that the drafting error was the result of a mutual mistake. 7 negligent in not bringing her motion for new trial or appeal before the Court’s plenary power expired.” Because Jennefer or her attorney was negligent or at fault in failing to timely obtain a copy of the divorce decree, read it, and discover the mistake, any error Daniel or his attorney may have made in not providing a courtesy copy of the document could not have supported a bill of review because it was not “unmixed” with Jennefer’s error. In an alternative pleading, Jennefer asserted that the divorce decree’s award of the Account to Daniel was fraud. “Fraud in its relation to attacks on final judgments is either extrinsic or intrinsic.” Tice v. City of Pasadena, 767 S.W.2d 700, 702 (Tex. 1989). “Only extrinsic fraud will support a bill of review.” Id.; see Saldana v. Saldana, No. 10-15-00411-CV, 2016 WL 1238730, at *6 (Tex. App.—Waco Mar. 24, 2016, no pet.) (mem. op.) (“Only extrinsic fraud will support the fraud element required for a bill of review to be successful.”). As one of our sister courts has explained, Extrinsic fraud is generally defined as a wrongful act committed by the other party to the suit, which prevented the losing party from either knowing about his rights or defenses, or from having a fair opportunity of presenting them at trial. This general rule, that only extrinsic fraud will justify setting aside a judgment, is based on the principle that judgments are not impeachable for frauds relating to the merits between the parties. All mistakes and errors must be corrected from within by motion for new trial, or to reopen the judgment, or by appeal. The fraud which would otherwise relieve a party from the binding effect of a judgment must be related to some matter other than the issue in controversy in the action. Forney, 672 S.W.2d at 498 (citation omitted); see Nelson, 193 S.W.3d at 165 (“Extrinsic fraud is fraud that is collateral to the matter being tried and prevents a litigant from having a fair opportunity to assert his rights at trial.”); Lawrence v. Lawrence, 911 S.W.2d 443, 447 (Tex. App.—Texarkana 1995, writ denied) (citation omitted) (“Extrinsic fraud is a wrongful act of the opposing party that 8 prevents the losing party from either knowing about his rights or defenses or from having a fair opportunity of presenting them at trial. Extrinsic fraud is collateral to the matter tried and not something that was actually or potentially in issue at trial.”). In contrast, “intrinsic” fraud will not support a bill of review. See Chapman, 118 S.W.3d at 752 (“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.”); Tice, 767 S.W.2d at 702 (“‘Intrinsic fraud,’ by contrast, relates to the merits of the issues which were presented and presumably were or should have been settled in the former action.”). Intrinsic fraud includes “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.” Alexander v. Hagedorn, 226 S.W.2d 996, 1001 (Tex. 1950); see Browning v. Prostok, 165 S.W.3d 336, 348 (Tex. 2005) (same); Lawrence, 911 S.W.2d at 447 (“Intrinsic fraud includes false testimony, fraudulent instruments, and any fraudulent matter the court heard and considered in rendering judgment.”). In Biggs v. Biggs, Norma Biggs brought “a suit in the nature of an equitable bill of review” against her former husband “to set aside the community property division in a divorce judgment.” 553 S.W.2d 207, 208 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ dism’d). Our sister court described the dispute as follows: [T]he specific damages alleged to have resulted from this fraud are limited to the following: (1) that Mr. Biggs told Mrs. Biggs that the property settlement agreement would provide for Mrs. Biggs to get their residence and farm free and clear of all liens and indebtedness when, in fact, the agreement provides that she shall be responsible for the monthly mortgage payments; and (2) that Mr. Biggs, with the aid and assistance of his attorney, deliberately failed to include in the property settlement agreement the community estate in Garden-Land, Inc., and in several insurance policies. 9 Id. at 210. The court then stated, “Only extrinsic fraud will entitle a complainant to relief by bill of review. Intrinsic fraud does not furnish a ground for setting aside a judgment in an independent suit brought for that purpose.” Id. The court explained, “Fraudulent instruments and perjured testimony are species of intrinsic fraud. Assuming that the property agreement signed by Mr. and Mrs. Biggs does not reflect the true agreement between the parties, the instrument would be fraudulent, but not subject to attack by bill of review.” Id. (citation omitted). The court continued: The fraud at most relates to untruths which misled both plaintiff and counsel into acquiescence and approval of an unjust division of property. If misrepresentations were made and appellant relied thereon, they bore either actually or potentially on the matters at issue in the former trial and thus tantamount to no more than intrinsic fraud. Id. (quoting Bankston v. Bankston, 251 S.W.2d 768, 772 (Tex. Civ. App.—Dallas 1952, no writ)). Finally, the court concluded, “We hold that the allegation that the property agreement filed in the divorce trial does not conform to the agreement between the parties is no more than an allegation of intrinsic fraud which will not support a bill of review.” Id. We agree with our sister court’s reasoning in Biggs. In light of statements by the Texas Supreme Court that intrinsic fraud, which includes fraudulent documents, will not support a bill of review, see Browning, 165 S.W.3d at 348; Alexander, 226 S.W.2d at 1001, we conclude that any fraud Daniel or his attorney may have committed in drafting a final divorce decree that awarded the Account to Daniel was not extrinsic fraud that would support a bill of review. Because we conclude, as a matter of law, that the assignment of the Account to Daniel was not extrinsic fraud and that this error was not “unmixed” with Jennefer’s own error, we hold 10 that the trial court abused its discretion in granting Jennefer’s amended petition for bill of review.3 See In re Nationwide Ins. Co. of Am., 494 S.W.3d at 712 (trial court abuses its discretion when it fails to analyze or apply law correctly). Accordingly, we sustain Daniel’s issues to the extent he contends that the trial court abused its discretion in granting Jennefer’s petition for bill of review.4 3 We are aware that this holding arguably results in an inequity in this case. Nevertheless, “the fact that an injustice has occurred is not sufficient to justify relief by bill of review,” Wembley Inv. Co. v. Herrera, 11 S.W.3d 924, 927 (Tex. 1999) (per curiam), and “[t]here must be finality of judgments,” see Forney v. Forney, 672 S.W.2d 490, 499 (Tex. App.—Houston [1st Dist.] 1983, writ dism’d w.o.j.). “The proof required to establish a right to a bill of review in a divorce case will therefore not be relaxed even in cases where an injustice results.” Forney, 672 S.W.2d at 499 (citing Biggs v. Biggs, 553 S.W.2d 207 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ dism’d)). 4 We note that Jennefer argues that the trial court lacked authority to “divest” her of her “separate property” as delineated in the MSA. According to Jennefer, “awarding the Edward Jones Account to Appellant in the Final Decree of Divorce was unconstitutional.” See Tex. Const. art. XVI, § 15 (“Separate and community property of husband and wife”). We disagree, because the trial court made its award on the basis of the final divorce decree, which was signed by both parties and contained the following merger clause: “This Final Decree of Divorce is stipulated to represent a merger of [an MSA] between the parties. To the extent there exist any differences between the [MSA] and this Final Decree of Divorce, this Final Decree of Divorce shall control in all instances. This Final Decree of Divorce is stipulated to represent a partition of the parties’ community property.” (emphasis added). The division of property presented in the final divorce decree therefore supplanted the division of property presented in the MSA. See Springs Window Fashions Div., Inc. v. Blind Maker, Inc., 184 S.W.3d 840, 869 (Tex. App.—Austin 2006, pet. granted, judgm’t vacated w.r.m.) (“In general, a ‘merger clause’ is a contractual provision to the effect that the written terms of the contract may not be varied by prior agreements because all such agreements have been merged into the written document.”); see also Bailey v. Kliebert Dev., LLC, No. 14-15-00984-CV, 2017 WL 924484, at *4 (Tex. App.—Houston [14th Dist.] Mar. 7, 2017, no pet. h.) (mem. op.) (“When contracting parties reduce their agreement to writing, and that writing contains a merger clause, any prior or contemporaneous agreements are presumed to have merged into that final writing.”). 11 CONCLUSION We reverse the trial court’s order granting Jennefer’s petition for bill of review, vacate the trial court’s final divorce decree of October 17, 2016, and render judgment reinstating the “Final Decree of Divorce” of March 28, 2016. __________________________________________ Scott K. Field, Justice Before Chief Justice Rose, Justices Field and Bourland Dissenting Opinion by Justice Bourland Vacated in Part; Reversed and Rendered in Part Filed: August 29, 2017 12

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