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Bialaszewski v. Bialaszewski

Court of Appeals of Texas, Third District, Austin

August 3, 2017

Matthew Bialaszewski, Appellant
Amanda Bialaszewski, Appellee


          Before Justices Puryear, Pemberton, and Goodwin.


          David Puryear, Justice.

         Matthew Bialaszewski appeals the trial court's order granting Amanda Bialaszewski's petition for bill of review seeking to amend the amount of child-support arrearage awarded to Amanda[1] in a previous court order entered a year earlier. The trial court granted Amanda's petition, vacated in part the previous order, and ordered Matthew to pay a new, increased amount of arrearage. For the following reasons, we reverse the trial court's order and render judgment denying Amanda's petition for bill of review, leaving in place the previous order that was challenged by Amanda.


         The parties were divorced in 2003, and their divorce decree ordered Matthew to pay Amanda child support of $450 per month; payments were to be made through the Texas Child Support Disbursement Unit. About a year later, the Travis County Domestic Relations Office (DRO) filed a motion as a "friend of the court" to hold Matthew in contempt for failure to pay child support, specifying an amount of arrearage accrued since entry of the decree. The court rendered an order adjudging Matthew in contempt, sentencing him to 180 days in county jail, and suspending the sentence for two years while Matthew was placed on community supervision. The order also ordered Matthew to pay Amanda, through the Disbursement Unit, arrearages of $4, 950.

         Over the next decade, the court of continuing jurisdiction rendered several additional orders in this family case, some on the motion of the DRO to again hold Matthew in contempt or to revoke his community supervision. One of the orders-entered during Matthew's initial two-year period of community supervision-revoked his community supervision and committed him to county jail for 180 days in a work-release program. Each of the orders during this ten-plus-year period ordered Matthew to pay an amount of child-support arrearage, the arrearage amount in each order steadily increasing over the years. The latest order-rendered on June 9, 2015 and the subject of Amanda's petition for bill of review-ordered Matthew to pay $10, 194.49 in arrearages and continued the hearing on the DRO's latest motion to revoke Matthew's community supervision until several months hence.[2]

         About a year later, Amanda filed a petition for bill of review seeking to set aside and vacate in part the June 9, 2015 order, entitled "Associate Judge's Report Concerning Agreed Order - Motion to Revoke Community Supervision" (the Challenged Order). Amanda's petition sought to set aside the arrearage finding in the Challenged Order because it was allegedly made in reliance on erroneous information provided by the DRO, which had been tracking Matthew's child-support payments over the years. Specifically, Amanda alleged that the DRO conducted an audit of its arrearage figures in May 2016 and found that the amount stated in the Challenged Order was incorrect; the correct figure, as of April 30, 2016, was allegedly $25, 750.14. Her petition sought to set aside and vacate the Challenged Order, but only to the extent to remove the "incorrect" arrearage finding and to make a new finding that Matthew owed child-support arrearage of $25, 750.14 as of April 30, 2016.

         After a bench trial on Amanda's petition, at which both parties and an attorney with the DRO testified, the trial court rendered an order granting the petition; setting aside and vacating the Challenged Order, but only to the extent necessary to remove the finding that Matthew owed child support arrearage in the amount of $10, 194.49; and finding that Matthew owed child support arrearage in the amount of $24, 749.93 (including interest) as of April 30, 2016, subject to additional findings and orders to be made by the court. Matthew appeals the order granting Amanda's petition and the court's finding that he owes more than twice the amount of arrearage found in the Challenged Order.


         A bill of review is an independent, equitable proceeding seeking to set aside a judgment that is no longer appealable or subject to challenge by a motion for new trial. See Mabon Ltd. v. Afri-Carib Enters., Inc., 369 S.W.3d 809, 812 (Tex. 2012). To set aside a judgment by bill of review, the petitioner must prove: (1) a meritorious defense to the cause of action alleged to support the judgment; (2) that the petitioner was prevented from making through trial and appeal by the fraud, accident, or wrongful act of the opponent; and (3) that the petitioner was not at fault or negligent. Moore v. Brown, 408 S.W.3d 423, 432 (Tex. App.-Austin 2013, pet. denied). In lieu of proving the second element-an opposing party's fraud, wrongful act, or accident-a bill of review petitioner can support her petition via the "official mistake" doctrine by proving that a court official or functionary has provided erroneous information, failed to provide information, or failed to perform required duties. See Mowbray v. Avery, 76 S.W.3d 663, 683-84 (Tex. App.-Corpus Christi 2002, pet. denied).

         A petitioner must additionally demonstrate that she exercised due diligence to assert all adequate legal remedies before filing a bill of review, see Mabon, 369 S.W.3d at 813; Caldwell v. Barnes, 975 S.W.2d 535, 537 (Tex. 1998), and the petitioner is not entitled to a bill of review when she failed to invoke the right of appeal or some other legal remedy when it was available unless an adequate explanation is advanced for bypassing the legal remedy. French v. Brown, 424 S.W.2d 893, 895 (Tex. 1967); Hesser v. Hesser, 842 S.W.2d 759, 765 (Tex. App.-Houston [1st Dist.] 1992, writ denied).

         We review a trial court's order granting or denying a bill of review for abuse of discretion, indulging every presumption in favor of the trial court's ruling. Moore, 408 S.W.3d at 432. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). When the inquiry before us on review concerns a question of law, however, such as whether the bill-of-review plaintiff presented prima facie proof of a meritorious defense, we review the trial court's decision de novo. Jones v. Texas Dep't of Protective & Regulatory Servs., 85 S.W.3d 483, 490 (Tex. App.-Austin 2002, pet. denied). A trial court has no discretion in determining what the law is or applying the law to the facts, even when the law is unsettled. In re Prudential Ins. Co., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding). Because it is fundamentally important that finality be accorded to judgments, bills of review "'are always watched by courts of equity with extreme jealousy, and the grounds on which interference will be allowed are narrow and restricted.'" Alexander v. Hagedorn, 226 S.W.2d 996, 998 (Tex. 1950) (quoting Harding v. W.L. Pearson & Co., 48 S.W.2d 964, 965-66 (Tex. Comm'n App. 1932, holding approved)).

         Matthew raises four issues[3] on appeal, alleging that: (1) the trial court's failure to issue findings of fact and conclusions of law pursuant to his request constituted harmful error; (2) there is legally insufficient evidence to support the trial court's judgment granting Amanda's petition; (3) the trial court abused its discretion in implicitly concluding that the attorney representing the DRO is a "court functionary" for purposes of the official-mistake doctrine; and (4) the trial court erred by determining ...

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