Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF TRAVIS COUNTY, 353RD JUDICIAL DISTRICT
NO. D-1-FM-16-002811, HONORABLE AMY CLARK MEACHUM, JUDGE
Justices Puryear, Pemberton, and Goodwin.
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 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
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.
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.
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.
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.
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.
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).
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)).
raises four issues 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 ...