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Grant v. Grant

Court of Appeals of Texas, First District

September 7, 2017

HOWARD GRANT, Appellant
v.
ARIANN M. GRANT, Appellee

         On Appeal from the 387th District Court Fort Bend County, Texas Trial Court Case No. 15-DCV-226932

          Panel consists of Chief Justice Radack and Justices Keyes and Massengale.

          MEMORANDUM OPINION

          Michael Massengale Justice.

         Appellant Howard Grant and appellee Ariann M. Grant Pradia have been married, divorced, remarried, and divorced again. Howard appeals from the denial of a bill of review regarding their first divorce decree from 2011. Howard contended that he had no notice of the trial setting and did not receive notice of the entry of default judgment because Ariann gave the trial court an incorrect last known address for him. Ariann denied the allegations and asserted that the bill of review was barred by the four-year residual statute of limitations. On appeal, Howard raises four issues, arguing that the statute of limitations should have been tolled because he proved extrinsic fraud and that the court erred by denying his bill of review.

         We affirm.

         Background

         Howard and Ariann were married in 1994. In 2010, Ariann sued for divorce. Howard answered and filed a counterpetition for divorce. In spite of this, they continued to live in the same house in Missouri City. Meanwhile, before the divorce was finalized, Howard was convicted of health-care fraud and sentenced to three years in prison. An order dated February 25, 2011 required him to surrender to federal prison in Beaumont on March 15, 2011.

         According to testimony from Vicki Pinak, the attorney who represented Ariann in the first divorce, the trial date was set to ensure that it occurred before Howard had to leave for federal prison, and that issue was discussed with the trial judge. Trial was set for March 8, 2011. A notice of trial, which stated the date, time, and location of trial, was sent to Howard, who was representing himself in the divorce. The certificate of service on the notice of trial stated that a "true and correct copy of the foregoing instrument was sent to Howard Grant by Certified Mail . . . Return Receipt Requested, and U.S. Regular Mail, on this the 15th day of January, 2011."

         Ariann appeared for trial, but Howard did not. At the close of evidence in the first divorce proceeding, the trial court awarded Ariann property that Howard now contends was his separate property. Ariann did not claim that she had a community interest in the property. The record on appeal does not show when the court rendered judgment, but on April 5, 2011, after Howard reported to prison, a notice of the trial court's entry of a final decree of divorce was sent to him at the Missouri City address. Neither party notified the trial court of Howard's change of address. Howard acknowledges that he learned of the first divorce decree no later than a year after it was entered.

         The year after the first divorce, Howard and Ariann remarried. While Howard was incarcerated, Ariann sold, through a trustee, some of the property awarded to her in the first divorce, which Howard now contends was his separate property. In late 2015, Howard and Ariann divorced for a second time. After entry of the second divorce decree, on October 7, 2015, Howard filed a bill of review assailing the first divorce decree. Ariann filed a motion for summary judgment arguing that the bill of review was barred by limitations and that Howard failed to use due diligence to set aside the default judgment in the first divorce.

         The trial court held a hearing on the bill of review. Ariann testified that Howard "opted not to show up" for trial. She testified that Howard had actual notice of the trial setting because her attorney had conducted a deposition at their home the prior week. Ariann testified, "He was properly notified, whether he signed the green card or not. Ms. Pinak came to our home, she did a deposition with him . . . . Howard was fully aware that we were going to trial." Ariann said, "He used the excuse that he had a home monitor on his ankle and he couldn't go. Okay. That may be true, but you can get permission to do everything else. You could have appeared. So I can't respond why he didn't appear; and I don't know why he didn't sign the green card."

         In addition, both Ariann and her attorney testified that neither of them represented to the court that the property in question was community property. The attorney explained the trial court's award of the property to Ariann, saying that Howard was not "there to put on evidence."

         Howard alleged that at the time of the first divorce's trial setting, he was living in the same house and sleeping in the same bed as Ariann. He asserted that Ariann did not inform him of the trial date, and her actions misled him to believe that she was not pursuing the divorce. However, Howard did not support this assertion with testimony or other evidence.

         The trial court denied the bill of review and a subsequent motion ...


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