Meritorious Defense Requirement for Bill of Review for Default Texas Divorce

When a party does not file an answer or participate in a Texas divorce proceeding, the court may issue a default judgment against them.  A mother recently challenged the default divorce decree entered against her through a petition for bill of review.

A bill of review is brought when a party seeks to set aside a judgment that cannot be challenged by appeal or a motion for a new trial. A party seeking a bill of review generally must show that they have meritorious claim or defense they could not make due to an official mistake or the other party’s fraud, accident, or a wrongful act, with no fault or negligence by the petitioner.  Unless the petitioner claims they were not served, they must first present prima facie proof of a meritorious defense before trial. If the petitioner meets this burden, the court then conducts a trial on the merits. A petitioner shows they have a meritorious defense if the defense is not barred by law and they would be entitled to judgment if there is not contradictory evidence offered on retrial. Any factual dispute is resolved in favor of the petitioner.

The parties got married in 2012 and had two children together.  They separated in 2021.  The father petitioned for divorce in February 2022.  According to the appeals court’s opinion, the mother was service with process, but did not file an answer or otherwise participate.  The mother alleged that they “communicated openly” about child support and possession while the case was pending.  The mother contacted the court’s office in March regarding final hearing dates and was told nothing had been set, but a default divorce decree was entered on April 4.

The default decree granted the father the right to designate the children’s primary residence and receive child support.  It also awarded him an equalization judgment.

The mother timely moved to set aside the decree.  Her attorney contracted COVID and filed an agreed motion for continuance.  The motion was overruled by operation of law before the hearing occurred, however, and the court’s plenary power expired.

The mother subsequently filed a petition for bill of review.  On the date the hearing was scheduled, the father filed an objection and motion asking the court to strike the mother’s pleadings, not allow her to present evidence, and impose sanctions as a result of her failure to respond to discovery.  The trial court denied the mother’s petition after the hearing.

The mother appealed. She argued the trial court erred by making “the incorrect inquiry,” finding she had no meritorious defense, and failing to hold a hearing to determine if she could meet the requirements for bill of review.

Meritorious Defense

The mother argued that the trial court considered whether she had a meritorious defense for her failure to answer instead of a meritorious defense of the cause of action.  The appeals court noted the record was not clear as to the purpose of the hearing.  The trial court stated there could be an evidentiary hearing if it was needed, but inquired if it could base its decision on just the petition.  The father’s attorney indicated the court could only base its decision solely on the petition if it concluded the mother was not entitled to a hearing based on her failure to respond to discovery.  The father’s attorney also argued that the mother would not be able to show fraud or official mistake, even if her petition was taken as true.

The appeals court noted the trial court seemed to consider whether the mother had a reason for not appearing and participating.  Her attorney argued that a meritorious defense was one that would have led to a different result if presented at trial.  She argued the mother’s meritorious defense was that the mother was the primary caregiver; there was insufficient evidence to support child support to the father outside the guidelines; and there was insufficient evidence supporting the equalization judgment.

The mother’s attorney stated she would present exhibits and testimony of the parties.  She also argued the father’s attorney had admitted she had a meritorious defense and asked the court to schedule trial or allow a continuance for discovery.  The trial court instead denied the petition.

The appeals court noted the discussion was confusing and it was unclear if the trial court had applied the law correctly.  The order indicated the trial court denied the petition based on the petition and arguments. The appeals court noted there were no pending motions to dismiss, summary judgment motions, or special exceptions, so the only issue should have been whether the mother made a prima facie showing of a meritorious defense.”

The appeals court also agreed that the father’s attorney had “conced[ed] that there was a meritorious defense.” The mother therefore did not have to present prima facie proof that she had a meritorious defense.  The trial court erred to the extent it denied the petition because the mother failed to present a prima facie case of a meritorious defense.

The appeals court acknowledged the trial court was likely trying to be judicially efficient, but concluded the court’s actions were not consistent with the procedural requirements for bill of review. The appeals court reversed the judgment and remanded the case to the trial court.

Contact a Skilled Dallas Divorce Attorney

If you are served with divorce papers, you should contact an experienced Texas family law attorney right away.  A party who has been served has a limited amount of time to file a written answer, and failure to do so may result in a default judgment. If you have had a default judgment entered against you, a Texas divorce attorney can evaluate your case and advise you on any options you may have.  Set up a consultation with McClure Law Group by calling 214.692.8200.

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