Because the trial court properly treated this case as an equitable bill of review of a final judgment, denied the petition, and made findings of facts and a conclusion of law accordingly, I respectfully dissent to the majority opinion.
Rule 109 of the Texas Rules of Civil Procedure provides for service of process by publication when the residence of any party defendant is unknown, and after due diligence the party affiant has been unable to locate the defendant. The rule further provides that when service of process is issued by the clerk,
[i]n such cases it shall be the duty of the court trying the case to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant or to obtain service of nonresident notice, as the case may be, before granting any judgment on such service.
In this case the Divorce Decree granted on June 7, 1984, states, in part, that the attorney ad litem for John Joseph Morris, received process in this cause by substituted service but did not otherwise answer or appear. It further contains this statement:
The Court, having examined the pleadings and heard the evidence and argument of counsel, finds that all necessary residence qualifications and prerequisites of law have been legally satisfied, that this Court has jurisdiction of all the parties and subject matter of this cause, and that the material allegations contained on Petitioner's pleadings are true. . . . A jury was waived, and all matters in controversy, including questions of fact and law, were submitted to the Court. All persons entitled to citation were properly served.
The trial court [hearing a divorce] has a mandatory duty to inquire into the sufficiency of the diligence exercised in attempting to ascertain the residence or whereabouts of the defendant before granting judgment based on service by publication. Matter of Marriage of Peace, 631 S.W.2d 790, 792 (Tex.App. — Amarillo 1982, no writ).
Although a judgment following service of process on a defendant based on citation by publication is not a true default judgment, the proper procedure to test the due diligence question is by motion for new trial as prescribed by TEX.R.CIV.P. 329 (motion for new trial on judgment following citation by publication).
In those cases the court may grant a new trial upon petition of the defendant showing good cause, supported by affidavit, filed within two years after such judgment *Page 712 was signed. Rule 329 is the vehicle utilized by the defendant in Matter of Marriage of Peace, supra, to test the diligence of that divorce petitioner in ascertaining her whereabouts. A bill of review is not the proper method to test the due diligence of a petitioner relying on citation by publication under Rule 109. Instead that party defendant must, within two years, move for a new trial as provided in Rule 329.1
It is noteworthy that the majority relies upon Mullane v.Central Hanover B. T. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950) which is an appeal taken immediately from the Surrogate Court's holding overruling the ad litem attorney's objection that the statutory provisions of New York Banking Laws providing for citation by publication notice to certain beneficiaries of a trust were inadequate to afford due process under the Fourteenth Amendment. He contended the court was therefore without jurisdiction to render a final and binding decree. The holding of the Surrogate Court was affirmed by the Appellate Division of the Supreme Court and also by the New York Court of Appeals. The attorney ad litem then appealed the State decision to the United States Supreme Court. That, too, is a vastly different situation from the present bill of review appeal from a final judgment.
Peralta v. Heights Medical Center, Inc., 485 U.S. ___, 108 S.Ct. 896, 99 L.Ed.2d 75 (1988) involved a default summary judgment for money damages based on defective service of process. In that Texas bill of review case, the defendant had not been personally served with valid process. The record on its face showed void process which resulted from service effected more than 90 days after issuance of citation.See former TEX.R.CIV.P. 101 (repealed effective Jan. 1, 1988). Texas courts have held that service after the 90th day is a nullity, depriving the court of personal jurisdiction over the defendant. Peralta v.Heights Medical Center, Inc., 108 S.Ct. at 897, n. 3.
The Peralta decision simply iterates the recognized law of Texas, that it is not necessary that a party plead and prove that he was prevented from making a meritorious defense in a bill of review case when service of process is void.See, Texas Industries, Inc. v. Sanchez, 525 S.W.2d 870 (Tex. 1975); Joiner v. Vasquez, 632 S.W.2d 755, 761 (Tex.App. — Dallas 1981, no writ). The trial court would lack jurisdiction. That is not the present case since the service of process was not void. In Peralta the judgment was void. In this case the divorce judgment is not void.
As stated in Alexander v. Hagedorn, 148 Tex. 565,226 S.W.2d 996, 1002 (1950), in a bill of review case: *Page 713
The court will not set aside a judgment because it was founded on a fraudulent instrument, or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed . . . United States v. Throckmorton, 98 U.S. 61, 25 L.Ed. 93.
Rule 109 clearly makes it the duty of the original trial court (not the bill of review trial court) to consider the sufficiency of due diligence in publication cases. Moreover, lack of diligence under Rule 109 would not go to the jurisdiction of the present trial court, thereby rendering the final divorce judgment void. The matter of due diligence was before the divorce trial court and actually considered then. The court of equity in a bill of review will not retry the same issue.
Therefore, it was the appellant's task to meet the stringent requirements of a bill of review. He must allege and prove: (1) a meritorious defense to the cause of action, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. Alexander v. Hagedorn, supra 226 S.W.2d at 998. The rules are not to be relaxed merely because it may appear in some particular case that an injustice has been done. Id. Only extrinsic fraud will entitle a complainant to relief [successfully attacking a final judgment]. Id.
Thus, it having been the duty of the trial court under Rule 109 to inquire into the sufficiency of the diligence before granting the divorce in this case, such matter is clearly "intrinsic" to the judgment. Weston v. Van Meter, 297 S.W.2d 302, 307 (Tex.Civ.App. — Texarkana 1956, no writ). The matter of sufficiency of the diligence used [under Rule 109] was then squarely before the divorce court and hence clearly intrinsic to the judgment. Johnson v.Barnwell Production Co., 391 S.W.2d 776, 782 (Tex.Civ.App. — Texarkana 1965, writ ref'd n.r.e.); Hartely v.Langdon Co., 347 S.W.2d 749, 757 (Tex.Civ.App. — Houston 1961, no writ).
In the present case appellant relied upon fraud to constitute the attack on the judgment. Since the matter of due diligence was intrinsic to the divorce judgment, it should be our holding there was no probative evidence of extrinsic fraud. That requirement of the bill of review was not met.
Next, the allegation in appellant's pleadings is:
Petitioner has a meritorious defense to the above-described suit, in that Petitioner was prevented by Respondent from asserting rights to a greater share of the parties' marital estate than that awarded to Petitioner in the Decree. [The petition asserts the citation by publication was fraudulently obtained, and as a result of his lack of knowledge of the divorce suit, he was not negligent.]
Regarding a meritorious defense to the original action, appellant's affidavit in support of his petition for bill of review states:
. . . I have a meritorious defense to the property division of the court in that the final decree of divorce entered in cause number 84-CI-04007 awarded one hundred percent of the community property to Sylvia Vale Morris. Upon a trial where I can present a defense, I would expect to receive and believe I am entitled to at least some portion of the community property and I am willing to pay my fair share of the community debts.
These general allegations do not meet the requirement of a bill of review as to a meritorious defense. Nor does there appear in the record proof of a meritorious defense.2
The trial court's findings of fact are: *Page 714
(1) petitioner failed to prove a meritorious defense,(2) petitioner failed to prove actionable fraud,
(3) petitioner failed to prove lack of diligence or negligence on his part.
I agree that the trial court was correct in denying the bill of review. Therefore, I respectfully dissent.
Appellant used his brother's address in Florida. Appellee said when she attempted to contact him on the brother's telephone recording machine, there was no response. She did not know when the children spoke with their father on the telephone. The children did not testify. The brother did not testify.
She said no support checks were received. The three checks received by her and the children were reimbursement for rentals on a house. Appellant had caused the rental agency to send monies to him. The checks, appellant admitted, were his brother's checks ("J. Morris") drawn on his brother's account. He termed this a joint account, although only his brother's name appeared thereon, and his did not.
Appellee stated she asked his parents for appellant's address prior to the divorce. They told her they did not know where he was and were not accepting calls from him then.
Appellant, according to appellee, knew about the divorce in December, 1984, when his daughter visited him. The daughter required hospitalization and authorities were told the mother was responsible for the bills.
Appellee testified she told appellant about the divorce in June, 1984, when he came by the house on the way from California to Illinois. She had earlier telephoned his grandmother in Connecticut in an attempt to locate him. She stated she knew where his family lived, but she could not locate appellant through them.
The evidence was that in April, 1984, appellant did not live at the address on the brother's check. He lived elsewhere in Florida. At one time he used the address of a liquor store where he worked. Another time he lived in Oakland, Florida. He had lived a short while in Illinois and also in California as well as in Connecticut.
The trial judge asked how the result would have been different. (The wife had made house payments on the mortgage, supported the two teenage daughters, received no child support.) The judge asked, "What portion [of the community property] would you be entitled to?" Appellant stated he believed "anyone is entitled to some percentage of community property after a marriage of some 18 years."