Texas Divorce Attorney Blog
In a recent Texas divorce case, the plaintiff appealed from a trial court order related to property division in a divorce. The case arose when a couple signed a mediated settlement agreement that indicated a particular brokerage account would be awarded to the wife. The husband’s attorney drafted the divorce decree, and both parties signed it. Both parties had the opportunity to review the decree and signed it freely. The final divorce decree awarded the brokerage account to the husband, but it otherwise matched the mediated settlement agreement.
The husband’s attorney proved up the divorce, and the decree was signed by the lower court. The wife’s attorney asked the husband’s attorney for the file-stamped copy of the final decree, but it wasn’t provided.
After the expiration of the court’s plenary power, the wife went to the courthouse and procured a copy of the decree. She realized that it awarded the brokerage account to her ex-husband. When the ex-husband refused to agree that the account was hers, she filed a petition for a bill of review.
The lower court found the final divorce decree was void and signed a revised final decree that gave her the brokerage account. The husband appealed.
When requesting a bill of review, a plaintiff needs to prove: (1) a meritorious reason for appeal, (2) that she was stopped from making due to a wrongful act, official mistake, accident, or fraud, (3) and for which she had no fault or negligence. The wife in this case stated that the award of the brokerage account was clearly a drafting error, but she also argued in the alternative that the husband acted fraudulently, since the final decree didn’t match the mediated settlement agreement.
The trial court found the error was a mutual drafting error, but the wife had been stopped from timely filing a motion for a new trial because she hadn’t gotten the final divorce decree, as required by custom and practice.
In this case, the appellate court found that the husband’s attorney had made two errors, both by mistakenly drafting the final decree to award the husband the brokerage account and also by not delivering the copy requested to the wife’s attorney. However, the appellate court concluded that the wife or her attorney had contributed negligence or fault to the errors. The wife had signed the final divorce decree. Her attorney also signed it, and the decree had included a merger clause specifying that if there were differences between the divorce decree and the mediated settlement agreement, the final decree would control. Moreover, the wife or her attorney could have gotten a copy of the final decree earlier, once it was signed.
The appellate court determined that as a matter of law, the assignment of the brokerage account couldn’t be treated as extrinsic fraud. Therefore, it held that the trial court had abused its discretion in granting her petition for a bill of review. The husband’s issues were sustained, and the trial court’s order was reversed.
If you need to get a divorce, contact the Texas attorneys at the McClure Law Group at 214.692.8200.
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