Opinion
NO. 01-16-00721-CV
10-24-2017
CHARLES PERRIDON, Appellant v. EVELYN PERRIDON, Appellee
On Appeal from the 309th District Court Harris County, Texas
Trial Court Case No. 2013-72110
MEMORANDUM OPINION
Appellant, Charles Perridon, appeals from the trial court's final decree of divorce rendered in divorce proceedings between himself and appellee, Evelyn Perridon. In his sole issue, Charles asserts that the trial court erred in granting a bill of review filed by Charles himself and setting aside a prior decree on that basis. Because we conclude that Charles failed to present an adequate record to support his assertions and his complaints regarding the trial court's grant of the bill of review are barred by the invited error doctrine, we affirm.
Background
The petition for the underlying divorce was filed by Evelyn on December 2, 2013. The trial court tried the case on November 13, 2014, and on December 22, 2014, it signed a divorce decree declaring the parties divorced and dividing the community estate.
On January 7, 2015, Evelyn moved for clarification of the trial court's order regarding when and how the parties were to take possession of the property awarded in the decree. Evelyn also moved for a "Judgment Nunc Pro Tunc" to correct an alleged clerical error in a description of a portion of the property division.
On January 9, 2015, Charles moved for a new trial, asserting that the trial court erred "when it allowed [Evelyn's] counsel to proceed with the hearing for Entry of the Order, without Respondent or Respondent's Counsel's approval while Respondent's counsel was unavailable and in trial in another county."
On March 26, 2015, the trial court signed the Final Decree of Divorce Nunc Pro Tunc. However, less than two weeks later, on April 9, 2015, the trial court signed an order under a different trial court cause number granting a new trial in the underlying case here, stating:
After considering Charles Perridon's Petition for Bill of Review in Cause No 2015-15118, the response, the pleadings, and arguments of counsel, the court: ORDERS the Order in Cause No 2013-72110 signed and rendered by the Court on December 22, 2014 hereby SET ASIDE and GRANTS a new trial, as to the allegations pled in the Petition for Bill of Review in Cause No 2015-15118, in the interest of justice and fairness.However, the record does not contain the petition for a bill of review, a reporter's record of any hearing on the petition, or any other evidence relevant to the petition.
Charles asserted in his brief that he "has requested that the Clerk's record be supplemented to include a copy of the relevant Bill of Review, and explained that it "was mistakenly left out of the Clerk's record because, per the Texas Rules of Civil Procedure, it was filed under a different cause number despite its association with this cause that is on appeal." However, no supplemental clerk's record was ever filed in this case, and the record does not contain the petition for bill of review.
The trial court signed another final decree of divorce on November 10, 2015, based on essentially the same evidence that was presented at the November 2014 trial. Evelyn then moved for a new trial, asserting among other grounds that the evidence was insufficient to support the trial court's division of the marital property. The trial court again granted a new trial on February 23, 2016. The trial court held another trial in March 2016, and it signed a third final decree of divorce on June 17, 2016. Charles moved for a new trial, but the record indicates that the trial court never ruled on this motion. This appeal followed.
Analysis
Charles argues that the trial court erred in setting aside the December 22, 2014 final decree, asserting that the "[m]ovant failed to prove the elements necessary to support granting a Bill of Review" and, thus, that the trial court "erred when it signed the order setting aside its order rendered on December 22[,] 2014."
A bill of review is an equitable proceeding brought by a party seeking to set aside a prior judgment that is no longer subject to challenge by a motion for new trial or appeal. See Frost Nat'l Bank v. Fernandez, 315 S.W.3d 494, 504 (Tex. 2010) (discussing nature of bill of review); Caldwell v. Barnes, 154 S.W.3d 93, 96 (Tex. 2004) (per curiam). A bill-of-review plaintiff must plead and prove (1) a meritorious defense to the underlying cause of action, (2) which the plaintiff was unable to present due to the fraud, accident or wrongful act of the opposite party or official mistake, (3) unmixed with any fault or negligence of his own. Caldwell, 154 S.W.3d at 96. We review a trial court's ruling on a petition for a bill of review for an abuse of discretion, indulging every presumption in favor of that court's ruling. Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.).
The appellant bears the burden to bring forward on appeal a sufficient record to show the error committed by the trial court. Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.)); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) ("The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal."). In the absence of a record containing the relevant evidence considered by the trial court in making its ruling, "[w]e indulge every presumption in favor of the trial court's findings." See Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998); Willms v. Am. Tire Co., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet. denied) ("[W]hen an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order."); see also Huston, 434 S.W.3d at 636 (holding that appellant's failure to obtain reporter's record containing ruling challenged on appeal made it impossible for appellate court to determine that trial court abused its discretion in making ruling).
Here, although the record contains the trial court's ruling granting the petition for bill of review, setting aside the prior divorce decree, and granting a new trial, Charles has failed to provide a record containing the challenged petition for bill of review or any relevant evidence adduced in support of that petition. Accordingly, we must presume that the evidence supported the trial court's ruling; and we cannot say, based on this appellate record, that the trial court abused its discretion. See Bryant, 972 S.W.2d at 31; Willms, 190 S.W.3d at 806; see also Huston, 434 S.W.3d at 636 (holding, due to inadequate record, that appellant failed to preserve complaint).
Furthermore, under the "invited error doctrine," a party is estopped from challenging a trial court's ruling if the complaining party requested the specific action that the trial court took. See Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex. 2005) ("[A] party cannot complain on appeal that the trial court took a specific action that the complaining party requested, a doctrine commonly referred to as 'the invited error' doctrine."). The April 9, 2015 order of the trial court indicates that its ruling setting aside the previous divorce decree was based on its granting of Charles's own petition for a bill of review. Charles cannot now complain that the trial court gave him what he asked for. See, e.g., In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 646 (Tex. 2009) (holding that invited error doctrine applies when "a party requests the court to make a specific ruling, then complains of that ruling on appeal") (citing Tittizer, 171 S.W.3d at 862).
We overrule Charles's sole issue on appeal.
Conclusion
We affirm the trial court's final decree of divorce.
Evelyn V. Keyes
Justice Panel consists of Chief Justice Radack and Justices Jennings and Keyes.