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Civil Litigation No. 11-02-00256-CV, 5/22/2003. Click here for the full text of this decision FACTS: In July 2001, Dennis Reno, the appellee, filed a petition for bill of review seeking relief from a judicial determination in a 1987 divorce that he and Charlotte Martindale were the parents of T.M.R. While some issues in the divorce were contested, paternity was not. Martindale filed a motion for summary judgment alleging, among other things, that Reno had not established the essential elements necessary for relief by bill of review. The trial court denied the motion for summary judgment, held a hearing on the petition for bill of review, granted the bill of review and entered an order in favor of Reno. In an order entered following the hearing on the bill of review, the trial court amended the prior divorce decree to reflect that Reno was not the father of T.M.R. The trial court also terminated orders regarding future child support and eliminated any arrearage in child support payments. The trial court denied further relief sought by Reno for recovery of all prior child support paid, prejudgment interest, postjudgment interest, and attorney’s fees. HOLDING: Reversed and rendered. The issue to be determined in this appeal involves the propriety of bill of review proceedings instituted in connection with paternity issues which a trial court had decided many years ago in a divorce action. The court points out that the question is a procedural one which does not involve the validity or propriety of paternity testing. The sole question is whether Reno met the requirements necessary for Reno to establish that he was entitled to relief by bill of review. Finality in judgments is important, and the grounds for setting aside a final judgment are limited. Ince v. Ince,58 S.W.3d 187 (Tex.App. – Waco 2001, no pet’n). Before a party to a final judgment may attack that judgment after the time for appeal has passed, that party must allege and prove 1. a meritorious defense to the cause of action alleged to support the judgment; 2. which the petitioner was prevented from making by fraud, accident, or wrongful act of the opposite party; 3. unmixed with any fault or negligence of the petitioner. Tice v. City of Pasadena, 767 S.W.2d 700 (Tex.1989)(orig. proceeding). The fraud which must be established is extrinsic as opposed to intrinsic; only extrinsic fraud will support the granting of relief pursuant to a bill of review. Alexander v. Hagedorn, 226 S.W.2d 996 (Tex.1950). Included in intrinsic fraud are fraudulent instruments, perjured testimony or any matter which was actually presented to and considered by the trial court in rendering the judgment assailed. It is particularly well established that the alleged perjury of a witness on a contested issue, which the opposing party had the opportunity to refute, is intrinsic fraud. In this case, the fraud which has been alleged by Reno is not extrinsic fraud. As this court said in Wise v. Fryar, 49 S.W.3d 450 (Tex.App. – Eastland 2001, pet’n den’d), cert. den’d, 534 U.S. 1079 (2002): “These are allegations of intrinsic fraud concerning an issue that was admitted, uncontested, and settled in the divorce proceeding: parentage of the [child] born of the marriage.” Subsequent to the court’s decision in Wise, the Waco Court of Appeals had the occasion to examine the question. In Ince v. Ince, Mr. Ince filed a petition for bill of review after learning of DNA test results which excluded him as the father of the child involved in that proceeding. In the petition for bill of review, Mr. Ince sought to disestablish his paternity of the child and to vacate support orders. Much the same as Reno here has done, Mr. Ince claimed that Mrs. Ince’s fraudulent concealment of the truth about the actual biological father of the child prevented him from contesting paternity in the original action and, further, that he had no idea at the time of the divorce that he had any reason to contest the paternity issue. The Waco court disagreed with Mr. Ince. Because the fraud alleged by Reno was not extrinsic fraud, the trial court erred when it granted a hearing on the petition for bill of review and when it granted the relief on the bill of review. OPINION: Wright, J.; Arnot, C.J., and Wright and McCall, JJ.

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