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Click here for the full text of this decision FACTS:Appellant, Lynda Pearl Boaz, challenges the trial court’s rendition of summary judgment in favor of appellee, Gene Boaz, in her bill of review proceeding to set aside a final divorce decree. HOLDING:Affirmed. To be entitled to a bill of review, a petitioner must ordinarily allege and prove: 1. that she has a meritorious defense to the underlying cause of action, 2. that she was prevented from making by fraud, accident, or wrongful act of the opposite party or official mistake, 3. and which was unmixed with any fault or negligence of her own. Only extrinsic fraud will entitle one to relief through a bill of review. Intrinsic fraud, which relates to the merits of the issues which were presented and resolved, or could have been resolved, in the former action will not support a bill of review because each party must guard against adverse findings on issues directly presented. Before their marriage, Gene owned a majority of the stock in Civil Mechanical Inc., an industrial construction company that he had founded in March 1981. Lynda had the opportunity to, and apparently did, investigate the value of CMI in connection with the divorce settlement. Thus, even if Gene intentionally perjured himself on his inventory regarding the known value of CMI, that perjury would not constitute extrinsic fraud. Lynda’s claim also fails with respect to assets that she contends were excluded from the inventory. Even if Gene was required to list these assets in his inventory as Lynda contends, “perjured testimony or testimony withheld, which would have a bearing on an issue in the trial, is not a sufficient basis for setting aside a final judgment on bill of review.” Lynda cites Montgomery v. Kennedy, 669 S.W.2d 309 (Tex. 1984), for the proposition that concealment of a material fact by a fiduciary charged with the duty of full disclosure is extrinsic fraud. In Montgomery, the Texas Supreme Court held that a trustee had committed extrinsic fraud when he concealed trust assets in order to prevent their inclusion in an agreed judgment involving the beneficiary. Adverse parties who have retained professional counsel, including husbands and wives in a suit for divorce, do not owe fiduciary duties to one another. In addition, Montgomery made clear that “when the allegedly fraudulent act constitutes an issue in the action in which the judgment was rendered, the fraud is intrinsic.” Lynda also argues that Gene committed extrinsic fraud on her community interest because he “intentionally concealed the true nature of assets divided in the divorce, and intentionally misclassified these assets as his own separate property.” Lynda has brought forward no evidence of extrinsic fraud showing that Gene prevented Lynda from presenting her case at the time of the divorce proceedings. OPINION:Jennings, J.; Nuchia, Jennings and Higley, J.J.

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