### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03 - 19 - 00828 - CV
Luis Alberto Vences, Appellant

v. Marissa Garcia Robledo, Evangelina Robledo, Andrew Emerito Costilla,

James Stephen Sustaita, and Mary Prado, Appellee s

FROM THE 201ST DISTRICT C O URT OF TRAVIS COUNTY NO. D - 1 - GN - 19 - 001566, THE HONORABLE AMY CLARK MEACHUM, JUDGE PRESIDING
M E M O R A N D U M O P I N I O N
L uis Alberto Vences appeals f rom the denial of the petition for bill of review he filed to challenge a 2009 order awarding ch ild support to Marissa Garcia Robledo . We will affirm the denial.
BACKGROUND

In 2008, Robledo filed a n original petition in a suit affecting the parent

- child relati onship. Her petition sought, in ter alia, an award of child support from Vences. Robled o
a ppeared at the he a ring on the matter in 2009
. Vences did not. The court appointed an attorney ad litem to r epresent Vences ’ s interests and ultimately ordered Vences to pay $59 5.53 per month in child support and $16.105.01 in retroactive child support

. V ences did not comply with the terms of the order, and the Att o rney G enera l filed a motion to enforce in 2016 . In response,2

Vences filed a petition for bill of review alleging that he w as never served with the petition in the suit affecting the parent

- c hil d relationship and that the 2009 child

- support order is there f ore “void o r voidable. ” After holding a hearing, the district court denied the petiti on for bill of review and, on Vences ’ s request, issued findings of fact and con clusions of law in support
. Vences t hen perfected this appeal.
DISCUSSION

A bill of revie w is an equitable proce ed ing brought by a party seeking to set aside a prior jud gment or order that is no longer sub ject to challenge by a motion for new trial or appeal. See Katy Venture, Lt d. v. Cremona Bistro Corp. , 469 S.W.3d 160, 163 (Tex. 2015) (per curiam); Wiegrefe v. W

ie grefe , No . 0 3

- 16

- 00665

- CV, 2017 WL 3908645, at *2 (Tex. App.

— Aus tin Aug. 29, 2017, no pet.) (mem. op.). “[T]o be successful upon a bill of review, the complainant mus t a llege and prove: (1) a meritorious defense to the cause of ac t ion alleged to support t he judgme nt, (2) which he was prevented from making by the fr aud, accident or wrongful a ct of the opposite party . . . (3) unmixed with any fault or negligence of his own .” Arndt v. Arndt , 714 S.W.2d 86, 87

– 88 (Tex. App.

— Houston [ 1 4th Dist.] 1986, no writ ). That sai d , a plaintiff demonstrating deficient service is relieved of the obligation to prove the first two elements because a judgment rendered without service is co nstitutionally infirm
. Peralta v. Heights Med. C tr., Inc ., 4 8 5 U.S. 80, 84

– 85 (1988 ); Katy Ven ture , 469 S.W.3d at 164
. “We review the trial court’s ruling on a bill of review f or an abuse of discretion , ” indul ging “ every presumption in favor of that r uli ng.” Interaction , Inc. v. State , 17 S.W .3d 77 5, 778 (Tex. Ap p.
— Austin 2000, pet. denied). “A trial court abuses its discretion when it acts in an unreasonable and3

arbitrar y manner, or without refere nce to any guiding rules or principles.” Id. (citing Do wner
v. Aquamarin e Operators, Inc ., 7 01 S.W.2d 238, 2 41

– 42 (T ex. 1985)).

In this case, the district court did not abuse its discretion in denying the petition for bill of review because Vences did not timely file his petition
. A petition for bill of re vie w must generally b e filed within four ye ars of the re ndition of the disputed judgment unless the challenger can show that extrinsic fraud prevented him from participating in the proceedings that led to th at judgment
. See Tex. Civ . Prac. & Rem. Code § 1 6.0 51; Valdez v. Hol l enbeck , 465 S.W .3d 217 , 226 (Tex. 2 015); PN S Stores, Inc. v. Rivera , 379 S.W.3d 267, 275 (Tex. 2012)
. Extri nsic fraud “ occurs when a litigant has been misled by his adversary by fr aud or deception
. ” PNS Stores , 379 S.W.3d at 27 5 (cit i ng Alexander v. Hag e dorn , 226 S.W.2d 996, 1001 (Tex. 1950)). T he trial court found that no fraud had occurred and t herefore acted in accordan ce with governing principles in denying the petition for bill of review.

Vences disagrees, insisting that “ failu re of the actual ser v ice was the result of extrinsi c fraud on th e behalf of the mother and her family system ” and part of a “ conspiracy to deprive Plaintiff Father Luis Vences of his parental rights
. ” W e will con strue this argument as a challenge to the s uff

iciency of the ev i dence sup porting the d istrict court ’ s findi ng that no fraud occurred
. W hen reviewing a trial court ’ s decision for abuse of discretion, legal and factual sufficiency are not indepen d ent gro unds of error but are relevant in determ ining whe ther the trial
co u rt abused its discreti on. Zeifman v. Miche ls , 212 S.W.3d 582, 58 7 (Tex. App.

— Austin 2006 , pet. denied )
. We look f irst to whether t he record includes sufficien t evidence upon which the tri al court could exercise its discretion. Cobur n v . Moreland , 433 S
. W.3d 809, 823 (Tex. Ap p.
— Austin 2014 , no pe t. ) . If it does , w e then consider whether that exercise constituted abuse. Id
.4

There is no abuse of discretion if some substantive, probative e vidence supports the district court ’ s co nclusi on . Zeifman , 212 S. W .3d at 587.

The re cor d here includes suffi cient evidence for the district court to exercise its discretion and conclude that Vences ha d not met his burden to show extrinsic fraud
. Robledo testified that at the time of the proce edings in 2008 and 2009, s h e did not know where V ences lived notwithst anding her “ due diligence ” to find him. She testified that she asked the trial court to effect service of process on V ences ’ s sister, whom Robled o was able to locate , and that she provi ded an af

fidavit in suppor t of that request
. See Tex. R. Civ. P. 109 (governing service by publication ) , 109a (allowing substitute service where service by publi cation is authorized and requesting party execut es aff idavit in support of substitu te service )
. Ven ces ’ s sister testifi e d and
a ckno wledged tha t in 200 8 she often r eceived her brother ’ s mail but said she wa s not certain whether she had ever received the pe tition in question
. The recor d, however, reflects that she
acce pted service on February 27, 2 008. Ven ces testified and conceded that he essen tially lived

“ in the streets ” at the time but disputed Robledo ’ s characterization of her awareness of his whereabouts , testifying that Robledo knew how to contact him and could have done so if she had tried
. Yet t he distri ct court

— a s the “ sole arbiter ” of the evidence , see In re A.B ., 437 S.W.3d 498 , 50 3 (Tex. 2014)

— could have discredited his testimony in favor of Robledo ’ s testimony that she had made reasonable effort s to locate Vences
. On this record, w e c ann ot sa y that no su b stantive, probative ev idence supports the d istrict court ’ s conclusion that Vences failed to establish extrinsic fraud
. See O kon v. Boldon , No. 02

- 14

- 00334

- CV, 2015 WL 4652775, at *5 (Tex. App.

— Fort Worth Aug. 6, 2015 , no pet. ) (mem. o p.) ( aff irmi ng den ia l of untimely petiti on for bill of review af

ter explaining “ the trial court could have reasonably resolved conflicting5

evidenc e presented by the parties to find that no person intended to deceive appellant or prevent him from knowing ab out t he suit ” ). A s a consequence, there wa s no abuse of discret ion.
CONCLUSION Because Vences has not shown that the district court abused its discretion in denying his petition for bill of review, we affirm its denial or der. We dismiss as moot his mot ion t o con solidate t h is appea l with another cause
.

___________ _______________________________ Edward Smith , Justice Before Justices Goodw in, T riana, and Sm it h Affirmed Filed: August 27, 2020