Opinions, October 1, 2015

The Fourteenth Court of Appeals released its published opinion in In re Martinez, No. 14-15-00429-CV, conditionally granting Relator Alba Martinez’s petition for writ of mandamus.

In March 2013 Milco Ivan Melgar filed a petition for divorce from Alba Martinez.  Ivan and Alba are from Honduras and their grasp of the English language, according to the Court of Appeals, is not expert. The case was DWOP’ed on November 18, 2013 by a visiting judge. Ivan moved to reinstate. The visiting judge heard the case on December 11, 2013–before it was reinstated. On December 17, 2013, twenty-nine days after signing the dismissal order, Judge Johnson signed a divorce decree which awarded the home to Alba. That same day, the trial court also signed an order reinstating the case. The next year, in September 2014, Ivan filed a petition to set aside the decree and requested the court modify the decree to award the home to him.

Alba filed a motion to enforce the decree by contempt, alleging Ivan refused to leave the home and had obstructed her efforts to take ownership of it. At the hearing on Alba’s motion for enforcement, Ivan’s attorney argued the decree stated that the case was heard on December 11, 2013, before the case was reinstated. The trial court requested briefing.

At the second hearing, the trial court found, based on the testimony, that the parties did not understand the decree at the time of prove up and that because no interpreter was present, the parties were not capable of providing any evidence to support a just and right division. The trial court signed an order on March 9, 2015 declaring the decree void. Ivan’s amended petition and request to modify were not ruled upon. Alba brought an original proceeding to set aside the March 9 order.

Long story short, the trial court’s March 9 order was declared void by the Court of Appeals because the trial court lacked plenary power in March 2015, fourteen months after the decree was signed. The order was not in the nature of a nunc pro tunc because there was far more than a clerical error at issue and none of the bases for a collateral attack on a judgment (lack of subject matter jurisdiction, lack of service, etc.) were present.

Tellingly, the Court of Appeals did plant a signpost with a footnote: “Our ruling today in no way prevents any party from seeking to set aside the Divorce Decree through an independent bill-of-review proceeding.”


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