Smalley v. Smalley, 436 S.W.3d 801 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Estate Administration



While married, Husband, an employee covered by the Federal Employees’ Retirement System, named Wife as the beneficiary of a savings plan and savings bonds.  Their petition of divorce awarded these assets to Husband.  Husband died without making any changes to the beneficiary designations and Wife collected these assets.  The independent executor then sought to enforce the terms of the divorce decree and reclaim these assets for the estate.  Both the trial and appellate court in an earlier case held that the divorce decree operated as a waiver of Wife’s right to claim these assets.  In addition, the court determined that federal law did not preempt the terms of the divorce decree.


Subsequently, the Supreme Court of the United States decided Hillman v. Maretta, 133 S. Ct. 1943 (2013), which held that local law voiding an ex-spouse beneficiary designation on an insurance policy governed by the Federal Employees’ Group Life Insurance Act of 1954 was preempted by federal law allowing the ex-spouse to collect the proceeds.  Wife filed a statutory bill of review along with a petition for a writ audita querela claiming that the prior decision must be set aside because of the Hillman opinion.  The executor then filed a motion to dismiss for lack of jurisdiction.  The probate court granted the motion to dismiss and Wife appealed.


The appellate court affirmed holding that the trial court properly considered the motion to dismiss because the motion challenged the court’s subject matter jurisdiction.  The court explained that a statutory bill of review under Probate Code § 31 [recodified in Estates Code § 55.251] permits the probate court to revise or correct an order that the court itself previously made.  In this case, however, Wife is trying to set aside the appellate court’s prior affirmance of the probate court’s decision.  Thus, the probate court had no jurisdiction over the bill of review.


The court also rejected Wife’s writ of audita querela for lack of jurisdiction.  The court explained that there is no authority that this common law writ is available as a remedy under Texas law to extend the probate court’s jurisdiction to an attack on a appellate court’s judgment.


Moral:  A bill of review cannot be used to modify a probate court judgment once an appellate court has issued its mandate and it is problematic whether Texas courts will recognize audita querela writs.