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