James Allen Pelloat v. Katherine McKay Bolenbaucher
09-17-00415-CV
| Tex. App. | Dec 11, 2017Background
- Appellant James Allen Pelloat challenges a 2011 Final Decree of Divorce (signed April 25, 2011) and three subsequent nunc pro tunc amended decrees, arguing they were signed and altered without proper service or notice.
- Appellant asserts he was deprived of discovery, denied appointed counsel after being rendered indigent by an ex parte July 1, 2009 proceeding, forced to wear jail attire and shackles at trial, and otherwise prevented from fully litigating.
- The trial resulted in (per appellant) a disproportionate property division (75% to appellee), awards of compensatory and exemplary damages, and a QDRO allocating a portion of appellant’s teacher retirement to appellee.
- Appellant alleges multiple procedural defects: lack of certificates of service on the nunc pro tunc orders, ex parte communications between trial judge and appellee’s counsel, failures of the clerk to notify parties when judgments were signed, and denial of meaningful notice for phone hearings.
- Appellant filed motions for new trial and multiple bills of review; the bill(s) of review were denied (procedural history shows denial May 12, 2016 and denial after hearing August 3, 2017).
Issues
| Issue | Plaintiff's Argument (Pelloat) | Defendant's Argument (Bollenbaucher) | Held |
|---|---|---|---|
| 1. Validity of Final Decree and nunc pro tunc orders (service/notice) | Orders are void for lack of certificate of service and clerk notice; Rule 124/306 require service; failure renders judgments void. | Orders were properly entered and/or cured; nunc pro tunc corrected clerical matters. | Trial court entered decree and subsequent nunc pro tuncs; appellant alleges voidness; bill of review denied by trial court. |
| 2. Extrinsic fraud and ex parte communications | Counsel and judge conducted ex parte contacts and concealed proceedings; discovery ignored, depriving appellant of ability to litigate — grounds for bill of review under Tex. Civ. Prac. & Rem. Code art. 16.051. | Appellee denies fraud; contends procedures and service were adequate. | Appellant’s bill of review was denied; trial court did not set aside decree. |
| 3. QDRO valuation / Taggart formula (retirement division) | QDRO improperly used divorce date (or extended years) rather than retirement valuation date per Taggart; increased appellee’s share; change altered property division post-decree. | QDRO (as amended) was necessary to comply with retirement system requirements and reflects proper apportionment. | Trial court signed QDRO over appellant’s objections; appellant challenges correctness on appeal/bill of review. |
| 4. Due process — courtroom procedures, counsel, and evidence rulings | Appellant was denied appointed counsel, forced to appear in jail clothing and shackles without findings, deprived of evidence, and exposed to inflammatory argument; these violated 14th Amendment and resulted in unfair trial. | Court and opposing counsel acted within discretion; security and evidentiary rulings were proper. | Appellant raised these claims in motions and bill(s) of review; trial court denied relief. |
Key Cases Cited
- Taggart v. Taggart, 552 S.W.2d 423 (Tex. 1977) (formula for dividing matured retirement benefits based on years married under retirement plan)
- Caldwell v. Barnes, 975 S.W.2d 535 (Tex. 1998) (requirement that the record of service comply with rules; lack of service can void a judgment)
- In re E.R., 385 S.W.3d 552 (Tex. 2012) (standards for relief and post-judgment proceedings in family law context)
- Browning v. Prostok, 163 S.W.3d 336 (Tex. 2005) (judgment and nunc pro tunc; standards for correcting clerical errors)
- Berry v. Berry, 647 S.W.2d 945 (Tex. 1983) (characterization of property and effect of inception of title on separate property claims)