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In re Marriage of Ham

A person who knew or by the exercise of ordinary prudence could have known of a judgment in time to have invoked a legal remedy, but negligently failed to do so, will not have judgment set aside on a bill of review; an incompetent defendant cannot be negligent.

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Justice Grant

OPINION

Theresa K. Saxon, formerly Theresa K. Ham, appeals the trial court’s summary judgment of her Bill of Review seeking to set aside the divorce decree dissolving her marriage to Howard S. Ham. Saxon contends that the trial court erred in granting Ham’s Motion for Summary Judgment and in finding that the pleadings lacked one of the essential elements and proof necessary to present a proper Bill of Review. Saxon also raises the issue of whether the lack of either service of process or waiver in the underlying divorce proceeding deprived Saxon of due process and fair notice of the divorce proceeding, thus constituting fundamental error. Because the order dispensing with the Bill of Review did not address whether Saxon’s signature on the agreed judgment constituted an appearance and because the answer depends on factual determinations, this court will not review this final point of error.

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