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In re J.M.M.

Court of Appeals of Texas, Eighth District, El Paso

April 25, 2018


          Appeal from the 383rd District Court of El Paso County, Texas (TC# 2015DCM1143)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.



         Appellant J.J.[1] filed a restricted appeal pro se challenging the trial court's post-answer default judgment in a suit affecting the parent-child relationship. In two issues, J.J. challenges orders pertaining to visitation rights and child support. Because no error is apparent from the face of the record, we affirm.


         On February 20, 2015, pursuant to Texas Family Code Chapter 231, the Office of the Attorney General of Texas representing the State of Texas, filed a petition to establish the parent-child relationship of J.M.M., the child subject of the suit, who was then residing with her mother, M.M. See generally Tex. Fam. Code Ann. Ch. 231 (West 2014). The State alleged the parents of the child were separated and that J.J. was the father. The State requested the court appoint appropriate conservators for the child and issue child support orders.

         On May 7, 2015, M.M. filed a counter-petition seeking appointment as a joint managing conservator of the child with the exclusive right to designate the child's primary residence, court-ordered child support, temporary orders, and attorney's fees, among other relief requested. On July 1, 2015, J.J. and M.M., by and through their attorneys of record, filed a pre-trial report identifying conservatorship, access and possession, and child support, among other issues that were contested in the case. J.J. later filed a first amended answer and counter-petition on November 23, 2015. In his counterpetition, J.J. acknowledged his paternity, and on that basis, asserted his standing to bring his own claims for relief. Among his requests, J.J. sought appointment as a joint managing conservator, a restriction on the child's residence to El Paso County, possession and access as per the standard possession order (SPO), and attorney's fees and other expenses. After a few months, J.J.'s attorney filed a motion to withdraw as counsel and the court granted the motion on April 15, 2016.

         On May 4, 2016, the trial court held a final hearing in the suit affecting the parent-child relationship attended by M.M. and the State, who were both represented by their attorneys of record. J.J., however, failed to appear and did not respond when the bailiff called his name three times. At the hearing, M.M. testified in support of her claims for relief as follows: that she worked as a parole officer; that she provided support, health insurance, and full-time care of J.M.M; that she and J.J. were parents of J.M.M.; and, that J.M.M. was eighteen months old at the time of the hearing. Additionally, she described that J.J. did not visit J.M.M. or attempt to have any contact with the child, and when he was represented by counsel, his attorney had requested that her attorney speak with her about terminating his parental rights. M.M. asked that she be named sole managing conservator of the child and that J.J.'s access be suspended until he presented himself to the court. She testified she believed both requests were appropriate and in J.M.M.'s best interests. She also requested child support payments and testified that J.J.'s subpoenaed records established his employment as a real estate agent earning over $73, 000 per year who also received other significant commissions through his employment. M.M. testified that J.J. had not paid any child support since J.M.M.'s birth, that she was responsible for J.M.M.'s medical expenses, and that $1, 200 per month in child support payments would be fair and reasonable and in J.M.M.'s best interests. In its default order rendered after the hearing, the trial court found that J.J. was duly notified of the hearing and did not appear. The trial court's order found that J.J. was the biological father of J.M.M. and established their parent-child relationship. After finding it was not in the best interest of the child to appoint both parents as joint managing conservators, the trial court appointed M.M. as managing conservator with the exclusive right to determine the child's primary residence without regard to geographic location, and appointed J.J. as a possessory conservator. For possession and access, the trial court ordered "no visitation." Regarding child support, the trial court found that J.J.'s net monthly resources were $6, 870.70, and ordered J.J. to pay $1, 200 in current child support each month, representing 17.5 percent of his monthly net resources, beginning May 1, 2016, and continuing each month thereafter until the earliest of one of the events specified in the order subject to other provisions. The trial court additionally found that retroactive child support should be ordered for the period between November 1, 2014 and April 30, 2016, and entered a judgment against J.J. in the amount of $21, 600, with interest at 6 percent per annum, and assigned said judgment in favor of the Office of the Attorney General, for collection and distribution according to law.

         On May 16, 2016, J.J. timely filed this restricted appeal.


         In two issues, J.J. contends that the trial court erred by (1) failing to "hear out critical evidence to determine visitation rights;" and (2) by failing to calculate the child support based on his tax returns. We construe these arguments as challenging the legal and factual sufficiency of the evidence in support of the visitation and child support orders included in the default judgment. See Tex.R.App.P. 38.1(f).

         Standard of Review

         A direct attack on a judgment by restricted appeal must: (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of the record. Tex.R.App. P. 26.1(c), 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997); see In re C.A.G., No. 04-12-00129-CV, 2012 WL 5451801, at *1 (Tex. App.-San Antonio Nov. 7, 2012, no pet.) (mem. op.). The parties do not dispute that J.J. satisfies the first three elements required of a restricted appeal. The disputed element is whether there is trial court error apparent from the face of the record.


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