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In re M.N.H.

Court of Appeals of Texas, Seventh District, Amarillo

June 14, 2019

IN THE INTEREST OF M.N.H. AND A.N.H., MINOR CHILDREN

          On Appeal from the County Court at Law No. 3 Lubbock County, Texas Trial Court No. 2010-552, 571, Honorable Ann-Marie Carruth, Presiding

          Before QUINN, C.J., and CAMPBELL and PARKER, JJ.

          MEMORANDUM OPINION

          JAMES T. CAMPBELL JUSTICE

         Appellant Johnny Julian Herrera, a Texas prison inmate appearing pro se and in forma pauperis, filed a suit affecting the parent-child relationship, seeking reduction of his child support obligation. Respondent in the trial court, Michelle Lee Gray, was not served with process and made no appearance there or in this court.[1] After the trial court dismissed Herrera's suit for want of prosecution Herrera appealed, assigning two issues. We will overrule both issues and affirm the trial court's dismissal order.

         Background

         The record demonstrates that Herrera and Gray are the parents and joint managing conservators of two children. Gray holds the exclusive right to designate the children's primary residence in "Lubbock or any contiguous county." Herrera is obligated to pay child support.

         In a motion filed September 5, 2017, Herrera requested the trial court to modify a child support order signed June 4, 2010. He sought reduction of the amount of his support obligation with retroactive application of the modification. The motion named Gray as respondent but did not contain an address for service of citation. Along with the motion, Herrera filed an affidavit asserting his indigence.

         The next case activity shown by the record was a document signed by the trial court on January 22, 2018, entitled "Notice of Intent to Dismiss-No Service of Citation." The notice explained the case was eligible for dismissal for want of prosecution because of the lack of service and it would "be set for a Dismissal Docket, unless one of the following actions is taken within 30 days of this notice: 1. Service by citation is obtained[;] 2. A waiver of citation/service is filed; or 3. An order granting a verified motion to retain is obtained." Herrera responded on February 19 by filing an unverified motion to retain asserting it was the district clerk's duty to issue citation.

         By order signed April 13, the trial court set a dismissal hearing for May 25 to consider Herrera's failure to respond to its January 22 notice. On May 8, Herrera filed a "2nd Motion to Retain." While supported by an unsworn declaration, it did not contain an address for Gray. The record provides no indication a hearing was conducted on May 25.

         On June 21 the trial court signed an order setting a hearing for July 27 to consider dismissal for want of prosecution of Herrera's case. According to the order, the proposed ground for dismissal was Herrera's failure to respond to its January 22 notice. In a finding of fact, the court stated Herrera did not appear for the July 27 hearing. The record does not contain a reporter's record from the hearing.

         On July 30, the district clerk file-marked Herrera's "1st Amended Petition to Modify Child Support" which stated Gray's residence was "unknown" and she should be served by publication. Tex. Fam. Code Ann. § 102.010 (West 2019). In an affidavit filed at the same time, Herrera stated Gray was a "transient person." Also file marked on July 30 was Herrera's motion to appear at the July 27 hearing by telephone or other means. In the motion, Herrera stated that while his personal appearance at the hearing was unnecessary he should be permitted to appear by telephone. The record does not contain a signed written order ruling on Herrera's request to appear by telephone or other means.

         On September 10, the court signed an order dismissing Herrera's case for want of prosecution. According to the order, Herrera "failed to comply with the notice" and "failed to remedy the issue at the dismissal hearing[.]" On Herrera's request, the court filed findings of fact and conclusions of law. Herrera did not file a motion to reinstate. Tex.R.Civ.P. 165a(3). This appeal followed.

         Analysis

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