Court of Appeals of Texas, Third District, Austin
THE 27TH DISTRICT COURT OF LAMPASAS COUNTY NO. 19654, THE
HONORABLE JOHN GAUNTT, JUDGE PRESIDING
Justices Goodwin, Baker, and Triana
MELISSA GOODWIN, JUSTICE
restricted appeal arising out of Darrick Koponen's suit
to modify the parent-child relationship, the Office of the
Attorney General (the OAG) challenges the trial court's
order (the Order) as to the judgment on child support
arrearages. The OAG complains that the trial court
convened a hearing without the OAG present and waived the
making of the reporter's record without the OAG's
consent; therefore, the OAG argues, reversal is required.
Koponen did not file a response in this Court. Agreeing with
the OAG, we reverse the Order as to the judgment on child
support arrearages and remand this cause for further
restricted appeal is a procedural device available to a party
who did not participate, either in person or through counsel,
in a hearing that resulted in a judgment against the
party." In re K.B.R., No. 07-07-00098-CV, 2008
WL 2467375, at *1 (Tex. App.-Amarillo June 20, 2008, no pet.)
(mem. op.) (citing Tex.R.App.P. 30). To prevail in a
restricted appeal, the OAG must prove that: (1) the OAG filed
notice of restricted appeal within six months after the Order
was signed; (2) the OAG was a party to the underlying
lawsuit; (3) the OAG did not participate at the hearing that
resulted in the Order and did not timely file any
post-judgment motions or requests for findings of fact and
conclusions of law; and (4) error is apparent on the face of
the record. See Tex. R. App. P. 26.1(c), 30;
Pike-Grant v. Grant, 447 S.W.3d 884, 886 (Tex. 2014)
timely filed notice of its restricted appeal within the six
month deadline following the signing of the judgment or
order. See Tex. R. App. P. 26.1(c), 30. The trial
court signed the Order on April 6, 2018. Because October
6-six months after April 6-was a Saturday, the deadline for
the notice of restricted appeal fell on Monday, October 8,
the day the OAG filed notice. See id. R. 4.1(a).
was a party to the underlying lawsuit. The OAG filed the
original petition in the suit affecting the parent-child
relationship on June 11, 2015, and the trial court signed a
final order on December 22, 2015. Koponen filed his petition
to modify the parent-child relationship on April 18, 2017.
Koponen's petition listed the OAG as an affected party-a
"Title IV-D Agency with an interest in this
case"-and certified that the OAG was served.
See Tex. Fam. Code § 156.004 (providing that
Texas Rules of Civil Procedure apply to suit for
modification); Tex.R.Civ.P. 79 ("The petition shall
state the names of the parties[.]"). The OAG,
"representing only the interests of the State of
Texas," answered with a general denial.
Order does not indicate that the OAG appeared or participated
in the hearing, although it recites that Koponen appeared but
the respondent mother did not. The Order was approved as to
form by Koponen's attorney and approved as to form and
substance by Koponen and the respondent mother, but the
signature block for the OAG is blank. Additionally, the
record does not provide any indication that the OAG received
notice of the hearing, participated in the hearing, filed any
post-judgment motions, or requested findings of fact and
conclusions of law.
error is apparent on the face of the record. Because the OAG
answered Koponen's petition to modify the parent-child
relationship, the Order is a "post-answer default"
with different rules applying than to a default judgment
following a failure to answer. See Paradigm Oil, Inc. v.
Retamco Operating, Inc., 372 S.W.3d 177, 183 (Tex.
2012). "[A] post-answer default 'constitutes neither
an abandonment of the defendant's answer nor an implied
confession of any issues thus joined by the defendant's
answer, '" and "[b]ecause the merits of the
plaintiff's claim remain at issue, judgment cannot be
rendered on the pleadings, and the plaintiff must prove its
claim." Id. (quoting Stoner v.
Thompson, 578 S.W.2d 679, 682 (Tex. 1979)). Thus,
Koponen had the burden to establish the grounds for
modification of child support by a preponderance of the
evidence. See Tex. Fam. Code § 156.401
(providing that court may modify order for support of child
by demonstrating, among other things, that circumstances of
child or person affected by order have materially and
substantially changed); Coburn v. Moreland, 433
S.W.3d 809, 829 (Tex. App.-Austin 2014, no pet.) ("The
party seeking modification has the burden to establish these
elements by a preponderance of the evidence.").
here no reporter's record was filed and we therefore
cannot evaluate the sufficiency of the evidence to support
the trial court's order as to the child support.
"[T]he face of the record consists of all papers on file
in the appeal, including the reporter's record."
Arbogust v. Graham, No. 03-17-00800-CV, 2018 WL
3150996, at *1 (Tex. App.-Austin June 28, 2018, no pet.)
(mem. op.) (citing Tex.R.App.P. 30; Norman Commc'ns
v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)).
The making of a record is required in all suits involving the
parent-child relationship unless waived by the parties with
the consent of the court. See Tex. Fam. Code §
105.003(c). Although the Order recites that "[t]he
making of a record of testimony was waived by the parties
with the consent of the Court," it is unclear how the
making of the record could have been waived as to the OAG
because the OAG was neither present nor represented by
counsel at the hearing; accordingly, the trial court erred in
consenting to the waiver of the record. See
Arbogust, 2018 WL 3150996, at *1 n.2; Wray v.
Papp, 434 S.W.3d 297, 299 (Tex. App.-San Antonio 2014,
no pet.); see also In re K.B.R., No. 07-07-00098-CV,
2008 WL 2467375, at *2 (Tex. App.-Amarillo June 20, 2008, no
pet.) (mem. op.) ("[W]here a party is neither present
nor represented by counsel at the hearing, the making of the
record cannot be waived as to the absent party and a trial
court commits error in consenting to the waiver of a
record."). The trial court's error is reversible and
constitutes error on the face of the record. See Stubbs
v. Stubbs, 685 S.W.2d 643, 646 (Tex. 1985);
Arbogust, 2018 WL 3150996, at *2; Wray, 434
S.W.3d at 299.
therefore reverse the trial court's order as to the
judgment on child support arrearages and remand this cause
for further ...