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In re J.A.M.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

August 8, 2019

IN THE INTEREST OF J.A.M. AND J.M., CHILDREN

          On appeal from the 214th District Court of Nueces County, Texas.

          Before Justices Benavides, Hinojosa, and Perkes

          MEMORANDUM OPINION

          LETICIA HINOJOSA JUSTICE.

         Appellant, the Office of the Attorney General of Texas (OAG), brings a restricted appeal from an order modifying the parent-child relationship that eliminated appellee Jose Antonio Montoya's obligation to pay child and medical support arrears to appellee Ana Lilia Castro on behalf of their minor children.[1] In two issues, which we treat as one, the OAG argues that error is apparent from the face of the record because it did not receive notice of the proceedings on Jose's motion to modify, including the filing by Jose of an agreed order which the trial court later signed. We affirm in part and reverse and remand in part.

         I. Background

         Jose, Ana, and the OAG participated in a negotiation conference on August 22, 2011, to determine Jose's child support obligations for Jose and Ana's minor child, J.A.M. On September 1, 2011, the trial court signed a child support review order reflecting the agreement of the parties, which required Jose to pay $205 in monthly child support, $113 in monthly medical support, and $931.03 in child support arrears. On March 6, 2012, following the birth of their second child, J.M., the trial court signed an order establishing the parent-child relationship and modifying Jose's support obligation. The trial court found that Jose owed $1, 791.27 in child support arrears and $453.14 in medical support arrears. It adjusted Jose's monthly child support obligation to $257. On May 29, 2014, the trial court signed an order finding that Jose owed $7, 850.82 in child support arrears and $3, 495.53 in medical support arrears.

         Jose filed a motion to modify the parent-child relationship on February 22, 2017, requesting that he be appointed the sole managing conservator of the children and that Ana pay child support. The OAG filed an intervention on June 6, 2017, asserting that it is a necessary party to the action because Jose's motion seeks to modify a support right assigned to the OAG pursuant to Chapter 231 of the Texas Family Code. See Tex. Fam. Code Ann. §§ 231.001-.309. In the filing, the OAG alleged that Jose owed $13, 885.06 in child support arrears and $8, 097.91 in medical support arrears.

         The trial court held hearings on Jose's motion on June 28, June 29, and September 22 of 2017. At the September 22 hearing, which was intended to be a final hearing, the trial court ordered Jose and Ana to mediation. The final hearing was later set for February 13, 2018, but it was cancelled. That same day, Jose and Ana attended a mediation, which resulted in a settlement agreement. The OAG did not participate in any of the hearings on Jose's motion, and it did not attend the mediation. Further, the record provides no indication that the OAG was notified of those proceedings.

         Jose filed a proposed "agreed" order modifying the parent-child relationship on April 6, 2018. The trial court signed the order on April 10, 2018 without holding a hearing. The order incorporated by reference the mediated settlement agreement, under which Jose and Ana agreed to a "finding that there shall be a judgment against [Jose] in the amount of -0- as of January 31, 2018 for any and all past due child support and medical support obligations." In its order, the trial court found that Jose owed no child support or medical support arrears as of January 31, 2018. The district clerk issued a notice of judgment on April 25, 2018, but the notice does not reflect service to the OAG. This restricted appeal ensued. See Tex. R. App. P. 26.1(c), 30.

         II. Restricted Appeal

         A. Standard of Review

         A restricted appeal is available for the limited purpose of providing a party who did not participate at trial with the opportunity to correct an erroneous judgment. Mandel v. Lewisville Indep. Sch. Dist., 445 S.W.3d 469, 474 (Tex. App.-Dallas 2014, pet. denied); In re E.K.N., 24 S.W.3d 586, 590 (Tex. App.-Fort Worth 2000, no pet.). To prevail in a restricted appeal, an appellant must show that: (1) the notice of appeal was filed within six months of the complained-of judgment; (2) the appellant was a party to the suit who did not participate in the hearing that resulted in the judgment; (3) the appellant did not timely file a post-judgment motion, request findings of fact and conclusions of law, or file a notice of appeal within the time permitted under rule 26.1(a); and (4) the complained-of error is apparent from the face of the record. Tex.R.App.P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The face of the record consists of all documents that were before the trial court when it rendered its judgment. Alexander, 134 S.W.3d at 848-49.

         B. The First Three Elements are Satisfied

         The trial court signed the subject order on April 10, 2018, and the OAG timely filed its notice of restricted appeal five months later on September 10, 2018. See Tex. R. App. P. 26.1(c), 30. The OAG was also a party to the lawsuit, and it did not participate in the proceedings resulting in the modification order. The Texas Family Code authorizes the OAG, the state's designated Title IV-D agency, to enforce, collect, and distribute child support. Office of the Attorney Gen. of Tex. v. Scholer, 403 S.W.3d 859, 862 (Tex. 2013); see Tex. Fam. Code Ann. §§ 231.001, 231.101(a)(5)-(6); see also In re Office of the Attorney Gen. of Tex., No. 13-18-00474-CV, 2018 WL 5274147, at *4 (Tex. App.-Corpus Christi-Edinburg Oct. 23, 2018, orig. proceeding) (mem. op.). When the OAG provides Title IV-D services, as it did in this case, it becomes entitled to an assignment of child support rights. See Tex. Fam. Code Ann. § 231.104; Scholer, 403 S.W.3d at 862 (discussing the limited power of assignment provided to the OAG based on applications for ...


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