Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg
IN THE INTEREST OF J.A.M. AND J.M., CHILDREN
appeal from the 214th District Court of Nueces County, Texas.
Justices Benavides, Hinojosa, and Perkes
LETICIA HINOJOSA JUSTICE.
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. 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.
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.
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
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.
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.
Standard of Review
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
The First Three Elements are Satisfied
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