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Office of Attorney General of Texas v. Rivera

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

December 12, 2019

OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Appellant,
v.
SERVANDO RIVERA AND MARIA MENDOZA, Appellees.

          On appeal from the 389th District Court of Hidalgo County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes

          MEMORANDUM OPINION

          NORA L. LONGORIA Justice

         The Office of the Attorney General of Texas (OAG) brings this restricted appeal challenging an order modifying the parent-child relationship that eliminated appellee Servando Rivera's obligation to pay child and medical support arrears to appellee Maria

         Mendoza on behalf of their minor child.[1] In two issues, the OAG argues that (1) the order is void because the OAG was not served or otherwise given notice of the entry of the final order, and (2) the trial court abused its discretion in reducing the child support arrearage to zero because there was no evidence to support the reduction. We affirm in part and reverse and remand in part.

         I. Background

         In 2011, the trial court entered temporary orders in which Rivera was ordered to pay $213.00 per month in current child support and $113.00 per month in cash medical support. Mendoza was ordered "to continue coverage under a governmental medical assistance program or health plan for the child who is the subject of this suit."

         In 2014, the OAG filed a petition in intervention in the case. The trial court issued an order in suit affecting the parent-child relationship (SAPCR) in which Rivera was ordered to pay $150.00 per month in current child support and Mendoza was ordered to pay $100.00 per month in cash medical support. The order also found that as of September 30, 2014, Rivera was in child support arrears in the amount of $6, 419.83 and in medical support arrears in the amount of $3, 012.79. There was a partial release of the arrears and the trial court found that Rivera owed $4, 075.16 in child support arrears and $3, 012.79 in medical support arrears. Rivera was ordered to pay $50 per month for each of the arrearages until he became current. The trial court further ordered that "the retroactive child support and medical support are assigned to the [OAG] pursuant to Texas Family Code chapter 231."

         In 2017, Rivera filed a motion for enforcement of the 2014 order in the SAPCR, arguing that Mendoza violated a clause in the order by allowing a prohibited individual to have contact with the child. A hearing was held on Rivera's motion at which both Rivera and Mendoza appeared. After hearing testimony and evidence, the trial court found that Mendoza had violated the clause and gave Rivera primary custody of the child. The trial court instructed the parties to confer on visitation, child support, and medical support. After the parties came to an agreement, the trial court heard the agreement and entered a final judgment consistent with such agreement.

         In January 2018, the trial court rendered final judgment in which the trial court ordered the visitation as agreed upon by the parties, and ordered Mendoza to pay $220.00 per month for child support and $100.00 per month for cash medical support. Rivera was ordered to "continue coverage under a governmental medical assistance program or health plan for the child." Further, the order stated that Rivera has "neither incurred nor is he required to pay any child support arrears" or "medical support arrears." The district clerk issued a notice of judgment on January 24, 2018, but the notice does not reflect service to the OAG. This restricted appeal followed. See Tex. R. App. P. 26.1(c), 30.

         II. Restricted Appeal

         A. Standard of Review

         In order to succeed on a restricted appeal, an appellant must establish that: (1) it filed notice of the restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the hearing that resulted in the judgment complained of and did not timely file any post judgment motions or requests for findings of fact and conclusions of law; and (4) error is apparent from the face of the record. In re Marriage of Butts, 444 S.W.3d 147, 150 (Tex. App.-Houston [14th Dist.] 2014, no pet.) (citing Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004)); see Tex. R. App. P. 30 ("A party who did not participate-either in person or through counsel-in the hearing that resulted in the judgment complained of and who did not timely file a post judgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Texas Rule of Appellate Procedure 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c).").

         B. First ...


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