Hathcox, In re
| Decision Date | 29 September 1998 |
| Docket Number | No. 06-97-00138-CV,06-97-00138-CV |
| Citation | 981 S.W.2d 422 |
| Parties | In the Interest of Jarred Ishmael HATHCOX, A Minor Child. |
| Court | Texas Court of Appeals |
Ebb B. Mobley, Attorney at Law, Longview, VaLinda Hathcox, Attorney at Law, Sulphur Springs, for appellant.
W.T. Allison, II, Attorney at Law, Sulphur Springs, for appellee.
Before CORNELIUS, C.J., and GRANT and ROSS, JJ.
This case addresses the proper application of the notice and hearing provisions of the Texas Family Code and the Texas Rules of Civil Procedure to an amended motion for enforcement of a child support order where a new claim, for name change of a child, has been added to the motion. The appellant, Bill Hathcox, argues that he was denied due process of law at a July 3, 1997, hearing when the court, in his absence, determined and reduced to judgment his child support arrearage, awarded attorney's fees against him, and also changed his minor son's surname to "Pickett." He contends that he was not required to attend the July 3 hearing even though he had been served with a notice of that hearing. He makes this contention because, at the time he was served with that notice, he was also served with a citation that entitled him to answer Sandra Pickett's amended motion for enforcement on the Monday following twenty days after the date of service, which was July 14, 1997. When Hathcox did not appear for the July 3 hearing, the court pronounced a default judgment in favor of Pickett. This judgment, however, was not signed until after Hathcox had answered the amended motion.
Hathcox appeals, contending that the trial court abused its discretion in failing to grant his motion for new trial on the issues of (1) child support arrearage and attorney's fees, and (2) change of his minor son's surname. Because this Court holds that the trial court's judgment is void as a matter of law, it is unnecessary to address Hathcox's points alleging abuse of discretion.
Hathcox and Pickett divorced in October 1986, and the court ordered Hathcox to pay child support. In February 1989, Pickett filed a petition to terminate the parent-child relationship, as well as motions for contempt, to reduce child support to judgment, and for a temporary restraining order. On February 17, 1989, Hathcox filed a general denial, and the parties eventually signed agreed temporary orders in which Hathcox was to cease visitation with his minor son until further order of the court.
Eight years later, on April 16, 1997, Pickett filed an amended motion for enforcement of child support order which sought: (1) to hold Hathcox in contempt of court; (2) confirmation of all child support arrearage and rendition of judgment, plus interest on the arrearage, attorney's fees, and costs; (3) income withholding; and (4) a name change of the child.
On June 17, 1997, 1 Hathcox was personally served with a copy of the amended motion, the court's notice setting hearing for July 3, 1997, and a citation, stating in part as follows:
You are hereby commanded to appear before the Honorable Judicial District Court of Hopkins County, Texas, to be held at the courthouse of said County in the City of Sulphur Springs, Hopkins County, Texas, by filing a written answer to the petition of plaintiff ____ at or 10 o'clock A.M. (sic) of the Monday next after the expiration of 20 days after the date of service hereof, a copy of which accompanies this citation,....
NOTICE TO DEFENDANT: You have been sued. You may employ an attorney. If you or your attorney do not file a written answer with the clerk who issued this citation by 10:00 A.M. on the Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you. (Emphasis added.)
On July 3, 1997, the court held a hearing on the amended motion and orally rendered a default judgment when Hathcox failed to appear. On July 10, 1997, Hathcox filed a handwritten document styled "Respondent's Original Answer" in response to Pickett's amended motion for enforcement. On August 14, 1997, the court signed its judgment for child support arrearage, order for withholding from earnings for child support, and name change of child, in accordance with its oral rendition on July 3, 1997.
Hathcox argues that the default judgment was improper because TEX. FAM.CODE ANN. § 157.062(d) (Vernon 1996) provides:
(d) If a motion for enforcement is joined with another claim:
(1) the hearing may not be held before 10 a.m. on the first Monday after the 20th day after the date of service; and
(2) the provisions of the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply.
He contends that, pursuant to this provision, the hearing held on July 3 was premature.
Pickett, on the other hand, argues that Section 157.062 is applicable only in an original proceeding for the enforcement of child support and not in the present situation where there has been an amendment of a prior motion for enforcement of an existing order. She argues that since this is an amended motion, the Texas Rules of Civil Procedure control and not the Family Code. She specifically argues that TEX.R. CIV. P. 63 applies. That rule provides:
Parties may amend their pleadings, respond to pleadings on file of other parties, file suggestions of death and make representative parties, and file such other pleas as they may desire by filing such pleas with the clerk at such time as not to operate as a surprise to the opposite party; provided, that any pleadings, responses or pleas offered for filing within seven days of the date of trial or thereafter, or after such time as may be ordered by the judge under Rule 166, shall be filed only after leave of the judge is obtained, which leave shall be granted by the judge unless there is a showing that such filing will operate as a surprise to the opposite party.
Pickett cites TEX.R. CIV. P. 2 as authority for her proposition that the Rules of Civil Procedure control in this instance and not the Family Code. Rule 2 (Scope Of Rules) reads in part: "These rules shall govern the procedure in the justice, county, and district courts of the State of Texas in all actions of a civil nature, with such exceptions as may be hereinafter stated." The rule does not mention the Family Code within its exceptions. Pickett then argues that TEX.R. CIV. P. 247 applies. That rule states:
Every suit shall be tried when it is called, unless continued or postponed to a future day or placed at the end of the docket to be called again for trial in its regular order. No cause which has been set upon the trial docket of the court shall be taken from the trial docket for the date set except by agreement of the parties or for good cause upon motion and notice to the opposing party.
Pickett finally notes that Hathcox admitted in his brief to receiving notice of the July 3, 1997, hearing, that he did not attend the...
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Aguilar v. Alvardo
...judgment after the defendant has filed an answer. Tex. R. Civ. P. 239; Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989); In re Hathcox, 981 S.W.2d 422, 426 (Tex. App. Texarkana 1998, no pet.). When a trial court follows the Texas Rules of Civil Procedure and well-settled case law, it doe......
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In re Office of Attorney General of Texas, No. 14-08-00665-CV (Tex. App. 8/19/2008)
...default judgment that is procedurally defective because of improper service, then, is void and must be reversed. See In re Hathcox, 981 S.W.2d 422, 426 (Tex. App.-Texarkana 1998, no pet.). This is because the law presumes that a trial court will hear a case, including one involving child su......
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Aguilar v. Alvarado
...judgment after the defendant has filed an answer. TEX. R. CIV. P. 239; Davis v. Jefferies, 764 S.W.2d 559, 560 (Tex. 1989); In re Hathcox, 981 S.W.2d 422, 426 (Tex. App.-Texarkana 1998, no pet.). When a trial court follows the Texas Rules of Civil Procedure and well-settled case law, it doe......
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EPCO Holdings, Inc. v. Chicago Bridge & Iron Co.
...Thus, a defendant may wait to file an answer until after a certificate of merit is filed and the answer becomes due. See, e.g., In re Hathcox, 981 S.W.2d 422, 426 (Tex.App.-Texarkana 1998, no pet.) (“A default judgment rendered before a defendant's answer is due is void and must be reversed......