In re J.M.G.
| Decision Date | 07 October 2021 |
| Docket Number | 13-20-00268-CV |
| Parties | IN THE INTEREST OF J.M.G., J.G. III, AND J.X.G., CHILDREN |
| Court | Texas Court of Appeals |
On appeal from the 319th District Court of Nueces County, Texas.
Before Chief Justice Contreras and Justices Benavides and Silva
Appellant the Office of the Attorney General (OAG), brings this restricted appeal challenging an order modifying the parent-child relationship that eliminated appellee J.G Jr.'s (J.G.) obligation to pay child and medical support arrears to appellee J.M.O. on behalf of their minor children. By five issues, OAG argues that: (1) the OAG satisfied the jurisdictional requirements to bring a restricted appeal; and (2-5) error is apparent on the face of the record because among other things, the order was entered over OAG's objections and without a hearing. We dismiss for want of jurisdiction. See Tex. R. App. P. 42.3(a), 43.2(f).
In 2007, the trial court appointed J.M.O. and J.G. joint managing conservators of their children, awarded J.M.O. the right to designate the children's primary residence, and ordered J.G. to pay $245.00 per month in child support and $91.00 per month in cash medical support to J.M.O. In July 2011, the OAG filed a motion for enforcement of child and medical support, alleging that J.G. owed $9, 768.51 in child support arrears and $4, 247.66 in medical support arrears. The trial court granted the motion in favor of OAG in November 2011.
In 2014, J.G. moved for an order modifying the parent-child relationship to award him the exclusive right to designate the children's primary residence. The trial court ordered all relief requested in favor of J.G. and further ordered that neither J.G. nor J.M.O. was obligated to continue paying child support. In 2016, J.G. again petitioned the court for an order modifying the parent-child relationship. In 2017, J.G. and J.M.O. attended mediation which resulted in a mediated settlement agreement providing, among other things, that any child support arrears owed by J.G. to J.M.O. would be waived.
In March 2018, the OAG filed a petition in intervention in the case, asserting that it is a necessary party to the action because J.G.'s action seeks to "establish, modify, or enforce a support right assigned to the [OAG] pursuant to Texas Family Code Chapter 231." See Tex. Fam. Code Ann. §§ 231.001-.309. In its filing, OAG sought a modification of the 2014 order and a judgment verifying J.G.'s child support arrears as $2, 196.57 and medical support arrears as $3, 718.17.
In June 2018, J.M.O. and J.G. submitted, and the trial court signed, a temporary order consistent with their 2017 mediated settlement agreement. On December 27, 2019, J.G. and J.M.O. filed a proposed final order, which included as one of its terms the waiver of J.G.'s child support arrears. Three days later, the OAG filed its objection to the proposed order, asserting that the "proposed order does not contain a signature from a representative of the [OAG] . . . and the OAG is a necessary party with active pleadings on file." The OAG further contended that "the proposed order was not previously submitted to the OAG for review before filing with the Court," and that "the OAG is not in agreement with the Order in its current form." The OAG requested "that the Court grant the objection of the OAG and require the OAG['s] approval and signature of any Order submitted to this Court."
On January 8, 2020, the trial court adopted J.G. and J.M.O.'s December 27, 2019 proposed order and signed a final judgment in the case. Five months later, on June 11, 2020, the OAG filed its notice of restricted appeal from the trial court's January 8 order.[1]
Subject to limited exceptions, a party seeking to appeal a trial court's judgment must file a notice of appeal within thirty days after the judgment is signed. See Tex. R. App. P. 26.1. One such exception is a restricted appeal. See id. R. 26.1(c), 30. To establish its entitlement to a restricted appeal, an appellant must prove that: (1) it filed its notice of restricted appeal within six months after the judgment was signed; (2) it was a party to the underlying suit; (3) it did not participate in the hearing that resulted in the complained-of judgment and did not file any post-judgment motions or request findings of fact and conclusions of law; and (4) error is apparent on the face of the record. See id. R. 30; Ex parte E.H., 602 S.W.3d 486, 495 (Tex. 2020). The first three requirements are jurisdictional. Ex parte E.H., 602 S.W.3d at 495. Failure to satisfy any of the three requirements precludes an appellate court's ability to entertain the appeal. Id. at 497.
It is undisputed that OAG filed a notice of the restricted appeal within six months after the judgment was signed and, as the state's Title IV-D agency, [2] was a party to the underlying lawsuit. Accordingly, we proceed to consider the non-participation requirement-OAG's first issue on appeal.
By its first issue, OAG contends that it met the non-participation requirement to bring a restricted appeal. Specifically, it argues that its filing of an objection to J.G. and J.M.O.'s proposed final order did not constitute "participation" because the trial court acted outside "its authority to enter a final order in a [suit affecting the parent-child relationship] without holding a hearing, receiving evidence, or making a record." J.G. contends that OAG's December 30, 2019 filing objecting to J.G. and J.M.O.'s proposed final order amounted to participation for purposes of a restricted appeal, and, as such, notwithstanding any "purported errors in the January 8 Order," OAG should have brought a timely appeal or timely filed a motion to modify or correct the judgment.
A restricted appeal is limited to a "party who did not participate-either in person or through counsel-in the hearing that resulted in the judgment complained of . . . ." Tex.R.App.P. 30. The "policy behind the non[-]participation requirement is to deny appeal by writ of error[[3] to those who should reasonably resort to the quicker method of appeal." Texaco, Inc. v. Cent. Power & Light Co., 925 S.W.2d 586, 590 (Tex. 1996) (citing Lawyers Lloyds v. Webb, 152 S.W.2d 1096, 1098 (Tex. 1941)); see Tex. R. App. P. 26.1. "Those who participate in the trial leading up to the rendition of judgment are familiar with the record, and are therefore in position to prepare for appeal on short notice; whereas, those who do not so participate . . . and are therefore unfamiliar with the record, may need additional time . . . to [so] familiarize themselves" and prepare for appeal. Texaco, 925 S.W.2d at 590; see also Cox v. Cox, 298 S.W.3d 726, 731 (Tex. App.-Austin 2009, no pet.).
What exactly "participat[ion] . . . in the hearing" consists of under Rule 30 requires a case-by-case, fact-specific determination. See Tex. R. App. P. 30. The Texas Supreme Court has ruled that the primary inquiry is "whether the appellant has participated in 'the decision-making event' that results in judgment adjudicating the appellant's rights." Texaco, 925 S.W.2d at 589-90. "[B]ecause trial courts decide cases in a wide variety of procedural settings," "[t]he nature and extent of participation that precludes appeal by [restricted appeals] in any particular case is a matter of degree." Id. at 589 (citing Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985), abrogated on other grounds by Ex parte E.H., 602 S.W.3d at 486). Accordingly, the focus of our analysis is on whether the record reflects that OAG participated in the relevant "decision-making event." Id. at 589-90. We conclude that it does.
The decision-making event in this case was the trial court's January 8, 2020 order modifying the parent-child relationship. As detailed above, the record reflects that the January 8 order was based on J.G. and J.M.O.'s proposed final order filed on December 27, 2019. OAG filed its objection to the proposed order on December 30, 2019, in which it argued that the "proposed order does not contain a signature from a representative of the [OAG]," "OAG is a necessary party with active pleadings on file," "the proposed order was not previously submitted to the OAG for review before filing with the Court," and "the OAG is not in agreement with the Order in its current form." The OAG requested "that the Court grant the [OAG's] objection." On January 8, 2020, with both parties' filings before it, the trial court adopted J.G. and J.M.O.'s December 27 proposed order and rendered final judgment in the case.
In arguing that its written objection does not constitute participation, OAG cites Phagan v. Aleman, 29 S.W.3d 632 (Tex. App.-Houston [1st Dist.] 2000, no pet.) and Attorney General of Texas v. Orr, 989 S.W.2d 464 (Tex. App.-Austin 1999, no pet.) for the proposition that "'non-participation' is satisfied when the trial court does not convene proceedings required by law." We find Phagan and Orr distinguishable and, in fact, detrimental to OAG's argument in this case.
The courts in Phagan and Orr both encountered issues regarding child support orders. See Phagan 29 S.W.3d at 633; Orr, 989 S.W.2d at 466. In both of those cases, however, the trial courts referred the matters to associate judges, as authorized by the Texas Family Code. See generally Tex. Fam. Code Ann. §§ 201.001-.209; Phagan, 29 S.W.3d at 633; Orr, 989 S.W.2d at 466. The associate judges held evidentiary hearings on the parties' motions and issued reports and recommendations for the referring courts' review. Phagan, 29 S.W.3d at 633; Orr, 989 S.W.2d at 467. Under Texas Family Code §§ 201.015 (de novo hearing before...
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