In the Interest of A.A., No. 2-06-467-CV (Tex. App. 8/14/2008)
| Decision Date | 14 August 2008 |
| Docket Number | No. 2-06-467-CV.,2-06-467-CV. |
| Parties | IN THE INTEREST OF A.A., a Minor Child. |
| Court | Texas Court of Appeals |
Appeal from the 89th District Court of Wichita County.
Panel: LIVINGSTON, WALKER, and MCCOY, JJ.
On July 10, 2008, this Court issued an opinion dismissing the appeal. Appellant the Office of the Attorney General filed a motion for rehearing. After due consideration, we deny the Office of the Attorney General's motion for rehearing, but we withdraw our opinion and judgment dated July 10, 2008, and substitute the following. Our disposition of this case remains unchanged.
The primary issue we address in this appeal is whether the Office of the Attorney General was a party in the underlying suit. The underlying suit was initiated by the Texas Department of Family and Protective Services ("TDFPS") to obtain temporary managing conservatorship of baby A.A. For the reasons set forth below, we sustain the first issue presented by the Office of the Attorney General, contending that it was not a party in the trial court, and consequently, because a nonparty has no standing to pursue an appeal, we dismiss this appeal.
This convoluted tale began in November 2005 when TDFPS filed a petition seeking temporary managing conservatorship of A.A., the daughter of then seventeen-year-old Appellee A.B. (referred to hereafter as A.B. or mother). TDFPS's petition specifically sought temporary and, ultimately, permanent payment of child support by A.A.'s mother and father. In paragraph four of the petition, TDFPS alleged that
[t]he Attorney General's office will be served by mail under Rule 21a, Texas Rules of Civil Procedure at P.O. Box 12017, Austin, Texas 78711-2017, pursuant to § 102.009(d), Texas Family Code.
The trial court granted TDFPS's emergency petition and eleven days later conducted an adversary hearing. At the conclusion of that hearing, the trial court issued temporary orders that instructed A.A.'s mother and father to pay child support and to make such payments "through the Child Support Division of the Office of the Texas Child Support Disbursement Unit" and provided an address.
Unbeknownst at this point to the parties, however, a typographical mistake existed in the trial court's temporary order, and A.A.'s mother and father were ordered to begin making child support payments in January 2005 (eleven months before A.A. was born) instead of in January 2006. Subsequently, mother's counsel filed a motion—agreed to by counsel for TDFPS—to suspend mother's child support payments because seventeen-year-old mother was herself under the managing conservatorship of TDFPS and was still attending high school. The trial court and counsel for both mother and TDFPS signed an agreed order suspending mother's child support obligations.
Approximately three months later, mother received a bill from the Office of the Attorney General for past due child support payments, plus interest. The bill was apparently generated based on the trial court's initial temporary order that contained the typographical error because the bill reflected that mother owed past due child support for 2005—before A.A. was even born.
As a result of receiving this bill for "past due" child support and interest accruing before baby A.A.'s birth, mother filed a motion to amend the temporary order on the ground that the trial court had mistakenly set the support payments to begin in January 2005 prior to A.A.'s birth. Mother sought to amend the order to reflect a January 1, 2006 start date for child support payments. The trial court granted this motion on April 19, 2006, and ordered that mother's and father's child support obligation commenced January 1, 2006 (as opposed to 2005), and that "the Texas Office of the Attorney General correct its records to reflect the amended orders and cancel any arrears alleged to be due for the calendar year 2005." That same day, counsel for mother faxed a copy of the trial court's amended order to Angela Ware at the Office of the Attorney General's Wichita Falls Child Support Unit.
Approximately one month later, on May 16, 2006, TDFPS filed a Permanency Plan and Progress Report stating that the goal of the plan was family reunification. TDFPS recommended that the suit be continued as opposed to dismissed but also set a May 19, 2006 (three days after TDFPS filed the permanency plan) date for achievement of the permanency plan. The trial court held—as TDFPS requested—a May 19, 2006 hearing, adopted the provisions of TDFPS's permanency plan, and ordered that TDFPS's suit be dismissed.
On May 21, 2006, the Office of the Attorney General sent mother another bill for past due child support, seeking the same payment it had previously sought based on the prior temporary order containing the typographical error. The document mailed by the Office of the Attorney General was titled "Notice of Intent to Report" and informed mother that "[o]ur office intends to report" mother's unpaid child support (for the year of 2005 before A.A. was born) "to credit reporting agencies" and that "[p]ayment in full will not remove the history of this debt from your record." The bill/notice of intent to report instructs mother that "[i]f the amount of support reported by the Office of the Attorney General is not correct, please contact the child support office listed below." The bill/notice of intent to report lists the following as the child support office for mother to contact:
CHILD SUPPORT UNIT 0104E
813 8th Street, 3rd FLR
PO Box 5067
WICHITA FALLS, TX 76307-9971
(940)322-2557
The record reflects that this is the same office to which mother's counsel previously faxed a copy of the amended temporary order.
In light of the continued efforts of the Office of the Attorney General to collect allegedly past due child support from mother, four days after receipt of the bill/notice of intent to report, mother filed a motion to enforce the amended temporary order that had ordered mother's and father's child support obligation to commence January 1, 2006 (as opposed to 2005) and that had ordered "the Texas Office of the Attorney General [to] correct its records to reflect the amended orders and cancel any arrears alleged to be due for the calendar year 2005." Mother mailed via certified mail return receipt requested the motion to enforce to the Office of the Attorney General at the Wichita Falls address set forth above and provided in the bill/notice of intent to report sent to mother.
On June 12, 2006, the trial court conducted a hearing on mother's motion to enforce. The Office of the Attorney General did not appear at the hearing. The trial court signed a June 13, 2006 "Order on Motion to Enforce" granting mother's motion to enforce and ordering "the Texas Office of the Attorney General [to] correct its records to reflect the amended orders and cancel any arrears alleged to be due for the calendar year 2005 from either parent . . . no later than ten (10) days from the date of this Order," to "issue written confirmation of the cancellation" to mother and father, and to "compensate [mother's attorney] in the amount of $1000.00 for her attorney fees." The Attorney General timely filed a notice of appeal.
In its first issue, the Office of the Attorney General contends that the trial court did not have jurisdiction over it because it was not a party to the suit. Mother claims, however, that the Office of the Attorney General was properly before the trial court because Texas Family Code section 102.009 provides that upon the filing of a petition in an original suit that requests the establishment of a support right assigned to the Attorney General, as the Title IV-D agency,2 "notice shall be given to the Title IV-D agency in a manner provided by Rule 21(a), Texas Rules of Civil Procedure." See TEX. FAM. CODE ANN. § 102.009(d).3 And local rules for Wichita County require that each order providing for child support shall include, and be deemed to include, an application for child support services provided by the Attorney General. WICHITA COUNTY (TEX.) DIST. CT. LOC. R. 5.4(a). Thus, mother argues that TDFPS was required to provide the Office of the Attorney General with "notice" of its suit seeking temporary managing conservatorship of baby A.A. and that this notice properly placed the Office of the Attorney General before the trial court.4
As the Office of the Attorney General points out, neither TDFPS nor A.A.'s mother or father sued the Office of the Attorney General or asserted any claims against it (other than the subsequently filed motion to enforce). Accord Reynolds v. Haws, 741 S.W.2d 582, 588-89 (Tex. App.-Fort Worth 1987, writ denied) (). And other statutes, similar to family code section 102.009(d), that require notice of a suit to be given to the Office of the Attorney General by providing a copy of the petition have not been construed to automatically make the Office of the Attorney General a "party" to every such suit. See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. § 37.006(b) (Vernon 1997) (); TEX. PROP. CODE ANN. § 123.004(a) (Vernon 2007) (). Instead, once the Office of the Attorney General is notified of such a suit, it may choose to intervene and participate or to not do so. See, e.g., City of San Antonio v. Summerglen Prop. Owners Ass'n Inc., 185 S.W.3d 74, 87 (Tex. App.-San Antonio 2005, pet. denied) (...
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