In Re EKN

24 S.W.3d 586, 2000 Tex. App. LEXIS 4677, 2000 WL 964643
CourtCourt of Appeals of Texas
DecidedJuly 13, 2000
Docket2-00-013-CV
StatusPublished

This text of 24 S.W.3d 586 (In Re EKN) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re EKN, 24 S.W.3d 586, 2000 Tex. App. LEXIS 4677, 2000 WL 964643 (Tex. Ct. App. 2000).

Opinion

24 S.W.3d 586 (2000)

In the Interest of E.K.N.

No. 2-00-013-CV.

Court of Appeals of Texas, Fort Worth.

July 13, 2000.

*588 Landrith & Kulesz, L.L.P., David T. Kulesz, Arlington, for Appellant.

Warmbrodt & Rachel, L.L.P., Randall B. Warmbrodt, Megan B. Rachel, Dallas, for Appellee.

PANEL B: DAY and HOLMAN, JJ.; and JOHN HILL, J. (Retired, Sitting by Assignment).

OPINION

DIXON W. HOLMAN, Justice.

This is a restricted appeal taken from a no-answer default judgment against Appellant Kurt Neswald arising out of a suit affecting the parent-child relationship (SAPCR). Because Appellant failed to demonstrate error on the face of the record, we affirm the trial court's judgment.

I. BACKGROUND

Appellant and Appellee Denise M. Page lived in California and began seeing one another in October 1994. The couple discovered in December that Appellee was pregnant. They moved in together and started saving for a house. The couple eventually bought a home and moved into it on June 30, 1995. On August 11, 1995, E.K.N. was born in West Hills, California.

After E.K.N.'s birth, the couple's relationship began to deteriorate. In May 1996, Appellant and Appellee got into an argument at a Malibu restaurant, which carried over to their home. Appellee locked Appellant out of their house and the police were called. Appellant was arrested and spent the night in jail although the charges eventually were dismissed. When Appellant returned home the following day, Appellee and E.K.N. were gone. Appellee returned several days later with a court order so that she could pack her belongings.

Two weeks later, Appellant received notice that Appellee had applied for governmental assistance and also was seeking a *589 protective order against him. A hearing was held in which both parties appeared, and on June 24, 1996, the Ventura County Superior Court entered a temporary protective order against Appellant. Although the court's order did not determine parentage, the California court referred to Appellant throughout its order as E.K.N.'s "parent" and "father." The court went on to grant Appellant visitation rights to E.K.N. Appellant was prohibited from contacting or telephoning Appellee, but Appellant and Appellee began talking that same evening and eventually moved back in together in time for E.K.N.'s first birthday on August 11, 1996.

On September 23, 1996, the Ventura County District Attorney's Office filed an action numbered D247383 against Appellant seeking to establish a parent-child relationship between him and E.K.N. and an order to require Appellant to pay child support and health insurance. The petition alleged that Appellant was the natural father and parent of E.K.N. and that E.K.N. had been receiving public assistance beginning on June 10, 1996. The court entered a final judgment in that proceeding on August 15, 1997, which created a parental relationship between Appellant and E.K.N and ordered Appellant to pay child support for E.K.N. in the amount of $716 per month to begin on August 1, 1997. The court also ordered Appellant to pay child support in the amount of $2,127 for the period between June 10, 1996 and September 30, 1996.

Although the couple tried to rebuild their relationship through counseling, they were unsuccessful. The two permanently separated on January 31, 1998, after Appellee attacked a 12-year-old soccer referee during a children's soccer match. Appellee packed her station wagon with as much as it would hold and drove off with E.K.N. and her other son by a previous marriage. Appellant has not seen them since.

Appellee and E.K.N. moved to Tarrant County on February 16, 1998. Appellant and Appellee communicated by telephone and e-mail, but Appellee would not tell him where she was living. On May 4, 1999, Appellant filed a petition to establish a parental relationship seeking child support, custody, and visitation of E.K.N. in the Los Angeles County Superior Court. On July 2, 1999, Appellee filed a SAPCR in Tarrant County seeking a permanent order that Appellee be appointed sole managing conservator of E.K.N. and that Appellant pay child support. The petition also sought various temporary orders in E.K.N.'s best interest. Appellant was served with process on July 16, 1999, and a temporary hearing was set for July 22, 1999. Appellant neither appeared nor answered. The Texas court entered temporary orders appointing Appellee sole managing conservator finding that it had jurisdiction over both E.K.N. and Appellee.

On September 10, 1999, the Texas court conducted a final hearing on Appellee's SAPCR. Appellant defaulted. Appellee moved for a default judgment against Appellant, and, after hearing evidence, the court entered judgment in favor of Appellee. In its final order, the Texas court appointed Appellee as sole managing conservator and ordered Appellant to pay $750.16 child support per month. On January 10, 2000, Appellant filed his notice of restricted appeal. See Tex.R.App. P. 26.1(c), 30.

II. POINTS ON APPEAL

Appellant brings two points on appeal. In the first, Appellant contends that the Texas court lacked jurisdiction to enter a default judgment against him because it had notice of a similar custody suit pending in California, which required the Texas court to stay its proceedings under the Texas version of the Uniform Child Custody Jurisdiction Act (UCCJA).[1]See TEX. *590 FAM.CODE ANN. § 152.006(a) (Vernon 1996). In his second point, Appellant complains that the trial court erred by asserting jurisdiction and entering a default judgment against him because the prior, ex parte proceeding in California vested the Ventura County Superior Court with continuing, exclusive jurisdiction under the Parental Kidnapping Prevention Act (PKPA). See 28 U.S.C.A. § 1738A (West 1994).

III. RESTRICTED APPEAL

Rule 30 of the Texas Rules of Appellate Procedure provides that 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 postjudgment motion or request for findings of fact and conclusions of law, or a notice of appeal within the time permitted by Rule 26.1(a), may file a notice of appeal within the time permitted by Rule 26.1(c). Tex.R.App. P. 30. This type of appeal, known as a restricted appeal, is a direct attack on the trial court's judgment. See Barker CATV Constr., Inc. v. Ampro, Inc., 989 S.W.2d 789, 792 (Tex.App.-Houston [1st Dist.] 1999, no pet.). It is typically taken from a default judgment that has been rendered after a party fails to attend trial. See Texaco, Inc. v. Central Power & Light Co., 925 S.W.2d 586, 589 (Tex.1996). A default judgment can be rendered either before or after the defendant files an answer. See Attorney Gen. of Tex. v. Orr, 989 S.W.2d 464, 468 (Tex.App.-Austin 1999, no pet.).

A restricted appeal is available for the limited purpose of providing a party that did not participate at trial with the opportunity to correct an erroneous judgment. See Onyx TV v. TV Strategy Group, L.L.C., 990 S.W.2d 427, 429 (Tex.

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In the Interest of E.K.N.
24 S.W.3d 586 (Court of Appeals of Texas, 2000)

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Bluebook (online)
24 S.W.3d 586, 2000 Tex. App. LEXIS 4677, 2000 WL 964643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-ekn-texapp-2000.