In Re Jac

362 S.W.3d 756, 2011 WL 6425698
CourtCourt of Appeals of Texas
DecidedDecember 22, 2011
Docket14-11-00119-CV
StatusPublished

This text of 362 S.W.3d 756 (In Re Jac) 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 Jac, 362 S.W.3d 756, 2011 WL 6425698 (Tex. Ct. App. 2011).

Opinion

362 S.W.3d 756 (2011)

In The Interest of J.A.C., A Child.

No. 14-11-00119-CV.

Court of Appeals of Texas, Houston (14th Dist.).

December 22, 2011.

*757 Enrique Torres, Houston, for appellant.

John B. Worley, Austin, for appellee.

Panel consists of Justices FROST, SEYMORE, and JAMISON.

OPINION

CHARLES W. SEYMORE, Justice.

In this restricted appeal, appellant Robert Hinojosa challenges an "Order Confirming Non-Agreed Child Support Review Order." In two issues, Hinojosa contends (1) the trial court erred by signing the confirmation order later than the time period prescribed in the applicable statute, and (2) appellee The Office Of The Attorney General Of Texas ("the OAG") did not comply with the statute because it failed to timely provide Hinojosa with a copy of the confirmed child support review order and notice of his rights relative to filing a motion for new trial. We affirm.

*758 I. BACKGROUND

The OAG and J.A.C.'s mother negotiated a child support review order ("the CSRO"), which was designated "Non-Agreed" because Hinojosa, J.A.C.'s alleged father, did not participate in the negotiations or sign the CSRO. The CSRO includes provisions establishing Hinojosa's paternity of J.A.C. and requiring that Hinojosa pay child support. The OAG filed a petition for confirmation of the CSRO. Although the date is not reflected in the record, Hinojosa asserts in the "Statement of Facts" section of his appellate brief, and the OAG does not dispute, that Hinojosa was served with the petition on July 9, 2010. See Tex.R. Civ.App. 38.1(g) (providing, in civil case, court of appeals accepts as true facts in "Statement of Facts" section of appellant's brief unless controverted by another party). On August 5, 2010, Hinojosa filed an answer, which included a general denial.

On August 10, 2010, the trial court signed an order, reciting that no request for hearing was timely filed and confirming the non-agreed CSRO. Hinojosa also asserts in his "Statement of Facts," and the OAG does not directly dispute, Hinojosa lacked "knowledge or notice" until October 14, 2010 that the trial court had signed the confirmation order. Hinojosa did not file any post-judgment motions or requests for findings of fact and conclusions of law but subsequently pursued this restricted appeal.

II. STANDARD OF REVIEW

To prevail on a restricted appeal, an appellant must establish (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 and did not timely file any postjudgment motions or requests for findings of fact and conclusions of law, and (4) error is apparent on the face of the record. Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex.2004); see Tex.R.App. P. 26.1(c), 30. We need not decide whether all of the first three elements are satisfied in the present case because Hinojosa has not established error apparent on the face of the record that requires reversal of the confirmation order.

III. ANALYSIS

Chapter 233 of the Texas Family Code governs child support review orders. See Tex. Fam.Code Ann. §§ 233.001-.029 (West 2008 and Supp. 2011). A child support review order confirmed by a court constitutes an order of the court and is enforceable by any means available for enforcement of child support obligations under the Family Code. Id. § 233.001(b). The procedures for confirmation vary according to whether the child support review order is agreed or not agreed. See generally id. §§ 233.001-.029.

When the child support review order is not agreed, as in the present case, the OAG files a petition for confirmation. See id. § 233.020. The clerk of court must deliver by personal service a copy of the petition and the child support review order to each party entitled to service who has not waived service. Id. § 233.021(c). A party may file a request for a hearing within twenty days after the petition is delivered to that party. Id. § 233.023. A request for hearing or an order setting a hearing stays confirmation of the order pending the hearing, which is comparable to a trial de novo on disputed issues. See id. § 233.025(a), (b).

"If a request for hearing has not been timely received, the court shall confirm and sign a nonagreed child support review order not later than the 30th day after the *759 date the petition for confirmation was delivered to the last party entitled to service." Id. § 233.0271(a). Additionally, the OAG "shall immediately deliver a copy of the confirmed nonagreed review order to each party, together with notice of right to file a motion for a new trial not later than the thirtieth day after the date the order was confirmed by the court." Id. § 233.0271(b).

A. Untimely Signing of Confirmation Order

As Hinojosa acknowledges, he did not timely request a hearing because he filed his answer more than twenty days after the confirmation petition was delivered to him and the record includes no separate request for a hearing made within this twenty-day period. See id. § 233.023; see also id. § 233.022(a) (providing that a court shall consider any responsive pleading which is intended as an objection to confirmation of a non-agreed child support review order, including general denial, as request for a hearing). In his first issue, Hinojosa contends the trial court violated section 233.0271(a) because it signed the confirmation order more than thirty days after the petition was delivered to Hinojosa.[1]See id. § 233.0271(a).

Hinojosa does not urge any specific consequences of the trial court's failure to sign the confirmation order within the thirty-day period but apparently suggests the order is automatically void. However, we adopt the reasoning employed by the First Court of Appeals, as set forth below, when it rejected an identical complaint as an issue of first impression in In Re Office of the Attorney General of Texas, 264 S.W.3d 800, 807-09 (Tex.App.-Houston [1st Dist.] 2008, orig. proceeding).

When construing a statute, "`[o]ur primary goal is to ascertain and effectuate the Legislature's intent.'" Id. at 807 (quoting Cardinal Health Staffing Network, Inc. v. Bowen, 106 S.W.3d 230, 237 (Tex.App.-Houston [1st Dist.] 2003, no pet.)); see also F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). "`[W]e begin with the statute's plain language because we assume that the Legislature tried to say what it meant and, thus, that its words are the surest guide to its intent.'" Attorney Gen., 264 S.W.3d at 807 (quoting Cardinal Health, 106 S.W.3d at 237-38); see also Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 866 (Tex.1999).

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Bluebook (online)
362 S.W.3d 756, 2011 WL 6425698, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jac-texapp-2011.