in Re Queen Preston

• Court: Court of Appeals of Texas
• Decided: May 28, 2015
• Docket: 09-15-00137-CV
• Status: Published

Opinion

In The

Court of Appeals Ninth District of Texas at Beaumont _________________ NO. 09-15-00137-CV _________________

IN RE QUEEN PRESTON

________________________________________________________________________

Original Proceeding ________________________________________________________________________

MEMORANDUM OPINION

Queen Preston seeks mandamus relief from the trial court’s order granting a

new trial in a child-support-enforcement proceeding. In her petition, Preston asks

us to compel the judge of the 258th District Court of Polk County, Texas, to vacate

its order granting Jerry King DeBerry’s motion for a new trial. Mandamus is a

proper remedy where the trial court signs an order granting a new trial after its

plenary power has expired. In re Dickason, 987 S.W.2d 570, 571 (Tex. 1998)

(orig. proceeding). Because the trial court no longer possessed plenary power of

the child-support-enforcement proceeding when it granted DeBerry’s motion, we

conditionally grant relief.

1 According to the pleadings in the mandamus record before us, Preston and

DeBerry divorced in 1970. On September 15, 2014, the trial court signed a child-

support-enforcement order, finding that on June 30, 2014, DeBerry was served by

certified mail and regular mail with a notice of Preston’s request that the trial court

issue a judicial writ of withholding; that DeBerry failed to file a verified motion to

stay the child-support-enforcement proceeding within the statutorily mandated ten

day period; and that, as of June 17, 2014, Preston owed $174,128.61 in past due

child support. The trial court awarded Preston an arrearage judgment, and ordered

that DeBerry pay her attorney’s fees. Additionally, the trial court found that

Preston was entitled to foreclose on a child support lien of $2,777.84 against funds

in DeBerry’s bank account, and it ordered that a judicial writ of withholding issue,

attaching DeBerry’s obligation to pay child support to his future wages. The

judgment recites that DeBerry could be served with the arrearage order at a street

address in Diboll, Texas. Preston used the same address to notify DeBerry of her

request that he be ordered to pay past due child support, as Deberry’s motion for

new trial indicates the notice of the proceedings was sent to his address in Diboll.

On October 10, 2014, DeBerry filed a verified motion for new trial in which

he asked the trial court to overturn the arrearage judgment. In his motion, DeBerry

alleged that one of his relatives signed the return receipt that accompanied the

2 notice that Preston had filed a request for an arrearage judgment, and he alleged

that approximately two weeks after the notice was sent to the address in Diboll, his

relative forwarded the notice to the home of his caretaker. According to DeBerry,

his caretaker responded, by mail, to the trial court’s notice regarding Preston’s

request for an arrearage judgment; however, his “representative” failed to file a

motion asking the trial court to stay the issuance of the writ. See Tex. Fam. Code

Ann. § 158.307 (West 2014) (allowing an obligor to stay the issuance of a judicial

writ of withholding by filing a motion to stay “not later than the 10th day after the

date the notice of application for judicial writ of withholding was received”).

Additionally, DeBerry represented in his motion for new trial that he suffers

from dementia, and that he was unaware that Preston had attempted to serve him

with the arrearage order at issue. According to DeBerry’s motion, Preston was

aware that he was living in Houston when she filed her request seeking an

arrearage judgment, and she knew his current address in Houston before she filed

the proceedings that resulted in the trial court’s ruling granting her request.

DeBerry also claimed that although he personally appeared at the hearing on

Preston’s motion seeking an arrearage judgment, he “was unable to understand the

proceedings.” The transcript of the proceedings the trial court conducted on

Preston’s request for an arrearage judgment is not in the record that is before us.

3 Finally, DeBerry’s motion for new trial alleges that the doctrine of laches provides

him with a defense against Preston’s request for an arrearage judgment. DeBerry

suggests that Preston’s failure to inform the trial court of his current address in

Houston explains why he failed to timely respond within ten days to her request to

enforce the trial court’s child-support order, and DeBerry suggested in his motion

that he could not pay support in any amount given his age, deteriorating health, and

lack of resources.

On January 12, 2015, approximately four months after the trial court

rendered the arrearage judgment at issue, the trial court granted DeBerry’s motion

for new trial. Approximately three months after the trial court signed the order

granting DeBerry’s motion for new trial, and approximately seven months after the

trial court signed the arrearage judgment, Preston filed her request in this Court

seeking mandamus relief. We requested a response to Preston’s petition for writ of

mandamus from the real party in interest, but none was filed. See Tex. R. App. P.

52.4.

A trial court’s arrearage judgment in a child support case cannot be modified

after the trial court’s plenary power over the arrearage judgment expires. See In re

Dryden, 52 S.W.3d 257, 262 (Tex. App.—Corpus Christi 2001, orig. proceeding).

“Once a trial court’s plenary power has expired, it has no jurisdiction to modify or

4 change its original judgment except by bill of review.” Moore v. Brown, 993

S.W.2d 871, 874 (Tex. App.—Fort Worth 1999, pet. denied). Neither a bill of

review nor a motion to withdraw the judicial writ of withholding was before the

trial court when it granted DeBerry’s motion for new trial. See Thursby v. Stovall,

647 S.W.2d 953, 954 (Tex. 1983) (orig. proceeding); see also Tex. Fam. Code

Ann. § 158.317 (West 2014) (failure to receive notice of application for judicial

writ of withholding).

The trial court granted DeBerry’s motion for new trial on January 12, 2015.

However, DeBerry’s motion for new trial, which he timely filed, was overruled by

operation of law on December 1, 2014, seventy-five days after the date that the

trial court rendered the arrearage judgment that is at issue. See Tex. R. Civ. P.

329b(a), (c). The trial court continued to have plenary power over its judgment for

an additional thirty days, which ended on December 31, 2014. Tex. R. Civ. P.

329b(e). Consequently, on the date the trial court granted Deberry’s motion for

new trial, it no longer possessed plenary power to alter the arrearage judgment. See

In re Dickason, 987 S.W.2d at 571. We hold that the trial court’s order granting

DeBerry’s request for a new trial is void.

5 Mandamus relief is conditionally granted. We are confident the trial court

will vacate its order granting DeBerry’s motion for new trial. 1 The writ of

mandamus will issue only if the trial court fails to comply.

PETITION CONDITIONALLY GRANTED.

PER CURIAM

Submitted on April 24, 2015 Opinion Delivered May 28, 2015

Before McKeithen, C.J., Horton and Johnson, JJ.

1 This mandamus proceeding has been presented to the appellate court on a sparse record that includes only the arrearage judgment, the motion for new trial, the reporter’s record of the motion for new trial hearings, and the order granting the motion for new trial. We express no opinion regarding the merits of the parties’ dispute. 6