in the Interest A.B., N.B., G.B., M.B., G.B., C.B., and C.B., Children

• Court: Court of Appeals of Texas
• Decided: June 13, 2012
• Docket: 04-11-00741-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-11-00741-CV

IN THE INTEREST OF A.B., N.B., G.B., M.B., G.B., C.B., and C.B., Children

From the 37th Judicial District Court, Bexar County, Texas Trial Court No. 1993-CI-00355 Honorable Janet P. Littlejohn, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sandee Bryan Marion, Justice Rebecca Simmons, Justice Marialyn Barnard, Justice

Delivered and Filed: June 13, 2012

AFFIRMED

Appellant, the father of seven children, appeals the district court’s finding and

confirmation of his child support arrearages in the amount of $29,209.92. We affirm.

BACKGROUND

On May 4, 1994, appellant was ordered to pay monthly child support for the benefit of

six of his seven children. In 2002, appellant and the children began receiving disability benefits

from the Social Security Administration (the “SSA”) based on appellant’s disability. However,

appellant never sought modification of his monthly child support obligation.

On November 29, 2010, the Office of the Attorney General (the “OAG”) filed both a suit

to modify appellant’s child support obligation and a motion to confirm his child support 04-11-00741-CV

arrearages. The OAG alleged appellant owed $30,730.65 in child support arrearages and

requested the court find and confirm this amount. After the associate judge found that appellant

owed $29,209.00 in child support arrearages, appellant requested a trial de novo hearing with the

district court.

The district court held a hearing on July 15, 2011. The OAG, appellant, and the custodial

parent of the children participated in this hearing. Appellant requested the district court order

credits and offsets against his child support arrearages. He contended that his former wife, the

custodial parent of the children, received direct benefit payments from the SSA on behalf of the

children at the same time she received a portion of his Social Security disability benefits through

wage withholding facilitated by the OAG. Appellant claimed he did not receive credit for the

direct benefit payments his former wife received on behalf of the children. The OAG countered

that appellant failed to seek modification of his child support obligation which would have

allowed him to receive credit for the direct benefit payments. The OAG further argued that the

Texas Family Code does not authorize a retroactive modification of appellant’s child support

arrearages. At the end of the hearing, the district court found and confirmed appellant owed

$29,209.02 in child support arrearages.

TRIAL DE NOVO

In his first issue on appeal, appellant asserts the district court erred by failing to provide

him a de novo hearing after his appeal of the associate judge’s recommendation. Appellant

contends the hearing before the district court was only a confirmation of the associate judge’s

recommendation because the OAG was allowed to introduce portions of the record from that

hearing and recite the actions of the associate judge. The OAG, however, counters that appellant

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did not preserve this complaint because he failed to timely object to the introduction of the

record of the hearing before the associate judge.

Any issues appealed from an associate judge’s ruling are heard de novo before a district

court. TEX. FAM. CODE ANN. § 201.015(c) (West Supp. 2010); In re N.T., 335 S.W.3d 660, 669

(Tex. App.—El Paso 2011, no pet.). A trial de novo is a new and independent action on those

issues raised. In re N.T., 335 S.W.3d at 669; Chacon v. Chacon, 222 S.W.3d 909, 914 (Tex.

App.—El Paso 2007, no pet.). As a result, the party with the burden of proof, having prevailed

before the associate judge, must still carry the burden in a de novo hearing before the district

court. In re N.T., 335 S.W.3d at 669; Attorney Gen. of Tex. v. Orr, 989 S.W.2d 464, 467 (Tex.

App.—Austin 1999, no pet.). In general, the district court’s judgment must be based only on the

evidence presented at the de novo hearing. In re N.T., 335 S.W.3d at 669; Orr, 989 S.W.2d at

468 n.2. However, the Family Code allows the district court to consider the record from the

hearing before the associate judge. TEX. FAM. CODE § 201.015(c); In re N.T., 335 S.W.3d at 669.

Here, the district court held a hearing on appellant’s requested trial de novo, and all

parties appeared. The OAG offered to the district court the following portions of the record from

the hearing before the associate judge: the underlying pleading; documents from appellant’s

divorce; appellant’s child support pay records; and the associate judge’s ruling. Appellant did

not object to introduction of these documents. After reviewing the documents, the district court

listened to the legal arguments of both parties. The district court also allowed appellant’s

testimony.

In order to preserve a complaint for appellate review, the complaint must be made by a

timely request, objection, or motion and with sufficient specificity to notify the district court of

the complaint and obtain an adverse ruling. TEX. R. APP. P. 33.1(a). If not done, the

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complained-of error is waived on appeal. In re N.T., 335 S.W.3d at 669. In this case, appellant

did not object to the district court’s review of the record of the associate judge’s hearing nor to

the failure, if any, of the district court to conduct a hearing de novo. As such, appellant cannot

complain for the first time on appeal that the district court’s conduct was improper. See In re

N.T., 335 S.W.3d at 669; Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982); In re K.C.B., 280

S.W.3d 888, 893 (Tex. App.—Amarillo 2009, pet. denied). Therefore, appellant’s first issue is

overruled.

INEFFECTIVE ASSISTANCE OF COUNSEL

In his second issue on appeal, appellant complains he received ineffective assistance of

counsel. Generally, the doctrine of ineffective assistance of counsel is limited to criminal cases.

See Cherqui v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343–44 (Tex. App.—Houston

[14th Dist.] 2003, no pet.). Except in limited circumstances, the Sixth Amendment right to

effective counsel does not extend to civil cases. See Green v. Kaposta, 152 S.W.3d 839, 844

(Tex. App.—Dallas 2005, no pet.); Cherqui, 116 S.W.3d at 343–44. Civil cases in which the

right to effective assistance of counsel has been found to apply involve the termination of an

individual’s parental rights or the deprivation of a liberty. See In re M.S., 115 S.W.3d 534, 544

(Tex. 2003) (holding there is a right to effective assistance of counsel in parental-rights

termination proceedings); Lanett v. State, 750 S.W.2d 302, 306 (Tex. App.—Dallas 1988, writ

denied) (holding that the subject of an involuntary commitment proceeding has the right to

effective assistance of counsel). Here, appellant’s case is not included within any of the limited

exceptions to the general rule regarding effective assistance of counsel in civil cases.

Accordingly, we conclude appellant’s claim regarding ineffective assistance of counsel is

without merit.

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CONCLUSION

We overrule appellant’s issues on appeal and affirm the judgment of the district court.

Sandee Bryan Marion, Justice

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