in the Interest of H.M.G. III, a Child
This text of in the Interest of H.M.G. III, a Child (in the Interest of H.M.G. III, a Child) 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.
Opinion
Opinion issued January 5, 2023.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-21-00657-CV ——————————— IN THE INTEREST OF H.M.G., III, A CHILD
On Appeal from the 257th District Court Harris County, Texas Trial Court Case No. 2015-62841
MEMORANDUM OPINION
Father appeals the trial court’s refusal to conduct a hearing de novo before
signing an order adopting the associate judge’s recommendation regarding child
support. We reverse the judgment of the trial court. Background
H.M.G., Jr. (father) and L.C.M. (mother) are the parents of H.M.G., III, who
is the subject of a suit affecting the parent-child relationship. In April 2016, the
court entered an agreed judgment regarding custody, parenting time, and child
support. In November 2020, the Child Support Division of the Office of the
Attorney General (“OAG”) moved to confirm arrearages and to modify the support
order. In turn, father moved to decrease monthly child support, and mother moved
to increase child support and alleged that father was engaged in a pattern of
intentional underemployment. After a hearing on the motions before an associate
judge, the associate judge recommended increasing father’s monthly child support
amount and requiring father to pay attorney’s fees. Father timely moved for a de
novo hearing.
When the parties convened for the hearing, the OAG objected to the hearing
because father had not provided the OAG with notice. The court denied the motion
for rehearing on the grounds that the time to convene a de novo hearing after a
timely filed request had lapsed. See TEX. FAM. CODE § 201.015(f) (“De Novo
Hearing Before Referring Court”; stating that trial court must convene hearing “not
later than the 30th day after the date on which the initial request for a de novo
hearing was filed with the clerk of the referring court”). Father moved for a new
2 trial, which was denied. He sought rehearing on the motion for new trial, and it
was denied. Father appealed.
On appeal, father challenges the trial court’s refusal to conduct a de novo
hearing. He also argues that the evidence was legally and factually insufficient to
support the child support order.
De Novo Hearing
In his first issue, father asserts that the trial court erred in denying him a de
novo hearing. Father argues that section 201.015(f) of the Family Code, which
requires the trial court to hold a de novo hearing within 30 days of the request, is
not jurisdictional. He argues that the court should have continued the hearing when
the OAG was not properly noticed. The OAG filed a letter with the court
conceding error and stating that section 201.015(f) is not jurisdictional.
A. Applicable law and standard of review
Chapter 201, of the Texas Family Code authorizes trial judges to refer
various family-law issues to associate judges. See TEX. FAM. CODE §§ 201.001, et
seq. In subchapter B of chapter 201, the Legislature affords specialized associate
judges for Title IV-D1 cases. See id. §§ 201.101, et seq. A IV-D associate judge
1 Proceedings related to the establishment, modification, or enforcement of child support obligations are often called “Title IV-D cases.” Title IV-D refers to subchapter IV, Part D of the federal Social Security Act, which “creates a child- support-enforcement program” for participating states, including Texas, to administer the plan. See Office of the Attorney Gen. of Tex. v. C.W.H., 531 S.W.3d 178, 181 (Tex. 2017) (citing 42 U.S.C. §§ 651, 654, and TEX. FAM. CODE 3 may recommend to the referring court any order after a trial on the merits. TEX.
FAM. CODE § 201.104(c). Following a hearing conducted by a IV-D associate
judge, the associate judge shall send the judge’s written report to the referring
court. See id. §§ 201.011(a), (e), 201.102. The associate judge’s report may be in
the form of a proposed order. See id. §§ 201.011(a), 201.102. A party may request
a de novo hearing before the referring court not later than the third working day
after the date the party receives notice of the substance of the associate judge’s
report. Id. § 201.015(a). Section 201.015(f) provides that the referring court “shall
hold a de novo hearing not later than the 30th day after the date on which the initial
request for a de novo hearing was filed. TEX. FAM. CODE. § 201.015(f).
Under Texas Rule of Appellate Procedure 44.1(a), error by the trial court
requires reversal if the error probably caused the rendition of an improper
judgment. See TEX. R. APP. P. 44.1(a). A judgment rendered without granting a
party the right to a de novo hearing on matters disposed of in the judgment is an
improper judgment. See TEX. FAM. CODE §§ 201.102, 201.1042(a), (b); In re
R.A.O., 561 S.W.3d 704, 710–11 (Tex. App.—Houston [14th Dist.] 2018, no pet.)
(holding trial court’s denial of de novo hearing caused the rendition of an improper
judgment necessitating reversal).
§ 101.034). The Texas Legislature has designated the Office of the Attorney General as Texas’s Title IV-D agency. See C.W.H., 531 S.W.3d at 181 (citing TEX. FAM. CODE §§ 231.001, 231.0011(a)). 4 B. Analysis
Father argued before the trial court that he struggled to schedule a de novo
hearing, due to technical issues with the court’s scheduling system. On the day
before the 29th day after he requested a de novo hearing the court convened the
hearing. The OAG objected to the hearing going forward because it had not been
provided with notice. The trial court denied father’s request for a de novo hearing
because the parties would not have proper notice before the 30-day timeline
proscribed by section 201.015(f) lapsed.
On appeal, father and the OAG agree that the trial court erred in denying the
de novo hearing because section 201.015(f) is not jurisdictional. The purpose of
section 201.015(f) is to require the prompt resolution of appeals from an associate
judge’s ruling. Harrell v. Harrell, 986 S.W.2d 629, 631 (Tex. App.—El Paso 1998,
no pet.) Failure to convene a de novo hearing prior to the 30-day limit is not
jurisdictional because section 201.015(f) is a procedural requirement for the trial
court, not the parties. In re L.R., 324 S.W.3d 885, 888–89 (Tex. App.—Austin
2010, no pet.) (citing Harrell, 986 S.W.2d at 631); Herzfeld v. Herzfeld, 285
S.W.3d 122, 130–31 (Tex. App.—Dallas 2009, no pet.). The mandatory provision
affords the parties the right to compel the district court to hear the case promptly.
Harrell, 986 S.W.2d at 631.
5 It is undisputed that father timely requested a de novo hearing and therefore,
the district court was required to hold one. The trial court reversibly erred by
denying father the de novo hearing. TEX. R. APP. P. 44.1(a).
We sustain father’s first issue on appeal. Because we find this issue
dispositive, we do not consider father’s remaining issue.
Conclusion
We reverse the judgment of the trial court and remand for further
proceedings.
Peter Kelly Justice
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