In the Interest of M.J.Z.

874 S.W.2d 724, 1994 Tex. App. LEXIS 526, 1994 WL 81552
CourtCourt of Appeals of Texas
DecidedMarch 17, 1994
Docket01-93-00220-CV
StatusPublished
Cited by17 cases

This text of 874 S.W.2d 724 (In the Interest of M.J.Z.) 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 the Interest of M.J.Z., 874 S.W.2d 724, 1994 Tex. App. LEXIS 526, 1994 WL 81552 (Tex. Ct. App. 1994).

Opinions

OPINION

OLIVER-PARROTT, Chief Justice.

Samuel Zolan (appellant), the father and possessory conservator of the child, Michael Zolan, appeals from a judgment for unpaid child support arrearage. The Texas Attorney General (appellee) brought the action to reduce unpaid child support to judgment. See Tex.Hum.Res.Code Ann. § 76.007 (Vernon Supp.1994), § 76.009 (Vernon Supp. 1994). Mr. Zolan argues the judgment should be reversed because, although the proceeding was filed within four years after his son became an adult at age 18, he was not served with citation within such period or with due diligence after the period had expired. We affirm.

Factual Background

Samuel Zolan and Elvie Zolan (now Star-rett) divorced on February 29, 1980. The decree of divorce appointed Mrs. Starrett managing conservator of their son, Michael Zolan, who was born on July 28, 1970. Mr. Zolan was ordered to pay child support of $400 per month to Mrs. Starrett.

On June 9, 1992, forty-nine days before Michael turned 22 years old, but within the four-year period after Michael’s eighteenth birthday, the attorney general filed a motion to reduce unpaid child support to judgment. According to the motion, the aggregate ar-rearage, as of May 27, 1992, was $13,743.39. Mr. Zolan was served with citation on September 22, 1992. A hearing was held on December 2, 1992.

On January 14,1993, the trial court signed a corrected judgment, finding Mr. Zolan in arrears on child support in the total sum of $13,743. The trial court signed findings of fact and conclusions of law on January 21, 1993.

Due diligence in service of citation

In his first point of error, Mr. Zolan contends the trial court erred in failing to find that the attorney general did not exercise due diligence in procuring the issuance and service of process. In his third point of error, he states the trial court committed an abuse of discretion in making the following conclusions of law because there is nothing to support a finding of due diligence on the part of the attorney general:

3. The Time Limitations prescribed in Texas Family Code Section 14.41(b) were tolled by the filing of the Motion to Reduce Unpaid Child Support to Judgment within four years after the child Michael J. Zolan became an adult and the use of due diligence by the Attorney General of Texas in securing service over the Respondent, Samuel G. Zolan.
4. All legal prerequisites to the granting of a money judgment have been met.
5. The Attorney General of Texas is awarded a judgment for past-due child support against Samuel G. Zolan in the amount of $13,743.00, together with interest at the legal rate.

The attorney general responds that there is ample evidence in the record that diligence was exercised in procuring service of citation upon Mr. Zolan. Furthermore, he contends that section 14.41 is a jurisdictional statute, and the tolling rules, such as diligence, typi[726]*726cally applied to statutes of limitation, do not apply to section 14.41.

Section 14.41(b) of the Family Code reads as follows:

(b) Time Limitations. The court of continuing jurisdiction retains jurisdiction to confirm the total amount of child support in arrears and enter judgment for past-due child support obligations if a motion to render judgment for the arrearages is filed within four years after:
(1) the child1 becomes an adult; or
(2) the date on which the child support obligation terminates pursuant to the decree or order or by operation of law.

Tex.Fam.Code Ann. § 14.41(b) (Vernon Supp. 1994).2

We agree with the attorney general that section 14.41(b) should not be subject to a due diligence analysis. Unlike statutes of limitation, it is jurisdictional in nature. Section 14.41(b) clearly defines the continuing subject matter jurisdiction of the trial court. In re C.L.C., 760 S.W.2d 790, 792 (Tex.App.—Beaumont 1988, no writ); Sandford v. Sandford, 732 S.W.2d 449, 451 (Tex.App.—Dallas 1987, no writ); see In re Dickinson, 829 S.W.2d 919, 922 (Tex.App.—Amarillo 1992, no writ); Jordan v. Middleton, 762 S.W.2d 339, 342 (Tex.App.—San Antonio 1988, no writ). Unlike a statute of limitations, the four-year period contained in section 14.41(b) does not run from the accrual of a cause of action, but starts to run from the time the court’s jurisdiction would normally end. TexFam.Code Ann. § 14.41(b). The statute, therefore, expands the period of the court’s jurisdiction over the parent-child relationship and mitigates the earlier results where jurisdiction ended on the date when a child turned 18 or was emancipated. C.L.C., 760 S.W.2d at 792.

Because section 14.41(b) addresses a court’s jurisdiction, tolling rules typically applied to statutes of limitations do not apply to section 14.41(b). See C.L.C., 760 S.W.2d at 792 (appellate court found running of two-year period not suspended under Tex.Civ. Peac. & Rem.Code Ann. § 16.063, which applies only to statutes of limitation). Conceptually, an attempt to collect child support arrearage is different than the filing of a cause of action for money damages. The latter is subject to the traditional two- or four-year statutes of limitation to give the defendants reasonably prompt notice of a potential claim. An action for child support, however, is a motion filed in a matter over which the court has continuing jurisdiction. The Beaumont court, calling the statute jurisdictional, concluded that section 14.41(b) could not be tolled by a defendant’s absence from the State. C.L.C., 760 S.W.2d at 792. It is analogous that the existence or absence of due diligence, like presence within the State, is not a valid or relevant inquiry.

The language of section 14.41(b) uses the word “filings” rather than the phrase, “bringing suit.” Most statutes of limitations require a plaintiff to “bring suit” within a relevant limitation period. See, e.g., TexCiv. Prac. & Rem.Code Ann. §§ 16.002-16.004 (Vernon 1986). The supreme court interprets the phrase “bring suit” to require that a plaintiff not only file suit within the limitations period, but use diligence in serving a defendant with process. Gant v. DeLeon, 786 S.W.2d 259, 260 (Tex.1990). In contrast, the phrase “bring suit” does not appear in section 14.41(b). Instead, section 14.41(b) simply requires that a motion to render judgment for arrearages be “filed.”

Mr. Zolan agrees that the motion to reduce unpaid child support to judgment was timely filed on June 9, 1992. Further, Mr. Zolan does not challenge the trial court’s [727]*727conclusion of law number two, that the court had jurisdiction over the parties and subject matter of the action.

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Bluebook (online)
874 S.W.2d 724, 1994 Tex. App. LEXIS 526, 1994 WL 81552, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-mjz-texapp-1994.