in the Interest of T.P.H

Opinion

Opinion issued May 5, 2011

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-01021-CV

____________

IN THE INTEREST OF T.P.H.

On Appeal from the 247th District Court

Harris County, Texas

Trial Court Cause No. 2006-34331

MEMORANDUM OPINION

          Appellant, Phillip Hudgens, challenges the trial court’s “Order Confirming Non-Agreed Child Support Review Order.”   In his sole issue, Hudgens contends that the trial court erred in modifying a previously-entered child-support order without him “being aware” of the court setting at which the order was entered.     

We affirm.       

Background

           On December 13, 2006, the trial court entered a final decree of divorce dissolving the marriage of Hudgens and his ex-wife, Lacey Priddy.  In its decree, the trial court found Hudgens’s monthly net resources to be $2,124, and it ordered Hudgens to pay child support in the amount of $425 per month, or 20% of his resources.  On July 22, 2009, Hudgens and Priddy attended a child-support-review-order negotiation conference pursuant to proceedings filed by the Texas Attorney General.[1]  Because the parties did not agree to a modified child-support-review order, the Attorney General prepared a non-agreed child-support-review order.  However, the trial court did not enter the order at the time of its presentment.

Subsequently, Hudgens signed a waiver of service and an “agreement to appear in court,” in which he acknowledged having received the Attorney General’s petition for confirmation of the non-agreed child-support-review order.  Hudgens entered his “appearance in said cause for all purposes,” waived service of process, and agreed to appear before the trial court on September 24, 2009 “to address all unresolved issues.”  Hudgens also stated that he understood that his failure to appear could result in the entry of a default order.

          On October 26, 2009, the trial court signed its order confirming the non-agreed child-support-review order, stating that it had considered the Attorney General’s petition and there had been no request to contest the confirmation of the non-agreed child-support-review order that had been prepared after the unsuccessful negotiation conference.  The trial court ordered that the non-agreed child-support-review order was “confirmed as the order of the court,” and it found that the order was in the best interest of the child.  In the non-agreed child-support-review order, the trial court found that there had been a “material and substantial change in the circumstances of the child or parties” or it had been three years since the order was rendered or modified and the amount of the child-support award “differed by either 20% or $100” from the amounts that would be awarded under the guidelines.[2]  The trial court modified Hudgens’s child-support obligation and ordered Hudgens to pay child support of $1,394 per month.  Within this order, the trial court found that Hudgens’s net monthly resources were $6,972.45 and that 20% of these resources should be paid as child support.  The trial court also attached to its order the waiver of service signed by Hudgens.  Hudgens did not file a motion for new trial.   

Default

In his sole issue, Hudgens argues that the trial court erred in increasing his child-support obligation because he was not “aware” of a court setting “to review [the] matter.”  Hudgens asks that we “reset a court date” so that the trial court may consider his evidence of an agreement that he had previously reached with Priddy regarding his child-support obligation.

In his brief, Hudgens asserts that before the trial court setting, he and Priddy had entered into a separate oral agreement regarding his modified child-support obligation. He asserts that they later recorded this oral agreement into a written agreement that they signed before a notary.  According to Hudgens, Priddy agreed that she would notify the Attorney General’s office that they had reached an agreement and she would cancel the hearing date.  However, Priddy subsequently appeared for the hearing, the trial court held Hudgens in default, and the trial court increased his child-support obligation without his ability to “defend, negotiate, or compromise.”

Hudgens attaches to his appellant’s brief a copy of what purports to be a copy of this agreement, which is entitled a “Revised Child Support Order.”  The document reflects that both Hudgens and Priddy signed it on December 5, 2009, after the entry of the non-agreed child-support-review order.  This “Revised Child Support Order” is also notarized.  In this “Revised Child Support Order,” the parties recited that Hudgens would be obligated to pay child support of $500 per month and an additional “20% of any extra pay/allowances or offshore pay.”

The record contains the waiver of service signed by Hudgens as well as his “agreement to appear in court” at a September 24, 2009 hearing.  Hudgens expressly acknowledged that his failure to appear could result in the entry of a default order.  In his brief, Hudgens does not directly attack this record evidence or suggest that he did not have notice of the originally scheduled hearing.  Rather, his argument is based solely upon his assertion that he and Priddy had previously agreed to cancel the September hearing and Hudgens would pay increased child support in accord with the terms of their agreed upon “Revised Child Support Order.” 

Hudgens asks that we “reset” the matter for a hearing in the trial court in light of the “Revised Child Support Order” that he attaches to his appendix.  However, Hudgens did not file a motion for new trial, and there is nothing in the record to substantiate the assertions of fact in his appellant’s brief.  “A point in a motion for new trial is a prerequisite to . . . a complaint on which evidence must be heard such as . . . [a] failure to set aside a judgment by default[.]”  See Tex. R. Civ. P. 324(b)(1); see also Massey v. Columbia State Bank, 35 S.W.3d 697, 699 (Tex. App.—Houston [1st Dist.] 2001, pet. denied).  Moreover, we cannot consider the order attached to his appendix because it does not appear in the record.  See Till v. Thomas, 10 S.W.3d 730, 733–34 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (noting that documents that appear solely in appendix of brief are not part of record and are generally not considered on appeal).  The record establishes that the trial court was never made aware of any agreed “Revised Child Support Order” before entering the non-agreed child-support-review order.  Accordingly, we hold that the trial court did not err in entering the non-agreed child-support-review order.

We overrule Hudgens’s sole issue.

Conclusion

          We affirm the order of the trial court. 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Higley, and Brown.

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[1]               See Tex. Fam. Code Ann. §§ 233.001–.029 (Vernon 2009).

[2]               See id. § 156.401 (Vernon 2008), § 233.013.