the Office of the Attorney General of Texas v. C.W.H.

531 S.W.3d 178
CourtTexas Supreme Court
DecidedOctober 20, 2017
Docket15-0944
StatusPublished
Cited by19 cases

This text of 531 S.W.3d 178 (the Office of the Attorney General of Texas v. C.W.H.) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
the Office of the Attorney General of Texas v. C.W.H., 531 S.W.3d 178 (Tex. 2017).

Opinion

Justice .Boyd

delivered the opinion of the Court.

This is .an. appeal from a Title IV-D associate judge’s order modifying conser-vatorship and child support for three children. The primary issue is whether the Title IV-D associate judge had authority to enter an order modifying conservatorship. The Legislature recently amended the Family Code to expressly grant Title IV-D associate judges such authority. The court of appeals held that Title IV-D judges had no such authority before the recent amendments. We hold that the Code’s pri- or version granted Title IV-D associate judges authority to modify conservatorship when, as here, the modification related to the establishment, enforcement, or modification of a child-support obligation.'We thus disagree with the court of appeals’ decision to reverse the associate, judge’s order on that ground. However, the court of appeals also reversed bn the independent ground that the associate judge erred by failing to consider the' children’s far ther’s request to participate .’in the hearing remotely from prison. We agree with that holding and affirm the court of appeals’ judgment solely on that ground.

I.

Background

C.W.H. (Father) and J.S. (Mother) have three children. In 2010, a Nacogdoches County district court entered a final order naming Father as the children’s sole managing conservator, having primary possession of the children and the right and duty to care for them. The same order named Mother a possessory conservator with limited visitation rights and ordered her to pay child support to Father. Later that year, Father left the children with Mother’s parents (Grandparents) and gave them a power of attorney’so that they could take care of the children. Mother soon moved in with Grandparents and began sharing that responsibility. In July 2011, Grandparents filed a motion to modify the 2010 order to name themselves as the children’s managing conservators, alleging that Father had voluntarily relinquished possession and control of the children. Grandparents apparently never pursued a 'hearing or sought any court action on their motion.

Three years, later, in 2014, the Office of the Attorney General of Texas (OAG). filed a “Notice of Change of Status and Motion for Further Orders” in, the same case. The OAG asserted that the children lived with Mother and .that .Father had voluntarily relinquished custody. The OAG requested that the court modify the, 2010 order to make “appropriate provisions for the. con-servatorship of the children” and modify the child-support obligations accordingly. 1

After the OAG filed its motion, the case was referred to the Title IV-D associate judge appointed to hear Title IV-D cases in Nacogdoches County. Father, who was then incarcerated, filed a pro-se answer objecting to modification of the 2010 order. Father asserted that he was indigent and requested that the court appoint an attorney to represent him. He also requested that the court issue a bench warrant so that he could attend any hearing in person, and alternatively asked that the court either delay any hearing until after he was released from prison or permit him to participate from prison via video, telephone, or another alternative means. Father supported his answer with an affidavit in which he admitted he had left the children with Grandparents but explained that he intended that arrangement to be temporary and never intended to relinquish custody of the children.

The Title IV-D associate judge held a hearing on the OAG’s motion on November 25, 2014. Father did not attend or participate in the hearing. Following the hearing, the associate judge entered an order appointing Mother and Grandparents as joint managing conservators. The order expressly denied Father’s request for a bench warrant, found that Father, “although duly notified, did not appear” and was currently incarcerated, and ordered Father to have no contact with the children “at this time.” Although the new order deleted the 2010 order’s requirement that Mother pay child support to Father, it did not require Father to pay child support because he was incarcerated and had no income.

The parties’ subsequent pleadings are somewhat confusing. Father refiled his original answer and affidavit on December 2, 2014. The district court then appointed counsel to represent Father. Father’s new counsel filed a motion for new trial, arguing that the Title IV-D associate judge erred by failing to grant a bench warrant or continuance or otherwise permit Father to participate in the hearing. On January 9, 2015, the OAG filed an “Original Answer” generally denying all of Father’s pleadings. On February 23, Father filed a notice of appeal from the Title IV-D associate judge’s November 25 order.

On appeal, Father argued that the associate judge abused his discretion by failing to consider Father’s request to participate in the trial remotely from prison. The OAG filed a letter conceding that the associate judge had erred in that manner. The court of appeals reversed and remanded the case, stating two independent reasons: (1) the Title IV-D associate judge had no authority to hear a motion to modify a con-servatorship order and (2) the Title IV-D associate judge erred by failing to consider Father’s request to participate in the hearing. 530 S.W.3d 682, 2015 WL 6560623.

The OAG requested our review. It agrees we should affirm the court of appeals’ judgment because the Title IV-D associate judge failed to consider Father’s request to participate in the hearing. But the OAG contends that the court of appeals erred by holding that the Title IV-D associate judge lacked authority to modify conservatorship. According to the OAG, this erroneous holding could undermine thousands of existing orders that Title IVD associate judges issued in other cases before the recent statutory amendments. In light of the OAG’s concession, we will affirm the court of appeals’ judgment on the ground that the Title IV-D associate judge failed to consider Father’s request to participate in the hearing. But we will address the court’s alternative holding that the Title IV-D associate judge lacked authority to modify conservatorship.

II.

Title IV-D Associate Judge

Subchapter IV, Part’ D of the federal Social Security Act creates a child-support-enforcement program through which the federal government provides matching funds to encourage and enable states and U.S. territories to locate noncustodial parents, establish paternity, enforce child-support obligations, recover and distribute child-support payments, and ensure “that assistance in obtaining support will be' available under this part to all children ... for whom such assistance is requested.” 42 U.S.C. § 651.

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531 S.W.3d 178, Counsel Stack Legal Research, https://law.counselstack.com/opinion/the-office-of-the-attorney-general-of-texas-v-cwh-tex-2017.