DISMISS and Opinion Filed October 23, 2013
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-13-01196-CV
IN THE INTEREST OF J.L.H., A CHILD
On Appeal from the 330th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-93-2714
MEMORANDUM OPINION
Before Justices FitzGerald, Francis, and Myers
Opinion by Justice FitzGerald
In a letter dated September 19, 2013, the Court questioned its jurisdiction over this
appeal. Specifically, it appears the order being appealed is not a final, appealable order. We
instructed the parties to file jurisdictional briefs addressing our concern.
Appellant is appealing the associate judge’s order awarding child support arrearages
signed on July 24, 2013. The associate judge conducted a hearing, but it was not recorded. Prior
to the hearing, the parties signed a written agreement that if either party wished to appeal the
associate judge’s ruling, the appeal would be taken directly to this Court and not to the referring
court.1 At the hearing, the parties informed the associate judge of their agreement. In his brief,
appellant contends that he objected when no reporter was available to record the hearing. In his
reply brief, appellant states that the parties’ waiver agreement was contingent upon the hearing
1
The agreement was not filed with the trial court until August 6, 2013.
being recorded. The associate judge’s order does not mention the parties’ waiver of a de novo
review before the referring court. Despite the waiver agreement, appellant timely filed a request
with the referring court for a de novo hearing. Appellant contends the associate judge considered
the agreement void. Appellee counters that the parties effectively waived their right to a de novo
hearing. For reasons set forth below, we conclude the order appealed is not final regardless of
the status of the waiver agreement.
We have jurisdiction to consider an appeal from a final order rendered under Title 5 of
the Family Code, which includes orders on child support. See TEX. FAM. CODE ANN.
§ 109.002(b) (West Supp. 2012); Brejon v. Johnson, 314 S.W.3d 26, 33 (Tex.App.—Houston
[1st Dist.] 2009, no pet.). With the exception of certain limited circumstances not applicable to
this case, an associate judge does not have the power to render a final judgment. See TEX. FAM.
CODE ANN. § 201.007(a)(14) & (a)(16) (West 2008).
The family code provides that, if the right to a de novo hearing is waived, “the proposed
order or judgment of the associate judge becomes the order or judgment of the referring court
only on the referring court’s signing the proposed order or judgment.” See TEX. FAM. CODE
ANN. § 201.013(b) (West 2008). Moreover, if a party timely requests a de novo hearing, the
referring court must conduct a hearing. See TEX. FAM. CODE ANN. § 201.015(f) (West Supp.
2012).
In his jurisdictional brief, appellant acknowledges the statutory requirement that the
referring judge must sign the order. He states that “no one in the office of the clerk of the 330th
Family District Court seems to be aware of this statutory requirement.” In her jurisdictional
brief, appellee agrees that “this case sits in limbo” because the parties waived their right to a de
novo hearing and the referring court has not signed the associate judge’s order.
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Thus, assuming the parties’ waiver agreement is valid, the associate judge’s order is not
final because it has not been signed by the referring court. See TEX. FAM. CODE ANN.
§ 201.013(b) (West 2008). On the other hand, assuming the parties’ waiver agreement is invalid,
appellant timely requested a de novo hearing with the referring court and that court must hold a
hearing. See TEX. FAM. CODE ANN. § 201.015(f) (West Supp. 2012). Either way, further action
is needed by the referring court, whether that be the referring court’s signature on the associate
judge’s order or a de novo hearing before the referring court. Because the associate judge’s
order is not final, this Court lacks jurisdiction. Accordingly, we dismiss the appeal for want of
jurisdiction. See TEX. R. APP. P. 42.3(a).
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
131196F.P05 JUSTICE
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF J.L.H., A CHILD On Appeal from the 330th Judicial District
Court, Dallas County, Texas.
No. 05-13-01196-CV V. Trial Court Cause No. DF-93-2714.
Opinion delivered by Justice FitzGerald.
Justices Francis and Myers, participating.
In accordance with this Court’s opinion of this date, the appeal is DISMISSED.
It is ORDERED that appellee, Frances Reese, recover her costs of this appeal from
appellant, John Lee Huffer.
Judgment entered October 23, 2013
/Kerry P. FitzGerald/
KERRY P. FITZGERALD
JUSTICE
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in the Interest Of: J.L.H., Minor Child
Combined Opinion