Affirmed and Majority and Concurring Opinions filed September 29, 2016.
In the
Fourteenth Court of Appeals
NO. 14-15-00925-CV
IN THE INTEREST OF R.S.T., A CHILD
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2011-54295
MAJORITY OPINION
The Office of the Attorney General of Texas (OAG) brings this restricted
appeal challenging the validity of a modified support order. Because the alleged
error cannot be determined from the face of the record, we affirm.
Factual and Procedural Background
In 2001, a Louisiana state district court issued a judgment adjudicating
Patrick Bedford as R.S.T.’s biological father and ordering Bedford to pay $152.00
in child support each month to R.S.T.’s mother. The record indicates that a notice
of registration of this Louisiana order was filed in the Texas trial court in 2011.
The notice stated that Bedford had accrued $18,394.84 in child-support arrearages
under the Louisiana order. OAG filed a motion to confirm the support arrearages,
requesting that the trial court enter judgment in favor of OAG and order Bedford to
pay the amount in arrears. The trial court granted OAG’s motion and issued its
order confirming support arrearages. The trial court confirmed that, pursuant to
Louisiana’s support order, Bedford was in arrears in the amount of $21,584.00 and
rendered judgment in favor of the Texas Attorney General for that amount. The
trial court also ordered Bedford’s employer to withhold income from Bedford’s
paychecks for payment of child-support arrearages.
Bedford filed a motion for new trial, requesting that the trial court set aside
the arrearages judgment against him. In his motion, Bedford stated that he had
asked for DNA testing in the matter because he did not believe that he was
R.S.T.’s father. The trial court granted Bedford’s motion for new trial. OAG
subsequently filed a notice of nonsuit concerning its previous motion to confirm
support arrearages.
Over two years later, Bedford filed a motion to modify child support
deductions. Bedford’s motion alleged the following:
1. The circumstances of the child or a person affected by the order
providing for the support of the child have materially and
substantially changed since the rendition of the order to be
modified and the current child support order is not in the best
interest of the child nor the father. The Court is requested to
modify the child support order to provide that child support
deductions taken from the paycheck of Respondent PATRICK
EUGENE BEDFORD be stopped.
2. The above-styled and numbered case concerning a Motion to
Confirm Arrearages was non-suited on April 3, 2012, after Mr.
Bedford was found not the biological father of the child the subject
of this suit.
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3. Despite the non-suit of the case and Respondent being not
adjudicated as father, the Attorney General’s Office continues to
deduct child support payments from Respondent’s paychecks on a
regular basis.
In his prayer, Bedford requested that the trial court order OAG to stop the
deduction of child support payments from his paycheck. The trial court held a
hearing on Bedford’s motion to modify. OAG did not participate in the hearing,
although it had previously answered and moved to dismiss Bedford’s motion.
On August 10, 2015, the trial court issued its “Order in Suit to Modify Child
Support Withholding.” The trial court found that it had jurisdiction over the case
and all parties; that no other court had continuing and exclusive jurisdiction over
the case; and that all persons entitled to citation were properly cited. The order
also stated that OAG did not appear at the hearing on the motion. Under
“Findings,” the order stated:
The Court finds that the material allegations in Respondent’s petition
to modify are true. IT IS ORDERED that the requested modification
is GRANTED, as Respondent was never properly served with citation
in regards to the claim for child support registration in Texas of the
Louisiana child support order.
It is therefore, ORDERED, ADJUDGED and DECREED that the
Harris County Auditor’s Office stop all child support arrearages
withholding regarding the above-styled case from Respondent
PATRICK EUGENE BEDFORD’S Harris County, Texas paychecks.
Eleven weeks after the court issued its order, on October 26, 2015, OAG filed a
notice of restricted appeal.
Analysis
In order to succeed on a restricted appeal, an appellant must establish that:
(1) it filed notice of the restricted appeal within six months after the judgment was
signed; (2) it was a party to the underlying lawsuit; (3) it did not participate in the
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hearing that resulted in the judgment complained of and did not timely file any
post judgment motions or requests for findings of fact and conclusions of law; and
(4) error is apparent from the face of the record. In re Marriage of Butts, 444
S.W.3d 147, 150 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing
Alexander v. Lynda’s Boutique, 134 S.W.3d 845, 848 (Tex. 2004)); see Tex. R.
App. P. 30.1 The trial court’s modification order indicates that OAG has satisfied
the first three requirements of a restricted appeal. We now consider whether OAG
has satisfied the fourth requirement by demonstrating that error is apparent from
the face of the record.
OAG’s primary argument is that the trial court did not have jurisdiction to
issue an order modifying a registered foreign support order from Louisiana.
However, it is not apparent from the record before us that the trial court’s order
was intended to modify that particular order. In fact, the trial court’s order does
not indicate which child support order associated with trial court cause number
2011-54295 it sought to modify. OAG assumes that the order seeks to modify the
Louisiana support order that it registered with the trial court in 2011. The trial
court’s modification order makes one specific finding of fact—that Bedford was
not properly served with the Louisiana support order. However, Bedford’s motion
to modify does not mention the Louisiana support order. Rather, Bedford
complains that OAG continued to deduct child support payments from his
paycheck “despite the non-suit” of the “case concerning a Motion to Confirm
Arrearages.” Bedford appears to be attacking the Texas trial court’s prior support
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“A party who did not participate—either in person or through counsel—in the hearing
that resulted in the judgment complained of and who did not timely file a postjudgment motion
or request for findings of fact and conclusions of law, or a notice of appeal within the time
permitted by Texas Rule of Appellate Procedure 26.1(a), may file a notice of appeal within the
time permitted by Rule 26.1(c).” Tex. R. App. P. 30. Rule 26.1(c) provides that notice of a
restricted appeal must be filed within six months after the judgment being appealed is signed. Id.
26.1(c).
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order, not the Louisiana support order. Because the motion to modify and the
court’s order granting the motion differ, it is not clear which support order the trial
court asserted its jurisdiction over, much less whether that jurisdiction was
erroneously asserted. OAG asks this court to infer from the conflicting motion and
order not only that the trial court modified the Louisiana support order, but also
that it erred in doing so. However, “a restricted appeal requires error that is
apparent, not error that may be inferred.” Gold v. Gold, 145 S.W.3d 212, 213
(Tex. 2004) (per curiam) (emphases in orig.). The jurisdictional error alleged
cannot be determined from the face of this record. We overrule OAG’s issue.
Conclusion
We affirm the judgment of the trial court.
/s/ Marc W. Brown
Justice
Panel consists of Chief Justice Frost and Justices McCally and Brown (Frost, C.J.,
concurring).
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