in the Interest of L. D. C., a Child ( 2018 )

NUMBER 13-17-00053-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF L.D.C., A CHILD
On appeal from the County Court at Law No. 7
of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Contreras, Benavides, and Longoria
Memorandum Opinion by Justice Benavides
Appellant J.C.C.1 appeals the trial court’s judgment for child support arrearages
and sanctions on six grounds that we construe as four. J.C.C. argues that: 1) the
judgment failed to comply with portions of the federal regulations governing child support;
2) the judgment is void because the Title IV-D court had exclusive jurisdiction over child
1 To protect the identity of the minor child who is the subject of this appeal, we refer to the parties
by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw 2017 through 1st C.S.); TEX. R.
APP. P. 9.8.
support cases brought by the attorney general; 3) his procedural due process rights were
violated when the case was transferred from the Title IV-D court to the trial court; and 4)
the trial court abused its discretion by denying J.C.C. legal representation after he invoked
his right to counsel. We affirm.
I. BACKGROUND
J.C.C. and his former wife L.S. were divorced in 2004. A final divorce decree was
rendered by Hidalgo County Court at Law No. 4 (Court 4) in Cause No. F-1068-02-4.
The decree established that J.C.C. and L.S. are the parents of L.D.C. and ordered J.C.C.
to pay $1000 per month in child support to L.S. and $10,000 in retroactive child support
before August 20, 2006. In addition to child support, J.C.C. was also ordered to pay
specified lump sums to L.S. in 2004 and 2005 as part of their community property
settlement.
In March 2012, L.S. filed a petition to modify the parent-child relationship that was
assigned to Hidalgo County Court at Law No. 7 (Court 7), Cause No. F-1068-02-7. L.S.
sought a temporary restraining order, temporary injunction, modification of possession of
L.D.C., and attorney’s fees and costs. Court 7 granted a temporary restraining order
and scheduled a hearing. J.C.C. filed an answer and subsequently a counter-petition.
The parties engaged in discovery. In April 2012, appellee, the Office of the Attorney
General (OAG), intervened in the suit seeking orders for enforcement of J.C.C.’s child
and medical support. As part of its intervention, the OAG sought discovery to establish
J.C.C.’s ability to pay child support. In January 2013, L.S. filed a motion for sanctions
and a request for immediate payment of child support. L.S. and J.C.C. filed more than
twenty pleadings and motions between March 2012 and March 2013 all assigned to Court
2
7. At some point J.C.C. filed for bankruptcy.2
In May 2016, four years after the OAG’s intervention, there was a hearing in Master
Court No. 1, a Title IV-D court, in Cause No. F-1068-02-7, before an associate judge on
the OAG’s motion to confirm J.C.C.’s child support arrears and for modification of the
amount of child support. J.C.C. and the OAG appeared through counsel. L.S.
appeared without counsel. During the hearing, J.C.C. claimed that he made $124,000
in direct payments to L.S. and had overpaid his child support. The OAG proffered a
ledger of the registry payments made of approximately $19,000 and its calculation of
arrearage totaling more than $100,000. L.S. provided an affidavit of direct payments
received in the amount of $3600. Based upon the cancelled checks J.C.C. produced in
support of his claim of direct payments, the OAG agreed that there might be no child
support due. L.S. produced the divorce decree and advised the judge that some of the
payments J.C.C. made and sought credit for were for amounts due as part of the
community property in the divorce, not child support. The associate judge then returned
the case to Court 7 to determine whether amounts J.C.C. claimed credit for were for
community property payments under the decree or were direct child support payments.
The OAG also informed the associate judge that J.C.C. failed to bring the wage
information necessary for the OAG’s motion to modify.
At the next hearing on August 4, 2016 in Court 7, L.S. and the OAG appeared
through counsel. Neither J.C.C. or his attorney were present. The case was reset to
2 J.C.C. alleges in his brief that he filed bankruptcy in October 2011, but there is nothing in the trial
court’s record to support that date. L.S. also mentioned his bankruptcy in her motion for immediate
payment of child support filed in January 2013.
3
for the following week. L.S. and the OAG appeared through counsel; J.C.C. was present
and advised the trial court that his attorney was in trial in another matter. Counsel
appeared later. The trial court reviewed its jurisdiction and determined that the following
motions were pending: the OAG’s motion to confirm arrears and to modify, J.C.C.’s
motion to confirm the arrears, and L.S.’s motion for sanctions, all of which related to the
issue of past due medical and child support. Counsel for J.C.C. stated that the motion
to modify “goes towards . . . a separate issue of his ability or non-ability rather to pay at
the current moment.” After a discussion, the parties agreed to reset the matter so that
L.S. could obtain discovery regarding J.C.C.’s finances and J.C.C.’s counsel could
complete his trial. The trial court set a status hearing and subsequent trial.
At the status hearing a month later, L.S. and the OAG appeared through counsel
and J.C.C. appeared pro se. J.C.C. announced he would like to have time to obtain
counsel. The trial court reset the hearing for October 25, 2016 on the motion to confirm
arrearages and L.S.’s motion for sanctions.
Before the October 25 hearing, J.C.C. filed a plea to the jurisdiction, a motion to
stay the proceedings, and a motion to strike L.S.’s 2013 motion for enforcement. In his
motion to stay, J.C.C. argued that the trial court should request identification of the court
of exclusive continuing jurisdiction from the state vital statistics unit and proceedings
should be stayed until the information was obtained. TEX. FAM. CODE ANN. § 155.101
(West, Westlaw 2017 through 1st C.S.). As part of that motion, J.C.C. also sought a
continuance to allow his accountant to review the OAG ledger and cancelled checks. In
his plea to the jurisdiction, J.C.C. sought a transfer to Court 4. His motion to strike
alleged that the present action was filed in the wrong court and should have been filed in
4
Court 4.
J.C.C. appeared pro se for trial. After hearing J.C.C.’s arguments, the trial court
denied his motions, including the motion for continuance. Although J.C.C. requested a
jury trial in April 2012 and paid the jury fee, he did not object to proceeding without a jury.
The trial court permitted J.C.C. to telephone his accountant who came and testified that
he had not performed any work on the ledger due to the press of other deadlines and had
formed no opinion regarding the accuracy of the OAG’s ledger. The trial court struck his
testimony. J.C.C. was cross-examined by counsel for L.S. He did not claim that he
was unable to pay the arrearage. The trial court orally rendered judgment that J.C.C.
owed $111,588.08 in past due child support as of October 1, 2016, to be paid at the rate
of $700 per month in addition to the previously ordered $1,000 per month child support,
$2,500 in sanctions payable to L.S., and $10,000 in attorney’s fees to L.S.’s counsel.
The trial court set a hearing on entry of judgment on November 10, 2018, at which L.S.
appeared through counsel and J.C.C. appeared pro se. The trial court signed a written
judgment consistent with its oral pronouncement. J.C.C. appealed.3
II. JURISDICTION
We address issues two, three, and four, first because J.C.C. complains that the
trial court lacked authority to issue the judgment that he claims is void. He argues that
the Title IV-D associate judge had exclusive jurisdiction and his former wife’s objection to
the associate judge of the Title IV-D court was overruled as a matter of law. Effectively,
3 J.C.C. filed a motion to stay enforcement on appeal based upon his bankruptcy. The appeal
was abated on April 6, 2017. The case was reinstated on October 18, 2017, after the OAG provided this
Court a copy of the bankruptcy court’s order discharging J.C.C. from bankruptcy in December 2012.
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J.C.C. challenges Court 7’s subject matter jurisdiction.
The proceedings in this case began in Court 4 which heard the 2004 divorce and
established custody and support of L.D.C. in Cause No. F-1068-02-4, and Court 4 as the
court of continuing, exclusive jurisdiction. See TEX. FAM. CODE ANN. § 155.001(a) (West,
Westlaw 2017 through 1st C.S.); In re C.G., 495 S.W.3d 40, 43 (Tex. App.—Corpus
Christi 2016, pet. denied).
As part of a group of family law cases, Cause No. F-1068-02 was reassigned to
Hidalgo County Court at Law No. 6 by agreement of the judges in January 2007.4 On
November 15, 2011, the case was transferred again by agreement of the judges to the
newly formed Court 7. When L.S. filed a petition to modify the parent-child relationship
in 2012, the case was assigned to Court 7 as the court of continuing jurisdiction. The
case remained in Court 7 until March 24, 2016, when an associate judge of the Title IV-
D court held a hearing on the OAG’s motion to confirm arrears and for modification. The
associate judge sent the parties back to Court 7. Court 7 referred the matter back to the
associate judge. L.S.’s attorney objected to the referral and requested a status hearing
in Court 7. The remaining hearings were in Court 7. J.C.C. did not object to proceeding
in Court 7 until the hearing on October 25, 2016. J.C.C. filed a plea to the jurisdiction in
which he alleged that “[t]he statutory jurisdictional prerequisite has not been met in this
4 The Local Rules of Hidalgo County District Court provide:
1.2.1 Agreement. Any case may be transferred from one court to another by written Order
of the Presiding Judge or by written Order of the judge of the court from which the case is
transferred; provided in that latter instance the transfer must be with the written consent of
the court to which the case is transferred.
L. R. 1.21 (1999).
6
cause.”
A. Standard of Review
“‘Jurisdiction’ refers to a court’s authority to adjudicate a case.” Reiss v. Reiss,
118 S.W.3d 439, 443 (Tex. 2003); Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex.
2000). An order is void only if the court rendering it had no jurisdiction of the parties, no
jurisdiction of the subject matter, no jurisdiction to enter the judgment, or no capacity to
act as a court. See Mapco, Inc. v. Forrest, 795 S.W.2d 700, 703 (Tex. 1990); In re
Whitcomb, 35 S.W.3d 220, 221 (Tex. App.—Corpus Christi 2000, no pet.). Whether a
trial court has subject-matter jurisdiction is a question of law that we review de novo.
Minton v. Gunn, 355 S.W.3d 634, 639 (Tex. 2011) (citing City of Dallas v. Carbajal, 324
S.W.3d 537, 538 (Tex. 2010)); In re C.G., 495 S.W.3d at 43.
B. Family Code and Exclusive Jurisdiction
The Texas Constitution and statutes confer jurisdiction on Texas courts. See
TEX. CONST. art. V, § 8 (establishing district courts as courts of general jurisdiction); TEX.
GOV’T CODE ANN. §§ 24.007, 24.008, 25.1102 (West, Westlaw 2017 through 1st C.S.)
(granting Hidalgo county courts concurrent jurisdiction in family law cases with district
courts). “Judicial power” is the power of a court to decide and pronounce judgment and
carry it into effect between parties who bring the case before it for decision, Morrow v.
Corbin, 62 S.W.2d 641, 644 (Tex. 1933), and is divided among various named courts by
means of express grants of “jurisdiction.” TEX. CONST. art. V, § 1 5 ; Eichelberger v.
5The judicial power of this State shall be vested in one Supreme Court, in one Court of
Criminal Appeals, in Courts of Appeals, in District Courts, in County Courts, in
Commissioners Courts, in Courts of Justices of the Peace, and in such other courts as may
be provided by law.
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Eichelberger, 582 S.W.2d 395, 398 (Tex. 1979). “When the constitution expressly
grants jurisdiction over a particular subject matter to a particular court and not to another,
then it is presumed that the jurisdiction so conferred is exclusive.” Eichelberger, 582
S.W.2d at 398.
The family code provides that a court that has rendered final judgment in a SAPCR
becomes the court of “continuing, exclusive jurisdiction” of suits involving minor children.
See TEX. FAM. CODE. ANN. § 155.002 (West, Westlaw 2017 though 1st C.S.). The court
of continuing, exclusive jurisdiction retains that jurisdiction until a case is transferred
under the provisions of the family code or pursuant to a docket equalization order. Id.
§§ 155.004, 155.102 (West, Westlaw 2017 though 1st C.S.); In re G.R.M., 45 S.W.3d
764, 769–70 (Tex. App.—Fort Worth 2001, no pet.) (concluding that exchange of cases
between district courts for docket equalization purposes is not prohibited by chapter 155
of the family code.); see also Ward v. Ward, No. 09-17-00024-CV, 2017 WL 6062133, at
*4 (Tex. App.— Beaumont Dec. 7, 2017, pet. filed) (mem. op.).
But when the OAG intervenes in a case or sues in a county that has a Title IV-D
court, such cases are automatically transferred to the Title IV-D court. TEX. FAM. CODE.
ANN. § 201.101(d) (West, Westlaw 2017 through 1st C.S.); Office of the Attorney General
of Tex. v. C.W.H., 531 S.W.3d 183 (Tex. 2017). An associate judge of a IV-D court may
refer a complex case back to a referring court. Id. § 201.104(a) (West, Westlaw 2017
The Legislature may establish such other courts as it may deem necessary and prescribe
the jurisdiction and organization thereof, and may conform the jurisdiction of the district
and other inferior courts thereto.
TEX. CONST. art V, § 1.
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through 1st C.S.). An associate judge may not issue a final judgment. Id. § 201.104(b).
But if the associate judge’s recommended order is not appealed to the referring court, the
associate judge’s order becomes final at that time. See Id. § 201.1041(a) (West,
Westlaw 2017 through 1st C.S.).
C. Discussion
J.C.C. argues that the Title IV-D court had exclusive jurisdiction over cases in
which the OAG is involved based upon the Hidalgo County local rules or general orders.
However, violation of a procedural rule in the assignment of a case to a court that
otherwise has subject matter jurisdiction does not deprive the court to which the case is
assigned of jurisdiction. See Reiss, 118 S.W.3d at 443; see also TEX. R. CIV. P. 330(e);
In re G.A.J., No. 01-12-00256-CV, 2012 WL 4857925, at *3 (Tex. App.—Houston [1st
Dist.] Oct. 11, 2012, no pet.) (mem. op.) (overruling claim that judgment was void when
case was transferred in violation of local procedural rule).
Court 7 was the court of continuing, exclusive jurisdiction and had the authority
granted by the Texas Constitution and the government code to render judgment on the
child support arrearage and sanctions. In Court 7, J.C.C. claimed Court 4 was the court
of continuing jurisdiction and should have heard the child support arrears issue, unlike his
present argument that the Title IV-D court had exclusive jurisdiction. J.C.C.’s objection
in the trial court does not comport with his issue on appeal. As a result, he did not
preserve error. See TEX. R. APP. P. 33.1(a)(1); In re M.M.W., 536 S.W.3d 611, 613 (Tex.
App.—Texarkana 2017, no pet.); Watts v. Watts, 396 S.W.3d 19, 23 (Tex. App.—San
Antonio 2012, no pet.). We overrule J.C.C.’s issues two, three, and four.
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III. FEDERAL REGULATIONS
By his first issue, J.C.C. argues that the judgment does not comport with federal
regulations that set standards for setting and enforcing child support because the trial
court never determined his ability to pay child support as ordered, which is one of the
issues addressed by the federal regulations. See 45 C.F.R. §§ 302.56, 303.6(c)(4)
(Westlaw 2018). Although J.C.C. filed a counter-petition in April 2012 seeking joint
custody and primary possession of L.D.C., he did not raise an inability to pay child support
in that pleading, nor did he raise that issue during the bench trial on arrearages.
Because J.C.C. did not raise the applicability of the federal regulations in the trial court or
raise the issue of his alleged inability to pay the arrearages, he has waived both issues.
See TEX. R. APP. P. 33.1. We overrule J.C.C.’s first issue.6
IV. DUE PROCESS
By his fifth issue, J.C.C. argues that his due process rights were violated because
he was deprived of a jury trial and the case was transferred from the Title IV-D court to
Court 7. J.C.C. requested a jury trial in 2012 and paid a jury fee.
A. Jury Trial
Even when a party timely requests a jury trial and pays the fee, the party is required
to object to proceeding without a jury. Failure to object constitutes waiver. In re M.P.B.,
257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no pet.); Vardilos v. Vardilos, 219 S.W.3d
920, 923 (Tex. App.—Dallas 2007, no pet.) (holding jury waived when litigant did not bring
6 Even if J.C.C. had not waived this issue, there is no private right of action under these statutes.
See Blessing v. Freestone, 520 U.S. 329, 343–45 (1997); see also Wehunt v. Ledbetter, 875 F.2d 1558,
1565–66 (11th Cir. 1989); Culliver v. Taylor, 503 F.3d 397, 408 (5th Cir. 2007) (holding “[t]hese regulations
simply do not purport to create an individual federal right in beneficiaries.”); Office of the Atty Gen. of Tex.
v. C.W.H., 531 S.W.3d 178, 184 (Tex. 2017).
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jury request to trial court’s attention); see also Martinez v. Martinez, No. 04-09-00568-CV,
2010 WL 2601686, at *1 (Tex. App.—San Antonio June 30, 2010, pet. denied) (mem. op.)
(reversing denial of jury trial after party brought jury demand to trial court’s attention and
trial court conducted bench trial); Walker v. Walker, 619 S.W.2d 196, 197–98 (Tex. App.—
Tyler 1981, writ ref’d n.r.e.) (holding that when a party “comes into court and enters upon
a hearing before the court without objection and calls upon the court to decide an issue
of fact, he waives his right to a jury by entering upon the hearing without complaint.”).
J.C.C. was silent when the trial court set the matters for bench trial and at the trial
itself. As a result, he waived his right to a jury trial. TEX. R. APP. P. § 33.1(a)(1)(A).
B. Transfer from Title IV-D Court to Court 7
J.C.C. further argues that the statutory scheme involving Title IV-D matters
requires an initial trial before the associate judge and then a de novo trial before the
referring court, if desired. J.C.C. complains he lost his right to a second trial when the
Title IV-D associate judge sent the case back to the referring court, which he argues
violated his due process rights.
The Fourteenth Amendment of the United States Constitution protects against
deprivation of life, liberty, or property by the state “without due process of law.” U.S.
CONST. amend XIV; Parratt v. Taylor, 451 U.S. 527, 537 (1981). “The opportunity to be
heard is the fundamental requirement of due process; it is an opportunity which must be
granted at a meaningful time and in a meaningful manner.” Covarrubias v. Tex. Dep’t.
of Crim. Justice-Inst. Div., 52 S.W.3d 318, 324 (Tex. App.—Corpus Christi 2001, no pet.)
(citing Parratt, 451 U.S. at 540). Evaluating procedural due process is a two-step
process. Id. First, we must determine whether an existing liberty or property interest
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was interfered with, and secondly, we determine whether the procedures were
constitutionally sufficient. Id.J.C.C. had a protected property interest in the monies that could be used to satisfy
the alleged child support arrearage. “What process is due is measured by a flexible
standard that depends on the practical requirements of the circumstances.” Univ. of
Tex. Med. Sch. at Houston v. Than, 901 S.W.2d 926, 930 (Tex. 1995) (citing Mathews v.
Eldridge, 424 U.S. 319, 333 (1976)). Mathews dictates a three-factor inquiry to
determine what process is due: 1) the private interest affected by the proceeding or official
action; 2) the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural safeguards;
and 3) the government’s interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would
entail. Id. (citing Mathews, 424 U.S. at 335); see also In re B.L.D., 113 S.W.3d 340, 352
(Tex. 2003).
J.C.C. was given notice of the allegations of unpaid child support and provided
with the OAG’s evidence in 2012, four years before the bench trial. At an initial hearing,
J.C.C.’s attorney presented evidence of direct payments to L.S. to reduce his alleged
arrearage, but because there was a factual dispute regarding interpretation of the divorce
decree, the associate judge sent the matter back to Court 7. Several hearings were held
in Court 7 at which J.C.C. appeared with and without counsel. At the final setting, he
had the right to present evidence and to challenge the evidence presented against him.
J.C.C. invokes the statutory procedures in the family code that include a de novo
review by the referring court. Those procedures were developed to speed the
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determination of child support and other issues necessary to protect and provide for
children pursuant to Title IV-D by using associate judges. See C.W.H., 531 S.W.3d at
183–85 (discussing the purpose, history, and breadth of Title IV-D). However, the right
to a trial de novo before an elected judge was designed to conform the proceedings to
the constitutional grant of powers to the judiciary. See In re D.L.M., 982 S.W.2d 146,
148 (Tex. App.—Houston [1st Dist.] 1998, no pet.). Associate judges are creatures of
statute and are not vested with the authority to render a final order under the Texas
Constitution. See TEX. CONST. art. V, § 1; TEX. FAM. CODE ANN. § 201.104(b).7
Although J.C.C. has a private protected property interest in the funds that he may
be required to use to satisfy child support arrears, the risk of erroneous deprivation using
the full range of usual judicial procedures is minimal, and the probable value of two full
trials on the merits in preventing an erroneous deprivation is also minimal. The
government’s interest in promptly determining support of children and minimizing
unnecessary expenditure of public funds is substantial and supports the use of associate
judges to speed the process, but the use of standard judicial procedures in this case does
not mean that J.C.C. was deprived of due process. C.W.H., 531 S.W.3d at 181. In the
unusual case in which an associate judge has referred a complex case back to the
referring court, the referring court should not be required to send it back on due process
grounds solely to allow a litigant two bites at the apple. The likelihood of a different result
than was obtained here or in other similar cases is minimal. J.C.C. received the full
“A master may render and sign any order that is not a final order on the merits of the case.” TEX.
7
FAM. CODE ANN. § 201.104(b) (West, Westlaw 2017 through 1st C.S.).
13
extent of judicial process and his due process rights were not violated because the court
of continuing, exclusive jurisdiction rendered the order for payment of child support
arrears in the first instance, rather than the Title IV-D court. We overrule J.C.C.’s fifth
issue.
V. APPOINTMENT OF COUNSEL
By his sixth issue, J.C.C. appears to claim that he was entitled to appointed
counsel at the hearing to confirm arrearages even though he was not subject to
imprisonment for contempt. He cites Turner v. Rogers in support. 564 U.S. 431 (2011).
Turner is a civil contempt case in which the indigent father was sentenced to twelve
months’ imprisonment. Although the Turner Court reversed and remanded the case, it
held that Turner was not categorically entitled to representation. Id. at 448-49.
Under the Fourteenth Amendment, the right to counsel is determined on a case-
by-case basis in the court’s exercise of sound discretion. Ex parte McIntyre, 730 S.W.2d
411, 415 (Tex. App.—San Antonio 1987, no writ) (en banc) (citing Middendorf v. Henry,
425 U.S. 25, 42–44 (1976)). Texas provides for appointment of counsel in some civil
and family law cases. See TEX. FAM. CODE ANN. §§ 107.021, 157.163(d), (e) (West,
Westlaw 2017 through 1st C.S.); see also TEX. GOV’T CODE ANN. §§ 24.016, 26.049
(West, Westlaw 2017 through 1st C.S.). When a party against whom child support
enforcement is sought is not subject to contempt, the trial court is not required to
admonish the party that he has the right to appointed counsel. See TEX. FAM. CODE ANN.
§ 157.163(d), (e) (emphasis added); see also Villarreal v. Villarreal, No. 14-03-00577-CV,
2004 WL 1381025, at *2 (Tex. App.—Houston [14th Dist.] June 22, 2004, no pet.) (mem.
op.) (holding “a defendant in a suit filed to reduce unpaid child support to judgment is not
14
entitled to be so advised [of his right to counsel] absent a threat of incarceration.”).
At the enforcement hearing, the trial court was aware that J.C.C. was appearing
pro se. J.C.C. announced partway through the hearing, “the Court knows that I’m pro
se and that I have no legal representation. So I just want to state that for the record.”
At that time J.C.C. did not request that the trial court appoint counsel, nor did he claim he
was indigent. Later during the hearing, while J.C.C. was being questioned by counsel
for his former wife, J.C.C. said, “[a]nd whatever time is proper I would like to invoke my
right to a public defender if this is leading towards —.” At that time the trial court
confirmed with opposing counsel that there was no motion for contempt or imprisonment
pending. The Court responded, “[h]e’s not entitled to counsel then.”
J.C.C.’s due process rights under the Fourteenth Amendment were respected. See
Turner, 564 U.S. at 448-49. He was not entitled to appointed counsel in these
circumstances. See TEX. FAM. CODE ANN. § 157.163(d), (e). We overrule his sixth
issue.
VI. CONCLUSION
We affirm the judgment of the trial court.
GINA M. BENAVIDES,
Justice
Delivered and filed the
13th day of December, 2018.
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