Philip Todd Vandemark v. Elaine M. Jimenez and the Office of the Attorney General ( 2010 )

Opinion issued April 1, 2010

In The

Court of Appeals

For The

First District of Texas

NO. 01-09-00168-CV

PHILIP TODD VANDEMARK, Appellant

V.

ELAINE M. JIMENEZ AND THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS, Appellees

On Appeal from the 328th District Court

Fort Bend County, Texas

Trial Court Cause No. 00-DCV-115218

MEMORANDUM OPINION

          In a suit to modify child support, Philip Vandemark appeals from a default order entered against him by the Title IV-D court.  The IV-D court increased Vandemark’s monthly child support obligation for his two adult children from $750 to $1090 and extended these payments indefinitely because both children require substantial care and personal supervision as a result of physical or mental disabilities.  See Tex. Fam. Code Ann. § 154.302(a) (Vernon 2008).  On appeal, Vandemark challenges the default order on the grounds that (1) he never received notice by service of citation, (2) the Attorney General’s Office failed to comply with the federal Servicemember’s Civil Relief Act’s (SCRA) requirement of filing an affidavit of non-military service prior to entry of default, and (3) the default order does not indicate whether the IV-D court determined and considered the required statutory findings when awarding child support to children over age eighteen.  See Tex. Fam. Code Ann. § 154.306 (Vernon 2008).  We hold that Vandemark made a general appearance, which waived service of citation and rendered the SCRA inapplicable.  We further hold that Vandemark failed to comply with the requirements of Texas Rule of Appellate Procedure 34.6(c) regarding a partial reporter’s record, and thus the record fails to support the contention that the IV-D court abused its discretion.  We therefore affirm.

Background

Vandemark and Elaine Jimenez divorced in 2001 and Jimenez received custody of their two children.  On June 17, 2008, the Office of the Attorney General (OAG) filed a Suit Affecting the Parent-Child Relationship (SAPCR) on Jimenez’s behalf, seeking to increase the amount of Vandemark’s child support obligation.  The district clerk’s office issued citation on August 11, 2008; however, the record does not contain a return of service.  Both Vandemark and Jimenez appeared in court on September 11, 2008 and requested that the court reset the modification hearing to allow Jimenez to obtain relevant medical documents and Vandemark to hire an attorney.  The court then issued a reset order that included the following statement in capital letters directly above Jimenez and Vandemark’s signatures:  “I acknowledge that I have received a copy of this order.  If I fail to appear, a writ of attachment/capias may be issued or a default judgment may be entered.”

Although Vandemark hired an attorney shortly after the September 11 hearing, Vandemark neither answered nor responded to the OAG’s petition.  On November 13, Vandemark’s attorney, the Assistant Attorney General, and Jimenez all attended an off-the-record pre-hearing conference with the Title IV-D judge.  According to Jimenez, Vandemark was not present at this conference, and after a discussion about the modification suit, Vandemark’s attorney left the courthouse and did not attend the formal modification hearing.

The IV-D court entered a default order against Vandemark.  The court found that (1) both children require substantial care and personal supervision due to a mental or physical disability, (2) neither child is capable of self-support, and (3) the children’s disabilities existed before their eighteenth birthdays.  The court ordered Vandemark to pay cash medical support and ordered Jimenez to apply for coverage in a governmental assistance program on behalf of the children. Directly below this order, the judge handwrote the following:  “Both dependent[s] are currently receiving Medicaid through their SSI benefits.”  The court calculated the parties’ respective monthly net resources and, pursuant to the child support guidelines, increased Vandemark’s monthly support obligation from $750 to $1090.  The order extends these payments indefinitely.

Vandemark did not request findings of fact and conclusions of law, but he timely filed a motion for new trial challenging the validity of the default order. Vandemark argued that (1) the SCRA required the OAG to file an affidavit of non-military service prior to entry of the default order, (2) Vandemark never received notice of the hearing by service of citation, (3) the IV-D court calculated Vandemark’s support obligation using the guidelines for children under age eighteen when it should have used the special considerations for children over eighteen in section 154.306 of the Family Code, and (4) the IV-D court failed to consider the SSI and Medicaid benefits received by both children in calculating the support obligation. On January 20, 2009, at the motion for new trial hearing, the district court expressly found that Vandemark generally appeared on September 11, 2008, and knew of the hearing set for November 13.  The court denied Vandemark’s motion for new trial.

Discussion

Appellate Jurisdiction

We first examine whether we have jurisdiction over the appeal.  See Smith v. Houston Lighting & Power Co., 7 S.W.3d 287, 288 (Tex. App.—Houston [1st Dist.] 1999, no pet.) (citing Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993)).  The IV-D court signed and entered a default order against Vandemark on November 13, 2008.  Vandemark timely filed a motion for new trial on December 11, 2008, which extended the time to file a notice of appeal to 90 days after signing of the judgment:  February 11, 2009.  See Tex. R. App. P. 26.1(a)(1).  Vandemark did not file his notice of appeal until February 19, 2009, eight days late.  Rule 26.3 of the Rules of Appellate Procedure allows an appellate court to extend the time to file a notice of appeal if, within fifteen days after the notice is due, the appellant files their notice of appeal with the trial court and files a Rule 10.5(b) motion to extend time with the appellate court.  See Tex. R. App. P. 26.3.  Vandemark filed the notice of appeal within fifteen days of the original due date, but did not file a motion to extend time.

The Texas Supreme Court previously has held that an appellate court necessarily implies a motion to extend time when the appellant, acting in good faith, perfects an appeal within the fifteen-day grace period of Rule 26.3.  See Verburgt v. Donner, 959 S.W.2d 615, 617 (Tex. 1997).  Although we imply the filing of a motion to extend time in this situation, the appellant must still provide a reasonable explanation for why an extension of time is necessary.  See id.; Smith, 7 S.W.3d at 288 (“It is still necessary, however, for an appellant to reasonably explain the need for an extension.”).

A “reasonable explanation” is “any plausible statement of circumstances indicating that failure to file within the [required] period was not deliberate or intentional, but was the result of inadvertence, mistake, or mischance.”  Garcia v. Kastner Farms, Inc., 774 S.W.2d 668, 669 (Tex. 1989) (quoting Meshwert v. Meshwert, 549 S.W.2d 383, 384 (Tex. 1977)).  Anything “short of deliberate or intentional noncompliance qualifies as inadvertence, mistake or mischance—even if that conduct can also be characterized as professional negligence.”  Id. at 670.  In Smith, we issued an order informing Smith that we would dismiss the appeal for want of jurisdiction unless, within fifteen days of the date of the order, he filed a reasonable explanation for not timely filing his notice of appeal.  See Smith, 7 S.W.3d at 289; Tex. R. App. P. 42.3 (allowing appellate court to dismiss for want of jurisdiction); see also Coronado v. Farming Tech., Inc., 994 S.W.2d 901, 902 (Tex. App.—Houston [1st Dist.] 1999, order).

On September 29, 2009, we issued an order requiring Vandemark to articulate a reasonable explanation for his failure to timely file his notice of appeal and informing him that if he did not do so within fifteen days of the date of the order, we would dismiss his appeal for want of jurisdiction.  Vandemark’s attorney of record filed an affidavit on October 2, 2009, stating that she erred in calculating the time to file a notice of appeal.  We hold that the attorney’s affidavit reasonably explains Vandemark’s failure to timely file a notice of appeal.  Accordingly, we have jurisdiction over this appeal.

Waiver by General Appearance

          Vandemark initially challenges the default order on the procedural grounds that he was never served with citation and the OAG failed to file an affidavit of non-military service before seeking the default order.  These contentions turn on whether Vandemark waived these requirements when he appeared and signed the reset order requesting postponement of the modification hearing.

          Generally, by appearing before the court, the defendant indicates his submission to the court’s jurisdiction.  See Mays v. Perkins, 927 S.W.2d 222, 225 (Tex. App.—Houston [1st Dist.] 1996, no writ).  To determine if a defendant appeared, we consider the nature and quality of the defendant’s activities before the trial court.  See Smith v. Amarillo Hosp. Dist., 672 S.W.2d 615, 617 (Tex. App.—Amarillo 1984, no writ).  The Texas Supreme Court previously has held that any one of three categories of activities by a defendant constitutes a general appearance:  (1) the defendant invokes the judgment of the court on any question other than the court’s jurisdiction; (2) the defendant recognizes by its acts that an action is properly pending; or (3) the defendant seeks affirmative action from the court.  See Exito Elecs. Co. v. Trejo, 142 S.W.3d 302, 304 (Tex. 2004) (citing Dawson-Austin v. Austin, 968 S.W.2d 319, 322 (Tex. 1998)).

Both this court and the Fourteenth Court of Appeals have held that participating in the proceedings by signing agreed orders and divorce decrees constitutes a general appearance.  See Mays, 927 S.W.2d at 225 (agreed final judgment); Terry v. Caldwell, 851 S.W.2d 875, 876 (Tex. App.—Houston [14th Dist.] 1993, no writ) (agreed order); Spivey v. Holloway, 902 S.W.2d 46, 49 (Tex. App.—Houston [1st Dist.] 1995, no writ) (divorce decree).  Additionally, the Austin Court of Appeals held that a defendant appeared when he attended a hearing, requested additional time to seek representation, and signed a scheduling order setting the date of the next hearing.  See Aguilar v. Tex. Dep’t of Fam. & Protective Servs., No. 03-08-00152-CV, 2008 Tex. App. LEXIS 8663, at *12–13 (Tex. App.—Austin Oct. 31, 2008, no pet.) (mem. op.).

          Here, Vandemark attended a hearing before the IV-D court on September 11, 2008.  At this hearing, Vandemark requested additional time before the modification hearing in order to obtain an attorney.  Jimenez, Vandemark, and the IV-D judge all signed, in open court, the order resetting the modification hearing for November 13.  By this action, Vandemark impliedly recognized that the IV-D court had jurisdiction over the modification proceeding.  See Exito Elecs. Co, 142 S.W.3d at 304; Smith, 672 S.W.2d at 617.  We hold that Vandemark generally appeared in this cause.

Although the general rule is that a court shall not render judgment against a defendant who was not served, Texas Rule of Civil Procedure 120 provides an exception “when a person waives service by making a general appearance before the court.” I.M. Werner v. Colwell, 909 S.W.2d 866, 869–70 (Tex. 1995).  If a defendant enters an appearance in open court, that appearance has the same force and effect as if citation had been duly issued and served.  See Tex. R. Civ. P. 120; see also Baker v. Monsanto Co., 111 S.W.3d 158, 160 (Tex. 2003) (“Monsanto made a general appearance when it answered the plaintiff’s complaint on July 7, 1995.  That appearance relieved the intervenors of the responsibility to serve Monsanto with citation.”).

Pursuant to Rule 120, Vandemark’s appearance had the same force and effect as service of citation.  The reset order stated the date, time, and location of the postponed modification hearing. The order also contained the following noticeable and unambiguous statement directly above Vandemark’s signature: “I acknowledge that I have received a copy of this order.  If I fail to appear, a writ of attachment/capias may be issued or a default judgment may be entered.”  Even though Vandemark never received citation, he had notice of the November 13th modification hearing, and his appearance in court waived the service of citation requirement.

Vandemark contends that section 156.003 of the Family Code requires notice by service of citation when a party’s rights and duties may be affected by a modification suit.  See Tex. Fam. Code Ann. § 156.003 (Vernon 2008) (“A party whose rights and duties may be affected by a suit for modification is entitled to receive notice by service of citation.”).  The Family Code also provides, however, that citation in SAPCRs “shall be issued and served as in other civil cases.”  See id. § 102.009(c) (“Citation on the filing of an original petition in a suit shall be issued and served as in other civil cases.”); see also id. § 156.004 (“The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under this chapter.”). Section 156.003 does not alter the provision of Rule 120 that allows a general appearance to waive service of citation. Therefore, the Family Code does not excuse Vandemark’s waiver by general appearance.  The trial court thus did not err in refusing to set aside the default order on this basis.

Section 521 of the SCRA requires a plaintiff to file an affidavit with the trial court stating whether the defendant is engaged in military service before the court can enter judgment in favor of the plaintiff.  See 50 U.S.C. app. § 521(b) (2006).  However, section 521(b) only applies to “civil action[s] or proceeding[s], including any child custody proceeding[s], in which the defendant does not make an appearance.”  Id. § 521(a) (emphasis added). Vandemark generally appeared when he requested a reset of the modification hearing and signed the reset order.  The SCRA thus does not apply, and the trial court did not err by entering a default order against Vandemark without an underlying affidavit of non-military service.

Section 154.306 Statutory Findings by the Title IV-D Court

          When a trial court decides the amount of child support to be paid after the child’s eighteenth birthday, the court must “determine and give special consideration to” the following four factors:  (1) any existing or future needs of the child directly related to a mental or physical disability and the substantial care and personal supervision required by that disability; (2) whether the obligor parent pays for the care and supervision of the child or will provide substantial care or personal supervision; (3) the financial resources available to both parents for support, care, and supervision; and (4) any other financial resources, other resources, or programs available for the support, care, and supervision of the child.  See Tex. Fam. Code Ann. § 154.306 (Vernon 2008).  Vandemark challenges the legal and factual sufficiency of the default order, and further contends that the IV-D court erred (1) by not detailing the section 154.306 factors it considered when increasing and extending Vandemark’s child support obligation, and (2) by not noting whether it considered the children’s SSI and Medicaid benefits.[1]

          We review a trial court’s order determining child support obligations for abuse of discretion.  See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1991) (per curiam); McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.] 1999, no pet.).  When no party requests findings of fact and conclusions of law, as occurred in this case, we imply all findings necessary to support the trial court’s judgment.  See Worford, 801 S.W.2d at 109.  We must affirm the judgment if it can be upheld on any legal theory supported by the evidence.  See id.; Davis v. Smith, 227 S.W.3d 299, 302 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Vandemark relies on Wolk v. Wolk, No. 03-06-00595-CV, 2007 Tex. App. LEXIS 7474, at *9–10 (Tex. App.—Austin Sept. 12, 2007, no pet.) (mem. op.), for the proposition that the trial court did not have sufficient evidence before it to “determine and give special consideration to” the specific section 154.306 factors. When a sufficiency of evidence inquiry overlaps with the abuse of discretion standard, we review (1) whether the trial court had sufficient information upon which to exercise discretion and (2) whether the trial court correctly applied its discretion.  See id. at *5 (citing Sandone v. Miller-Sandone, 116 S.W.3d 204, 206 (Tex. App.—El Paso 2003, no pet.)).  In Wolk, the Austin Court of Appeals had the reporter’s record from the default hearing before it on appeal, and could therefore determine the evidence presented to the trial court.  See id. at *10.  In this case, although Vandemark requested the reporter’s record from the motion for new trial hearing, he did not request the reporter’s record from the default hearing or provide it on appeal.

The appellant bears the burden of bringing forward a sufficient record to show the trial court’s error.  See Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.)  A complete reporter’s record is not necessary to preserve a legal or factual sufficiency challenge.  See Bennett v. Cochran, 96 S.W.3d 227, 228 (Tex. 2002) (per curiam) (citing Tex. R. App. P. 34.6(c)(4)).  Texas Rule of Appellate Procedure 34.6(c) allows an appellant to request a partial reporter’s record.  In that case, the appellant must also include with that request “a statement of the points or issues to be presented on appeal and [the appellant] will then be limited to those points or issues.”  Tex. R. App. P. 34.6(c)(1).  If the appellant requests only a partial reporter’s record, and does not include the required list of points or issues, we presume that the omitted portions of the reporter’s record support the trial court’s findings.  See Richards v. Schion, 969 S.W.2d 131, 133 (Tex. App.—Houston [1st Dist.] 1998, no pet.); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (“An appellant must either comply with [the predecessor to Rule 34.6] or file a complete statement of facts; otherwise, it will be presumed that the omitted portions are relevant to the disposition of the appeal.”); Bennett, 96 S.W.3d at 229 (“There is no question that, had Bennett completely failed to submit his statement of points or issues, Rule 34.6 would require the appellate court to affirm the trial court’s judgment.”).

Here, the reporter’s certificate for the motion for new trial hearing contains the following certification:  “I further certify that the total cost for the preparation of this Reporter’s Record is $190.00 and was paid by Ms. Joyce Phoenix.”  Ms. Phoenix is one of Vandemark’s attorneys.  We construe this as a request for a partial record.  The clerk’s record does not contain a statement of the points or issues Vandemark planned to present on appeal.  Because Vandemark did not comply with the requirements of Rule 34.6(c), we presume that the omitted portion of the reporter’s record—the default hearing and exhibits—supports the trial court’s findings.  Without the reporter’s record from the default hearing, we cannot conclude that the IV-D court abused its discretion in modifying and extending Vandemark’s support obligation.

Conclusion

We hold that Vandemark generally appeared when he attended a hearing and signed a reset order in open court.  As a result, the trial court did not err in refusing to set aside the default order, because Vandemark’s appearance waived citation and the affidavit of non-military service requirements.  Furthermore, Vandemark requested a partial reporter’s record that does not include the default hearing and did not include a statement of the points or issues to be presented on appeal.  Thus, we presume the omitted portion of the reporter’s record, the default hearing, supports the trial court’s judgment.  Vandemark has failed to show on appeal that the trial court abused its discretion in modifying and extending Vandemark’s child support obligation.  We affirm the order of the trial court.

                                                         Jane Bland

                                                          Justice

Panel consists of Justices Jennings, Hanks, and Bland.

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[1] As the OAG points out, page 6 of the Default Order contains the IV-D court’s findings on health insurance availability.  Handwritten under the finding that neither parent has access to reasonably priced private insurance is the following:  “Both dependent[s] are currently receiving Medicaid through their SSI benefits.”  This is some evidence that the trial court considered the children’s SSI benefits when calculating Vandemark’s child support obligation.