IN THE INTEREST OF CHILD v. << (2011)

MEMORANDUM OPINION

Opinion By Justice Myers

This is an appeal from a default judgment modifying Isaac Lee Reddic's child and medical support obligations after Reddic failed to appear at a hearing on the Office of the Attorney General's motion to modify.   In three issues, Reddic argues he was not properly notified of the hearing, the associate judge was not permitted to preside over the case, and the court's order is unenforceable.   We affirm.

Background and Procedural History

On April 1, 2002, the county court at law in Nolan County, Texas issued a divorce decree dissolving the marriage between Isaac Lee Reddic and Tammy Lavit Sephus-Reddic.   In the decree, the trial court set out Reddic's child support obligation to the couple's only child, I.J.R., at $225 per month beginning on April 15, 2002, and continuing monthly thereafter.   The Office of the Attorney General (OAG) filed suit to modify Reddic's current child support and medical support.   On January 30, 2008, the county court at law in Nolan County issued an order transferring the case to Collin County.   Reddic filed his original answer on February 14, 2008.   Reddic's answer objected to the assignment of an associate judge to hear the merits of the case.

On December 5, 2008, OAG filed an amended petition to modify Reddic's child support obligation.   On December 30, 2008, Reddic filed an amended answer to the suit to modify his child support obligation.   Reddic's amended answer also objected to the assignment of an associate judge to hear the merits of the case.

On February 19, 2009, the associate judge of the trial court convened a hearing on the motion to modify.   Neither Reddic nor his attorney appeared at the hearing.   The trial court directed the OAG to contact Reddic's attorney.   After the OAG unsuccessfully attempted to contact Reddic's attorney, the trial court had the following colloquy with the OAG:

THE COURT:  Okay. Proceed.

[OAG]:  The State is submitting the last known address for Mr. Reddic.   We also submit a notice letter to his attorney, Eric Gruetzner and, also, a Return Receipt from the USPS (United States Postal Service) stating that he had received that notice.   We also announce to the Court that today we have called the attorney's office and have had to leave a message regarding our attempt to default him, what court we're in and what his client's name is.   There is no staff available so all I could do is leave it on the telephone.

After the OAG submitted the evidence of notice,¹ the trial court heard evidence regarding Reddic's net resources.   The court also heard testimony from Sephus-Reddic regarding the cost of health insurance for I.J.R. Sephus-Reddic testified that she had a health insurance policy for I.J.R. through her employer at a cost of $149.00 per month.   The court also held the following colloquy with the OAG regarding the date Reddic was served with notice of the suit to modify his child support obligation:

THE COURT:  When is the date of service?

[OAG]:  You have the file, Your Honor.

(File tendered back to Counsel).

[OAG]:  I think he was first served in May, I believe.   It shows he was served December 12, 2008, Your Honor.

THE COURT:  When was the last setting in this matter?

[OAG]:  January.

THE COURT:  So we can back date it to 1 January.

[OAG]:  Okay. For both health insurance and child support?

THE COURT:  Yeah. Two months.

The associated judge then signed a default order modifying Reddic's current child support to $310.00 per month beginning on January 1, 2009, and continuing monthly thereafter.   The court also ordered Reddic to pay $149.00 per month in current cash medical support beginning on January 1, 2009, and continuing monthly thereafter.

On March 13, 2009, Reddic filed a motion for new trial raising the sole issue that he did not receive notice of the February 19 trial setting on the motion to modify.   Two months after filing the motion for new trial, Reddic filed a timely notice of appeal.

Discussion

In his first issue, Reddic argues he was not properly notified of the February 19 hearing on the OAG's motion to modify.

We presume a trial court hears a case only after the parties receive proper notice.  Jones v. Texas Dep't of Pub. Safety, 803 S.W.2d 760, 761 (Tex.App.-Houston [14th Dist.] 1991, no writ).

The Texas Rules of Civil Procedure require notice of the trial setting to be sent by personal service, courier receipted delivery, certified or registered mail, fax, or by any other manner as the trial court in its discretion may direct.  Tex.R. Civ. P. 21a.   Under Rule 21a, if notice of the hearing is properly addressed and mailed, postage prepaid, a presumption arises that the notice was properly received by the addressee.  Tex.R. Civ. P. 21a;  Cliff v. Huggins, 724 S.W.2d 778, 780 (Tex.1987);  Graham-Rutledge & Co., Inc. v. Nadia Corp., 281 S.W.3d 683, 691 (Tex.App.-Dallas 2009, no pet.).   Once a defendant has made an appearance in a cause, he is entitled to notice of the trial setting as a matter of Fourteenth Amendment due process.  LBL Oil Co. v. Int'l Power Servs, 777 S.W.2d 390, 390-91 (Tex.1989).   A lack of notice, however, does not necessarily void the trial court's judgment because due process merely requires that the method of service be reasonably calculated, under the circumstances, to inform interested parties of the proceeding and afford them an opportunity to present objections.   See Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84-85 (1988).

The OAG's motion to modify did not contain a certificate of service.   Shortly after the start of the February 19 hearing, the trial court noticed that neither Reddic nor his attorney were present.   The OAG's counsel told the trial court it had sent notice to Reddic's attorney “by certified mail and he's not here nor is his client.”   The trial court told the OAG's counsel to call the office of Reddic's attorney “and say you're about to make a default unless his office has some idea of how to get him here.”   Following a recess, the OAG's counsel told the court it had contacted the office of Reddic's attorney and left a message “regarding our attempt to default him, what court were in and what his client's name is.”   The OAG's counsel submitted to the court a return receipt card from the United States Postal Service “stating that [Reddic's attorney] had received Notice.”   The trial court's order recites that “although duly notified,” Reddic “did not appear.”

Although Reddic complains he did not receive notice of the February 19 hearing, the record contains evidence to the contrary.   Specifically, the record reflects that, at the trial court's request, a telephone call was placed to the office of Reddic's attorney shortly before the hearing started, and that the OAG's counsel submitted to the court a return receipt card from the post office indicating Reddic's attorney had received notice.   The trial court's order recites that Reddic was “duly notified” but “did not appear.”   Reddic does not refute this evidence and does not cite to any authority showing he was not provided with sufficient notice of the hearing.   As the Texas Supreme Court stated in Ginn v. Forrester, 282 S.W.3d 430 (Tex.2009), concerning whether error was apparent on the face of the record:  “As to what does constitute error on the face of the record, we have clearly said that silence is not enough․  [T]he absence of proof in the record that notice was provided does not establish error on the face of the record.”  Id. at 433.   We overrule Reddic's first issue.

In his second issue, Reddic argues the court erred in convening the February 19 hearing because his answer objected to allowing the associate judge to hear the case.

Family Code section 201.005 permits a presiding district court judge to refer certain family law matters to an associate judge.  Tex. Fam.Code Ann. § 201.005 (West 2008).   That section further provides that if a party objects to an associate judge hearing the trial, the party must file a written objection not later than the tenth day after the date the party receives notice that the associate judge will hear the case.   Id. § 201.005(b), (c).  If one of the parties files a timely written objection to the associate judge presiding over trial, the case shall be tried by the referring judge rather than the associate judge.   See id.

According to the clerk's record, the Nolan County court issued the order transferring the case to Collin County on January 30, 2008.   Reddic filed his original written objection on February 14, 2008.   On December 5, 2008, the OAG filed an amended petition.   On December 30, 2008 Reddic filed the amended answer, which also objected to the associate judge hearing the merits of the case.

Reddic did not raise the issue in his motion for new trial.

Judicial economy requires that a trial court have the opportunity to correct an error before an appeal proceeds.  In re C.O.S., 988 S.W.2d 760, 765 (Tex.1999).  “As a prerequisite to presenting a complaint for appellate review, the record must show that:  (1) the complaint was made to the trial court by a timely request, objection, or motion.”  Tex.R.App. P. 33.1.   In this case, the record does not indicate when Reddic received notice that an associate judge would hear the case, and the record does not show, nor does Reddic allege, that he made a timely written objection pursuant to section 201.005(b), (c).  We therefore conclude that he failed to preserve this issue for appellate review.

In his third issue, Reddic argues the trial court abused its discretion by setting the date of retroactive modification to January 1, 2009.

We review a trial court's ruling on a request to modify child support for an abuse of discretion.  In re J.D.D., 242 S.W.3d 916, 919 (Tex.App.-Dallas 2008, pet. denied);  In re H.J.W., No. 05-08-00474-CV, 2009 WL 4725301, at *1 (Tex.App.-Dallas 2009, no pet.).   The family code generally prohibits the retroactive modification of child support, and support orders may be modified only as to obligations accruing after the earlier of either the date of citation or appearance in the suit to modify.  Tex. Fam.Code Ann. § 156.401(b)(1), (2) (West 2008);  H.J.W., 2009 WL 4725301, at *2.

In this case, the trial court determined at the February 19 hearing that Reddic received the service of citation on December 12, 2008.   Reddic does not cite any evidence to the contrary.   Therefore, the trial court did not abuse its discretion by setting the accrual date of the modified support order to January 1, 2009.   We overrule Reddic's third issue.

The judgment of the trial court is affirmed.

090565F.P05

FOOTNOTES

FN1. The record does not contain the evidence of service cited by the OAG..  FN1. The record does not contain the evidence of service cited by the OAG.

LANA MYERS JUSTICE