Opinion

James F. Bowman v. Deborah Levi Bowman

Court
Texas Court of Appeals, 1st District (Houston)
Filed
May 26, 2011
Status
Published
Cited by
0 cases
Authority
More cited than 42.2%

The opinion

Opinion issued May 26, 2011

In The

Court of

Appeals

For The

First District

of Texas

————————————

NO. 01-10-00219-CV

———————————

James F. Bowman , Appellant

V.

Deborah

Burks , Appellee

On Appeal from the 257th District Court

Harris County, Texas

Trial Court Case No. 1990-63344

MEMORANDUM OPINION

In

this child support case, we consider whether either (1) an order signed by an

associate judge, from which there is a timely request for de novo review in the

trial court, or (2) the trial court’s order denying de novo review, is a final,

appealable order. Because we hold that

neither order is a final, appealable order, we dismiss this appeal for want of

jurisdiction.

BACKGROUND

Bowman and Burks were

married and had one child, C.B. On June

12, 2003, the trial court ordered Bowman to pay $400 to Burks in child support

until C.B. either reached the age of 18 or graduated from high school, whichever

occurred last. On June 1, 2006, one day

before C.B.’s 18th birthday, Burks filed a Petition to Modify alleging that

C.B. had become disabled and requesting that Bowman be ordered to pay child

support indefinitely. C.B. turned 18 on

June 2, 2006, and graduated from high school on May 26, 2007.

On

August 31, 2007, the trial court signed a default judgment on Burks’s Petition

to Modify, finding C.B. to be disabled and ordering Bowman to pay $400 per

month for an indefinite period. The 2007

judgment also ordered wage withholdings from Bowman’s earnings. Bowman did not appeal the 2007 judgment.

On

December 11, 2008, Bowman filed a Petition to Terminate Order for

Withholding. In the petition, Bowman

alleged that the withholding should be terminated because C.B. had reached 18

and graduated from high school before the trial court entered the 2007

order. Bowman’s petition did not address

the issue of C.B.’s disability.

On

December 2, 2009, the associate judge held a hearing on Bowman’s petition,

after which the associate judge signed an order denying Bowman’s petition. On December 3, 2009, Bowman filed a motion

requesting that the trial court conduct a de novo review of the associate

judge’s ruling. On December 11, 2009,

the trial court signed an order denying Bowman’s request for de novo review of

the associate judge’s ruling.

Thereafter,

Bowman filed a notice of appeal complaining of the trial court’s December 11,

2009 order denying his request for de novo review of the associate judge’s

ruling.

APPEALABILITY OF TRIAL COURT’S ORDER

In his sole issue on appeal,

Bowman contends that the trial court “erred by not hearing testimony in

response to Mr. Bowman’s appeal of the decision of the associate judge

requesting a trial de novo.” The Office

of Attorney General [“OAG”], on behalf of Burks, responds that neither the

trial court’s December 11, 2009 order denying Bowman’s request for de novo

review of the associate judge’s ruling, nor the associate judge’s ruling

itself, is an appealable order. We

agree.

Appellate courts have jurisdiction over final

judgments and only those interlocutory orders deemed appealable by the Texas Legislature. Lehmann v. Har–Con

Corp., 39 S.W.3d 191, 195 (Tex. 2001); City of Houston v. Kilburn,

849 S.W.2d 810, 811 (Tex. 1993); see Tex.

Civ. Prac. & Rem. Code Ann. § 15.003 (Vernon Supp. 2010), §

51.014(a), (d) (Vernon 2008). A judgment is final for purposes of appeal if it

disposes of all pending parties and claims in the record. Lehmann, 39

S.W.3d at 195 .

The trial court’s December 11, 2009 order is entitled “ORDER

DECLINING TO SET DE NOVO” and provides as follows:

The Court hereby declines to set a de novo hearing on the

Associate Judge’s ruling of December 2, 2009 for the reason that the Motion for

De Novo relies solely on a provision of the Texas Family Code that is

inapplicable because the prior, final order of this court has determined that

the child is disabled and that the child support should continue for an

indefinite period.

The

order does not address the claims in Bowman’s petition in that it does not

grant or deny his request to terminate the wage withholding order. The order also does not adopt the associate

judge’s ruling denying Bowman’s petition.

Because the December 11, 2009 order neither disposes of all parties and

all claims, nor adopts the associate judge’s ruling disposing of all parties

and all claims, it is not a final, appealable order.

Thus, we turn to the issue of whether

the associate judge’s order of December 2, 2009, is a final, appealable order. An order of an associate judge becomes an

order of the referring court by operation of law without need for ratification

by the referring court. Tex. Fam. Code

Ann. § 201.1041(a) (Vernon Supp. 2006). However, the order automatically

becomes final only if an appeal is not filed within seven days of the associate

judge’s ruling. See id. §§ 201.015(a) (Vernon 2002); 201.1041(a). The

ruling of an associate judge serving as a child support master is initially a

proposed order, “not a final order upon signing. It cannot become a final order

of the court unless neither party appeals the master’s findings.” In re

G.S.G., 145 S.W.3d 351, 354 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

Here, the OAG admits

that “Bowman’s request for a de novo hearing was timely[.]” Because Bowman timely requested a de novo

hearing of the associate judge’s ruling, the associate judge’s order never

became final . See In re Office of the Attorney Gen. ,

215 S.W.3d 913, 916 (Tex. App.—Fort Worth 2007, orig. proceeding).

CONCLUSION

Because

neither the trial court’s order denying Bowman’s request for a de novo hearing,

nor the associate judge’s order, are final and appealable, we have no

jurisdiction to consider this appeal.

Accordingly, we dismiss the appeal

for want of jurisdiction. [1]

Sherry

Radack

Chief

Justice

Panel

consists of Chief Justice Radack and Justices Sharp and Brown.

[1]

However, we note that Bowman is not without a

remedy. The OAG concedes that the trial court was required to hold a de novo

hearing. We are confident that, in light of this opinion, the trial court will

reconsider Bowman’s request for a de novo hearing. In the event the trial court does not,

mandamus may be available to compel the trial court to conduct his requested de

novo hearing. See Ex parte Brown , 875 S.W.2d 756, 760 (Tex. App.—Fort Worth 2003,

orig. proceeding) (interpreting predecessor statute to section 201.015 to

provide grounds for mandamus when trial court fails to hold properly requested

de novo hearing); Lopez v. Lopez , 995

S.W.2d 896, 897 (Tex. App.—El Paso 1999, no pet.) (holding that section 201.015

“allows the parties to mandamus a prompt hearing,” but does not deprive trial

court of jurisdiction); In re Jones ,

No. 05-07-00879-CV, 2007 WL 2258517 (Tex. App.—Dallas Aug. 8, 2007, orig. proceeding)

(same). However, we cannot treat

Bowman’s attempted appeal as a mandamus because “a petition for mandamus

commences an original proceeding that is governed by different rules than the

rules governing direct appeals.” Hamlett v. Hamlett , No. 01-04-01097-CV,

2006 WL 2690304 , at *2 (Tex. App.—Houston [1st Dist.] Sept. 21, 2006, pet.

denied) (quoting Pinnacle Gas Treating,

Inc. v. Read , 13 S.W.3d 126, 127 (Tex. App.—Waco 2000, no pet.)).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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