James F. Bowman v. Deborah Levi Bowman ( 2011 )

Opinion issued May 26, 2011

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-00219-CV

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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.

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[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.)).