Opinion
05-22-00678-CV
06-27-2023
IN THE INTEREST OF N.M. AND C.M., CHILDREN
On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-19-19961
Before Justices Partida-Kipness, Reichek, and Miskel
MEMORANDUM OPINION
EMILY MISKEL JUSTICE.
Renicke Reshaud Moss (Father) appeals the judgment of the trial court in a suit affecting the parent-child relationship (SAPCR) filed by the Office of the Attorney General (OAG) involving Shaneka Shuntae Marks Moss (Mother) and their two children. The trial court adopted the associate judge's order modifying Father's child support obligations and confirming a judgment for a child support arrearage. Father raises two issues on appeal, arguing that, by including a sentence in his hearing notice that vacated with prejudice the associate judge's order on the OAG's claims, he transformed his hearing notice into a final judgment and deprived the trial court of further plenary power.
We conclude that the orders setting the hearing dates were not final judgments that disposed of all claims and parties, and that the trial court had plenary power to modify those orders and adopt the associate judge's order as the court's final judgment. We affirm the trial court's order.
I. PROCEDURAL BACKGROUND
In 2019, the OAG filed an original petition in a SAPCR involving Father, Mother, and N.M. pursuant to Chapter 231 of the Texas Family Code. See generally Tex. Fam. Code §§ 231.001-.309. An associate judge held a hearing in that Title IV-D case and ordered Father to pay current and retroactive child support and provide health and dental insurance for his child, among other matters. Almost two years later, the OAG filed an Original Petition in Suit Affecting Parent-Child Relationship, Suit for Modification, and Motion to Confirm Child Support Arrearage, seeking to modify Father's prior child support obligations, add support for a second child, C.M., born after the initial order, and confirm child support arrearages. On May 3, 2022, the IV-D court associate judge held a trial. The OAG appeared, Mother appeared pro se, and Father, although duly notified, did not appear. On May 9, the associate judge signed an order (the AJ's Order). The order indicates that a record of these proceedings was made, but the reporter's record is not part of the record on appeal.
A Title IV-D case is a case in which the OAG provides Title IV-D services under Part D, Title IV of the federal Social Security Act (42 U.S.C. § 651 et seq.) relating to child support obligations and enforcement and related matters. See Tex. Fam. Code §§ 101.034, 231.001.
On May 11, 2022, Father timely requested a de novo hearing in the referring district court, listing the following three issues: "Challenge personam and commercial venue jurisdiction," "Challenge to Parent-Child Relationship and Support," and "Challenge to legal status as a non-legal entity. (See Affidavit of Status)." Father included a sentence in his proposed Order Setting Hearing Date stating that "any and all prior orders are vacated as null and void." The trial judge signed this scheduling order on May 16, 2022 (the May 16 Order Setting Hearing). Because Father did not provide Mother with notice of that hearing, Father subsequently submitted to the court another proposed Order Setting Hearing Date which stated that "any and all prior orders are vacated as null and void with prejudiced [sic]." The trial judge signed this second scheduling order on May 25, 2022 (the May 25 Order Setting Hearing). A week later, the trial judge signed a third Notice of Hearing, setting a later de novo hearing date, which did not contain any language regarding prior orders.
On June 6, 2022, the OAG filed a Motion to Modify, Correct, or Reform Judgment or in the Alternative, Motion to Clarify, stating that it had not received notice of Father's request for a de novo hearing or a copy of his proposed order setting a hearing date until May 17, 2022, and requesting that the trial court strike the language that "any and all prior orders are vacated as null and void" from the May 16 Order Setting Hearing, given that the de novo hearing on the merits had not yet been held.
On June 23, 2022, the trial court held a videoconference hearing on both the OAG's motion to modify, correct, reform, or clarify the judgment and Father's request for a de novo hearing. The trial court signed an order on June 29, 2022, finding that the May 16 Order Setting Hearing was erroneous due to the inclusion of Father's language that "any and all prior orders are vacated as null and void," which the court did not intend when signing that order. The trial court granted the OAG's motion to modify, correct, reform or clarify judgment and ordered that such language be stricken from both May orders setting hearing dates. The court also set aside any other orders signed after Father filed his de novo hearing request on May 11, 2022.
In the same order, the trial court denied Father's request for a de novo hearing and dismissed his request for want of prosecution, finding that Father refused to be sworn for testimony at the de novo hearing. The trial court further ordered that the AJ's Order "continues as the order of the court."
Father did not raise the denial and dismissal of his request for de novo review in his appellant's brief. In a paragraph within his reply brief, Father mentions for the first time that, if the trial court retained any authority after the May 25 Order Setting Hearing was signed, then the trial court had a duty to hold a de novo hearing to establish paternity and review the SAPCR. He states that the trial court did not address these issues and later dismissed the de novo hearing request. We may not consider issues raised on appeal for the first time in a reply brief. Veterinary Specialists of N. Tex., PLLC v. King, No. 05-21-00325-CV, 2022 WL 406095, at *6 (Tex. App.-Dallas Feb. 9, 2022, no pet.) (mem. op.) (citing Sanchez v. Martin, 378 S.W.3d 581, 590 (Tex. App.-Dallas 2012, no pet.)); see also Tex. R. App. P. 38.3 (providing that appellant may file a reply brief addressing any matter in the appellee's brief). In addition, Father does not make a clear argument relating to this issue or provide citations to authorities or the record in support of any such argument. As a result, this issue has not been preserved for our review. See Tex. R. App. P. 38.1(i); In re S.V., 599 S.W.3d 25, 41 (Tex. App.-Dallas 2017, pet. denied) (stating that "[b]are assertions of error, without argument or authority, waive any error").
On July 13, 2022, Father filed a notice of appeal in this court.
II. THE ORDERS SETTING HEARINGS ARE NOT FINAL JUDGMENTS
A. Standard of Review
Courts review de novo whether an order is a final judgment because finality is a legal question impacting jurisdiction. In re Guardianship of Miller, 299 S.W.3d 179, 184 (Tex. App.-Dallas 2009, no pet.); see also In re A.R., No. 02-21-00449-CV, 2022 WL 17172491, at *3 (Tex. App.-Fort Worth November 23, 2022, no pet.) (mem. op.).
B. Applicable Law
1. Final Judgments
Under Texas law, "[a] judgment is final for purposes of appeal if it disposes of all pending parties and claims in the record, except as necessary to carry out the decree." Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195 (Tex. 2001). Regardless of its language, a judgment that finally disposes of all remaining parties and claims, based on the record in the case, is final. Id. at 200. Although an order that should have been interlocutory can be final if it expressly disposes of all claims and all parties, "the intent to finally dispose of the case must be unequivocally expressed in the words of the order itself." Id.
In cases where there has not been a conventional trial on the merits, the Texas Supreme Court has further emphasized that "an order or judgment is not final for purposes of appeal unless it actually disposes of every pending claim and party or unless it clearly and unequivocally states that it finally disposes of all claims and all parties." Id. at 205. "An order lacking the unmistakable language of finality-that it resolves all claims between and among all parties and is final and appealable-is ambiguous in a suit under the Family Code when the order does not comport with the statute governing final orders and is otherwise inconclusive as to its intent." In re R.R.K., 590 S.W.3d 535, 544 (Tex. 2019) (noting that the lack of statutory notices and other information required by the Family Code to be included in a final judgment indicated an order was not a final judgment). Any doubt as to a judgment's finality must be resolved by determining the trial court's intention based on the language of the order and the record as a whole, occasionally aided by the conduct of the parties. Am. Heritage Cap., LP v. Gonzalez, 436 S.W.3d 865, 870 (Tex. App.-Dallas 2014, no pet.) (citing Vaughn v. Drennon, 324 S.W.3d 560, 563 (Tex. 2010) (per curiam)).
2. Powers of Associate Judges in Title IV-D Cases
The Texas Family Code provides for the appointment of associate judges to assist with completing Title IV-D child support cases referred to an associate judge by an appropriate court. Tex. Fam. Code § 201.101. An associate judge may hold a trial on the merits and recommend an order to the referring district court. Id. § 201.104(c).
After the associate judge holds a trial and provides the substance of his rulings, a party may request that the referring district court hold a de novo hearing on specified issues. See id. §§ 201.015, .1042. An associate judge's proposed order generally is in full force and effect and enforceable as an order or judgment of the referring court pending a de novo hearing before the referring court. Id. § 201.1041(c).
C. The May orders setting hearings are not final judgments because they do not dispose of all parties and claims.
Father argues that the language in the May 25 Order Setting Hearing vacating all prior orders as null and void with prejudice disposed of all claims and parties in the case, including the OAG's claims and the AJ's Order, and that the May 25 Order Setting Hearing is thus the final judgment in the case. We disagree based on the face of the order, the record in the case, and the intention expressed by the court.
Father requested a de novo hearing prior to the trial court signing either of the May orders setting hearing dates. Father provided the proposed forms of both orders to the trial court, which contained the language purporting to vacate all prior orders (with prejudice, in the case of the May 25 Order Setting Hearing). The fact that the trial judge signed these orders while also scheduling a de novo hearing indicates on the face of the orders that the trial court did not intend for either interlocutory order setting a future hearing date to be a final judgment. See Am. Heritage Cap. LP, 436 S.W.3d at 870-71 (concluding that the judge's intention to consider a request for attorney's fees and sanctions at a future pending hearing rendered the disputed order interlocutory rather than final); In re A.S., No. 02-18-00400-CV, 2019 WL 5996981, at *3 (Tex. App.-Fort Worth Nov. 14, 2019, no pet.) (mem. op.) (holding that, because mother still had claims remaining for trial and a notice of trial setting was filed after the order was entered, the complained-of order was not a final order). In this case, the trial court had not yet adopted the AJ's Order, which was the subject of the pending de novo review. See Tex. Fam. Code §§ 201.104(b), (c), .1041(a).
Father argues that the hearing orders that vacate the AJ's Order are final judgments, but they do not resolve any of the affirmative claims pleaded by the OAG. The trial court had no power to summarily dismiss the OAG's claims without a motion or hearing. See, e.g., Foster v. Foster, No. 02-20-00327-CV, 2021 WL 2373329, at *7 (Tex. App.-Fort Worth 2021, pet. denied) (mem. op.) (reversing trial court's sua sponte dismissal of appellant's claims where there was no pending request for affirmative relief at the time of the dismissal); Ward v. Lamar Univ., 484 S.W.3d 440, 453 (Tex. App.-Houston [14th dist.] 2016) (no pet.) (finding that the trial court lacked authority to dismiss claims sua sponte when there was no motion or other procedural vehicle available to the trial court authorizing it to dismiss the claims); Gleason v. Coman, 693 S.W.2d 564, 567 (Tex. App.-Houston [14th Dist.] 1985, writ ref'd n.r.e.) ("[I]t is well established in Texas Courts that dismissal of a case is not proper on the court's own motion."). The May orders setting hearing dates also do not contain any of the information required to be contained in final orders by section 105.006 of the Texas Family Code. See Tex. Fam. Code §105.006. "[O]missions of elements required by section 105.006 raise doubt about an order's finality" in the absence of "clear and unequivocal" finality language. In re R.R.K., 590 S.W.3d at 542-43. We determine that these orders setting hearing dates do not clearly and unambiguously resolve the OAG's claims or dispose of all the parties in the SAPCR.
Finally, the trial judge stated in both her order on June 29, 2022, as well as the reporter's record from the hearing on June 23, 2022, that these orders setting hearings were signed in error without the intention of vacating any prior orders. We note that this type of "null and void" and "with prejudice" language in the proposed orders submitted by Father is not appropriate in an interlocutory order setting a hearing. At best, the included language was an innocent mistake by a pro se party; at worst, it was a strategic ploy intended to trick a busy trial judge and avoid additional child support obligations. We conclude that neither order setting a date for a future de novo hearing constituted a final judgment.
III. THE TRIAL COURT HAD PLENARY POWER TO CORRECT ITS PRIOR ORDERS AND ADOPT THE AJ'S ORDER
A. Applicable Law
Plenary power is "the court's power to dispose of any matter properly before it." Esty v. Beal Bank S.S.B., 298 S.W.3d 280, 295 (Tex. App.-Dallas 2009, no pet.). The term "plenary" means "full," "complete," or "entire." Id. A trial court has plenary power over its judgment until it becomes final. Fruehauf Corp. v. Carrillo, 848 S.W.2d 83, 84 (Tex. 1993) (per curiam). A court may reconsider its orders and has the power to set them aside at any time before its plenary power expires. See id.; Esty, 298 S.W.3d at 295. As a result, a court possesses "full authority to determine motions during its plenary jurisdiction." Esty, 298 S.W.3d at 295.
A trial court retains jurisdiction and plenary power over its judgment for a minimum of thirty days after signing a final judgment and, upon a timely filed postjudgment motion for new trial or motion to modify, correct, or reform the judgment, up to an additional seventy-five days thereafter. Lane Bank Equip. Co. v. Smith S. Equip., Inc., 10 S.W.3d 308, 310 (Tex. 2000); see Tex. R. Civ. P. 329b. Within this time period, the trial court's power to modify its judgment has been described as "practically unlimited" or "virtually absolute" and "is perhaps the strongest of all the trial court's powers." See Esty, 298 S.W.3d at 294-95; Salazar v. Butler & Binion, 843 S.W.2d 763, 764 (Tex. App.-Houston [14th Dist.] 1992, no pet.).
B. The June 29 Order was the final judgment, and the trial court had plenary power when it signed the final judgment.
Because neither May order setting a hearing date was a final judgment, the trial court had plenary power over the case at the time the trial judge signed the final judgment on June 29, 2022, which also corrected and set aside those prior scheduling orders. That order adopting the AJ's Order was the final judgment which started the plenary power time periods described by Rule 329b. The court did not lose plenary power to sign a final judgment before it signed its final judgment.
C. Even under father's assertion that his scheduling orders were final judgments, the court would have retained plenary power to modify a final judgment.
Father's argument that the trial court's plenary power terminated when it signed the May 25 Order Setting Hearing is without merit. A court's plenary power to modify or correct its judgment extends for thirty days after signing, and it is extended by up to seventy-five more days if, within that time, a party files a motion to modify, correct, or reform a judgment. See Tex. R. Civ. P. 329b(c),(e), (g).
Even if Father's May 16 or May 25 scheduling orders had been final judgments, the OAG filed its motion to modify, correct, or reform the judgment on June 6, within thirty days. That motion would have extended the court's plenary power until as late as the end of August. Therefore, the trial court's June 29 final judgment would have been signed within its plenary power, even under Father's argument that his scheduling orders were final judgments.
IV. CONCLUSION
The orders setting hearing dates were not final judgments, and the trial court had plenary power to correct or set aside its prior orders when it entered its final judgment. We affirm the order of the trial court dated June 29, 2022.
JUDGMENT
In accordance with this Court's opinion of this date, the order of the trial court dated June 29, 2022, is AFFIRMED.
It is ORDERED that appellees THE OFFICE OF THE ATTORNEY GENERAL OF TEXAS and SHANEKA SHUNTAE MARKS MOSS recover their costs of this appeal from appellant RENICKE RESHUAD MOSS.
Judgment entered.