









Reversed and Remanded and Opinion filed August 26, 2004








Reversed and Remanded and Opinion filed August 26,
2004.
 
 
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-03-01110-CV
____________
 
IN THE INTEREST OF
G.S.G., A CHILD
 
 

 
On Appeal from the 246th
District Court
Harris County, Texas
Trial Court Cause No. 01-26542
 

 
O P I N I O N
The Office of the Attorney General (AAttorney General@) appeals the
dismissal of a motion for enforcement of child support.  The trial court dismissed the action after it
found sua sponte that the underlying order establishing the parent-child
relationship was void and unenforceable because it was in the form of a final
order and had been signed by a child support master rather than a district
court judge.  In three issues, the
Attorney General challenges the trial court=s findings and
contends that a proposed order under section 201.1041 of the Family Code can be
in the form of an order and need not contain language of recommendation.  We reverse and remand.
 




Background
On October 23, 2001, a child support
master[1]
signed an agreed order that established appellee Simeon Garcia as the father of
G.S.G.  The order entitled AAgreed Order
Establishing the Parent-Child Relationship@ included
provisions to address the child support obligations of Garcia.  Garcia did not appeal the determinations of
the master to the district court.
The Attorney
General filed a motion for enforcement of child support based on the provisions
in the agreed order in April of 2003. 
Before any evidence was taken in the case, the trial court determined
sua sponte that the underlying paternity order was void and unenforceable.  In dismissing the case, the trial court made
the following findings of fact and conclusions of law:
$      
The
agreed final order does not purport to be a recommendation by the child support
master to the district judge.
$      
The
agreed final order was never signed by the district judge of the referring
court.
$      
The
agreed final order does not reflect that the party may appeal the order by the
child support master.
$      
Under
section 201.104 of the Family Code, a master may recommend to the referring
court any order after a trial on the merits. 
The master did not have the authority to sign the agreed order because
it does not purport to be a recommendation to the referring court.
$      
Family
Code section 201.102 grants to a master the same general powers of an associate
judge.  This does not include the power
to sign any final order; the child support master had no power to sign the
order.
$      
The
agreed order is not an order of the referring court and is void, of no effect,
and unenforceable.




Neither the
caption of the order nor the signature line of the master contains the words Aproposed@ or Arecommended.@  At issue in this appeal then is whether a
master=s proposed order
must include language of recommendation and whether the order must give written
notice of a party=s right to appeal.
Analysis
In three issues,
the Attorney General argues the trial court committed clear legal error by
dismissing the Attorney General=s child support
enforcement action on the basis that it lacked jurisdiction to hear the matter
because the order was void and unenforceable. 
A court is obligated to determine sua sponte if it has jurisdiction to
hear a case.  Tex. Ass=n of Bus. v. Tex.
Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993).  However, a trial court=s finding that it
lacks subject‑matter jurisdiction is a question of law subject to de novo
review.  TNRCC v. IT-Davy, 74
S.W.3d 849, 855 (Tex. 2002).
The Family Code
authorizes a trial court judge to refer certain family law matters to either
associate judges or to child support masters. 
See generally Tex. Fam.
Code Ann. '' 201.001B.208 (Vernon 2002
& Supp. 2004B05). 
The trial court judge can appoint an associate judge to hear any matter
over which the trial court has jurisdiction under Title I or IV.  Tex.
Fam. Code Ann. ' 201.005. 
The trial court can appoint a master to hear only matters relating to
child support.  Tex. Fam. Code Ann. ' 201.101.  The Family Code treats associate judges and
child support masters differently.  For
example, when no notice of appeal is filed, the recommendation of an associate
judge does not become the final order of the court unless ratified by the trial
judge.  Tex.
Fam. Code Ann. ' 201.013(b).  In contrast, when no notice of appeal is
filed, the recommendation of a child support master becomes the final order of
the court by operation of law without ratification by the referring court.[2]  Tex.
Fam. Code Ann. ' 201.1041(a).  This streamlined procedure exists because, as
a condition of receiving federal funds, Texas must have in effect Alaws providing for
expedited processes to establish and enforce child support obligations.@  House
Comm. on Juvenile Justice & Fam. Issues, Bill Analysis, Tex. H.B.
823, 78th Leg., R.S. (2003).  




The powers and
duties of a child support master include taking testimony and making a record
in ATitle IV‑ D@ cases and
rendering and signing any order that is not a final order on the merits.  Tex.
Fam. Code Ann. ' 201.104.[3]  Here, the trial court referred the initial
case establishing the parent-child relationship to a child support master, and
the master signed an agreed order that did not contain language of
recommendation.  The trial found that,
absent language of recommendation, the order is void and unenforceable.  We disagree.
Invalidating the
order because it does not contain the words Arecommended@ or Aproposed@ elevates form
over substance.  In re S.M.E., No.
14-02-00350-CV, 2003 WL 124401, at *1B2 (Tex. App.CHouston [14th
Dist.] Jan. 16, 2003, pet. denied) (mem. op.). 
In S.M.E., a juvenile-law master erroneously included a notice of
right to appeal in her proposed orderCa right not
conferred to a party under the relevant code. 
Id. at *2.  We rejected
appellant=s argument that the language in the order
created a right of appeal, finding the relevant code controlled the parties= rights and the
order could not provide an avenue of appeal that did not exist by statute.  Id. 





Similarly here,
there is no express requirement that a child support master=s proposed order
contain language of recommendation.  The
Code states simply that the Areport may contain
the [master=s] findings, conclusions, or
recommendations, including a proposed order. 
The . . . report must be in writing in the form directed by the
referring court.  The form may be a notation
on the referring court=s docket sheet.@  Tex.
Fam. Code Ann. ' 201.011(a).[4]  Regardless of whether it contains language of
recommendation, the proposed order is not a final order upon signing.  It cannot become a final order of the court
unless neither party appeals the master=s findings.  Moreover, if a party appeals, the trial court
is free to adopt or reject the recommendation of the master.  Tex.
Fam. Code Ann. ' 201.014(1).  Accordingly, we find that the order in this
case was only a proposed order when the master signed it and it did not have to
contain language of recommendation because the provisionary status of the order
is prescribed by statute.[5]
The trial court
also found that the order was deficient because it did not contain a notice of
the parties= right to appeal.  The Family Code requires a master to inform
the parties of the right but provides that such notice may be given by oral
pronouncement or in writing.  Tex. Fam. Code Ann. ' 201.011.  Because the Family Code does not require
written notice, we find that a proposed order need not contain a notice of the
right to appeal.
We hold the trial
court erred in dismissing the Attorney General=s motion for
enforcement of child support.  We sustain
the Attorney General=s three issues, and reverse and remand
this case for further proceedings consistent with this opinion.
 
 
 
/s/      Leslie
Brock Yates
Justice
 
 
 
 
Judgment rendered and Opinion filed
August 26, 2004.
Panel consists of Justices Yates,
Anderson, and Hudson.
 




[1]  Since the
rendition of the order dismissing the motion to enforce child support, the
legislature has changed the title of Child Support Master to Associate Judge
for Title IV-D cases.  See Act of
May 27, 2003, 78th Leg., R.S., ch. 1258, ''
2B15, 25B28, 2003 Tex. Gen. Laws 3564, 3564B68, 3570 (eff. Sept. 1, 2003).  For ease of reference, we will use the title
in effect at the time the trial court entered its order.


[2]  The trial
court judge must sign a master=s report recommending enforcement by contempt or the immediate
incarceration of a party.  Tex. Fam.
Code Ann. ' 201.1041.  Because the
order at issue in this case does not involve contempt or incarceration, we will
not address the special provisions related to such orders.


[3]  Any party may appeal the
recommendation of a child support master by filing a notice of appeal with the
trial court judge within three days of receiving notice of the
recommendation.  Tex. Fam. Code Ann. '' 201.1042, 201.015. 
Once the notice of appeal is filed, the trial court judge must conduct a
hearing de novo addressing the issues raised. 
Id.


[4]  Although the
specific form of the master=s report is not covered in the chapter dealing with
child support masters, the chapter directs that, except as otherwise provided,
the provisions relating to an associate judge apply to a master.  Tex. Fam. Code Ann. ' 201.102.  Notably, a
written notation of Agranted@ in the
trial court=s docket sheet has been held as a sufficient
recommendation from an associate judge.  Robles
v. Robles, 965 S.W.2d 605, 609 (Tex. App.CHouston
[1st Dist.] 1998, no pet.).


[5]  Appellee
argues that proposed orders issued by child support masters in Dallas County
contain language of recommendation. 
Although this may be a better practice, nothing in the statute requires
such language.


