DISMISS and Opinion Filed October 23, 2013




                                            Court of Appeals
                                                             S     In The


                                     Fifth District of Texas at Dallas
                                                         No. 05-13-01196-CV

                                       IN THE INTEREST OF J.L.H., A CHILD

                                 On Appeal from the 330th Judicial District Court
                                              Dallas County, Texas
                                       Trial Court Cause No. DF-93-2714

                                           MEMORANDUM OPINION
                                     Before Justices FitzGerald, Francis, and Myers
                                             Opinion by Justice FitzGerald
           In a letter dated September 19, 2013, the Court questioned its jurisdiction over this

appeal. Specifically, it appears the order being appealed is not a final, appealable order. We

instructed the parties to file jurisdictional briefs addressing our concern.

           Appellant is appealing the associate judge’s order awarding child support arrearages

signed on July 24, 2013. The associate judge conducted a hearing, but it was not recorded. Prior

to the hearing, the parties signed a written agreement that if either party wished to appeal the

associate judge’s ruling, the appeal would be taken directly to this Court and not to the referring

court.1 At the hearing, the parties informed the associate judge of their agreement. In his brief,

appellant contends that he objected when no reporter was available to record the hearing. In his

reply brief, appellant states that the parties’ waiver agreement was contingent upon the hearing

   1
       The agreement was not filed with the trial court until August 6, 2013.
being recorded. The associate judge’s order does not mention the parties’ waiver of a de novo

review before the referring court. Despite the waiver agreement, appellant timely filed a request

with the referring court for a de novo hearing. Appellant contends the associate judge considered

the agreement void. Appellee counters that the parties effectively waived their right to a de novo

hearing. For reasons set forth below, we conclude the order appealed is not final regardless of

the status of the waiver agreement.

         We have jurisdiction to consider an appeal from a final order rendered under Title 5 of

the Family Code, which includes orders on child support.             See TEX. FAM. CODE ANN.

§ 109.002(b) (West Supp. 2012); Brejon v. Johnson, 314 S.W.3d 26, 33 (Tex.App.—Houston

[1st Dist.] 2009, no pet.). With the exception of certain limited circumstances not applicable to

this case, an associate judge does not have the power to render a final judgment. See TEX. FAM.

CODE ANN. § 201.007(a)(14) & (a)(16) (West 2008).

         The family code provides that, if the right to a de novo hearing is waived, “the proposed

order or judgment of the associate judge becomes the order or judgment of the referring court

only on the referring court’s signing the proposed order or judgment.” See TEX. FAM. CODE

ANN. § 201.013(b) (West 2008). Moreover, if a party timely requests a de novo hearing, the

referring court must conduct a hearing. See TEX. FAM. CODE ANN. § 201.015(f) (West Supp.

2012).

         In his jurisdictional brief, appellant acknowledges the statutory requirement that the

referring judge must sign the order. He states that “no one in the office of the clerk of the 330th

Family District Court seems to be aware of this statutory requirement.” In her jurisdictional

brief, appellee agrees that “this case sits in limbo” because the parties waived their right to a de

novo hearing and the referring court has not signed the associate judge’s order.




                                                –2–
       Thus, assuming the parties’ waiver agreement is valid, the associate judge’s order is not

final because it has not been signed by the referring court.        See TEX. FAM. CODE ANN.

§ 201.013(b) (West 2008). On the other hand, assuming the parties’ waiver agreement is invalid,

appellant timely requested a de novo hearing with the referring court and that court must hold a

hearing. See TEX. FAM. CODE ANN. § 201.015(f) (West Supp. 2012). Either way, further action

is needed by the referring court, whether that be the referring court’s signature on the associate

judge’s order or a de novo hearing before the referring court. Because the associate judge’s

order is not final, this Court lacks jurisdiction. Accordingly, we dismiss the appeal for want of

jurisdiction. See TEX. R. APP. P. 42.3(a).




                                                     /Kerry P. FitzGerald/
                                                     KERRY P. FITZGERALD
131196F.P05                                          JUSTICE




                                               –3–
                                      S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                     JUDGMENT

IN THE INTEREST OF J.L.H., A CHILD                On Appeal from the 330th Judicial District
                                                  Court, Dallas County, Texas.
No. 05-13-01196-CV       V.                       Trial Court Cause No. DF-93-2714.
                                                  Opinion delivered by Justice FitzGerald.
                                                  Justices Francis and Myers, participating.


      In accordance with this Court’s opinion of this date, the appeal is DISMISSED.

       It is ORDERED that appellee, Frances Reese, recover her costs of this appeal from
appellant, John Lee Huffer.


Judgment entered October 23, 2013




                                                  /Kerry P. FitzGerald/
                                                  KERRY P. FITZGERALD
                                                  JUSTICE




                                            –4–
