In Re Dobbins

OPINION

Opinion by

This original proceeding involves the validity of a seventeen-year-old divorce decree. Relator Charles Allan Dobbins, who is the subject of a motion to confirm more than $188,000 in child support arrearage, argues the divorce decree awarding child support is void because the trial court had lost plenary power over the case at the time the decree was signed. The current judge of the 303rd Judicial District Court, the Honorable Dennise Garcia, rejected Dobbins’s argument and denied his motion to dismiss for lack of jurisdiction.

In a single issue, Dobbins contends the trial court abused its discretion in denying the motion. For reasons set out below, we conclude the original trial court had jurisdiction over the divorce action when the decree was signed; consequently, the trial court did not err in denying the motion to dismiss.

In July 1990, Yvette Crabtree Dobbins (now known as Yvette Crabtree Dobbins-Banks) filed a petition for divorce to end her marriage to Dobbins. One week later, the trial court issued a scheduling order that, among other things, placed the case on the November 16, 1990 dismissal docket. On November 21, 1990, Judge Sue B. Lykes signed an order dismissing the cause for want of prosecution. Thirty days later, on December 21, 1990, Dobbins-Banks filed a motion to reinstate the case. The motion, however, was not verified. On January 2, 1991, Judge Lykes signed an order reinstating the cause. On April 10, 1991, Judge Lykes signed the Agreed Final Decree of Divorce, appointed Dobbins-Banks managing conservator of the parties’ sixteen-month-old daughter, T. D., and ordered Dobbins to pay $600 per month in child support.

Over the next sixteen years, both parties operated with the understandable assumption that they were divorced. Both remarried other people and had other children. Then, in January 2007, the trial court signed an order terminating Dobbins’s rights to T.D. after finding that Dobbins had executed an unrevoked or irrevocable affidavit of relinquishment of parental rights. Four months later, the Office of the Attorney General filed a motion to confirm a child support arrearage in excess of $188,000 against Dobbins regarding his obligations to T.D.

Dobbins responded by filing the following: (1) an original petition for divorce in the 256th Judicial District Court; (2) a response in opposition to the motion to confirm arrearage; and (3) a motion to dismiss the motion to confirm arrearage for lack of jurisdiction. The crux of the pleadings was that the original divorce decree was “ineffective” because the divorce action was dismissed and was not reinstated within the trial court’s plenary jurisdiction. Dobbins asked the trial court to “immediately terminate the Order of Withholding and all other collection devices that the Attorney General may have placed in operation.” His newly-filed petition for divorce also alleged the previous divorce was “ineffective.”

*396The trial court held a hearing on the motion to dismiss at which time three exhibits were admitted as evidence: (1) the November 21, 1990 Order of Dismissal for Want of Prosecution, (2) the December 21, 1990 unverified motion to reinstate, and (3) the January 2, 1991 Order to Reinstate. Dobbins argued the trial court’s plenary power expired on December 21, 1990, and any orders signed after that date, including the divorce decree, were void. The trial court denied the motion.

In this proceeding, Dobbins argues that because the December 21, 1990 motion to reinstate was unverified, it failed to extend the trial court’s plenary power. He relies on the Texas Supreme Court’s decision in McConnell v. May, 800 S.W.2d 194 (Tex.1991) (orig.proceeding) (per curiam), and its progeny. In McConnell, the supreme court concluded that because the party had not filed a verified motion to reinstate within thirty days of the signing of the order of dismissal, the trial court’s jurisdiction to reinstate the case expired. McConnell, 800 S.W.2d at 194. Since McConnell, courts have routinely concluded that only verified motions to reinstate extend a trial court’s plenary power. See Macarangal v. Andrews, 838 S.W.2d 632, 633 (Tex.App.-Dallas 1992, orig. proceeding); Andrews v. Stanton, 198 S.W.3d 4, 7 (Tex.App.-El Paso 2006, no pet.) (unverified motion does not extend trial court’s plenary power); In re Garcia, 94 S.W.3d 832, 833 (Tex.App.-Corpus Christi 2002, orig. proceeding) (same); 3V, Inc. v. JTS Enters., Inc., 40 S.W.3d 633, 538 (Tex.App.-Houston [14th Dist.] 2000, no pet.); In re Montemayor, 2 S.W.3d 542, 545 (Tex.App.-San Antonio 1999, orig. proceeding) (same); Owen v. Hodge, 874 S.W.2d 301, 303 (Tex.App.-Houston [1st Dist.] 1994, no pet.) (same).

In its most recent opinion on motions to reinstate, however, the supreme court questioned the continued validity of the McConnell decision. See Guest v. Dixon, 195 S.W.3d 687, 688-89 (Tex.2006) (per curiam). In Guest, the court was asked to decide whether a motion to reinstate, supported only by the affidavit of the movant’s former attorney, extended the time for filing an appeal. The court recognized its previous holdings in McConnell and in Butts v. Capitol City Nursing Home, Inc., 705 S.W.2d 696, 697 (Tex.1986) (per cu-riam), that an unverified motion to reinstate does not extend the deadlines for filing appeals or the trial court’s plenary power. However, the court also recognized that it has since “repeatedly stressed that procedural rules should be construed and applied so that the right of appeal is not necessarily lost to technicalities.” Guest, 195 S.W.3d at 688. The Court then “assumed” that the rule in Butts and McConnell survived the later cases and concluded the motion was properly verified by the affidavit of the former attorney “who was aware of the facts regarding its prosecution.” Id. at 688-89. As the court explained, “To hold that the motion could not be supported by the affidavit of Guest’s former attorney could deprive the party of the best evidence available. The rule does not require such a result.” Id. at 689.

Here, the motion was not verified and no affidavit was attached to it. However, the order granting reinstatement shows that it was “approved” by the court master “RLN” on “12-21-90.” 1 The only logical conclusion we can draw from this notation, given that the order recites that the mo*397tion and evidence were heard on December 21, 1990, is that the court master heard the motion on the thirtieth day, and after hearing evidence and argument, recommended to the presiding judge that the motion be granted.

Verification is “[a] formal declaration made in the presence of an authorized officer, such as a notary public, by which one swears to the truth of the statements in the document.” Andrews, 198 S.W.3d at 8 (citing Black’s law dictionaky 556 (7th Ed.1999)). An affidavit is statutorily defined as “a statement in writing of a fact or facts signed by the party making it, sworn to before an officer authorized to administer oaths, and officially certified to by the officer under his seal of office.” Id. (citing Tex. Gov’t Code Ann. § 312.011(1) (Vernon 2005)). Thus, a verification declares that the facts contained in a certain document are true, while an affidavit contains facts stated under oath.

Here, the court master conducted a hearing on the motion at which sworn evidence was taken, presumably on the very facts that would be alleged in a motion to reinstate and verified, or set forth and sworn to in an accompanying affidavit. After hearing this evidence, the court master recommended approving the motion. Given the supreme court’s directive in Guest that we liberally construe procedural rules so decisions turn on substance rather than procedural technicality, we conclude the combination of the evidentia-ry hearing with the court master’s recommendation of approval, within the thirty days, was an adequate substitute for the more technical verification requirement of McConnell. See Guest, 195 S.W.3d at 689; see also Fed. Lanes, Inc. v. City of Houston, 905 S.W.2d 686, 689 (Tex.App.Houston [1st Dist.] 1995, writ denied) (concluding that timely filed joint motion to reinstate satisfies verification requirement and trial court therefore had jurisdiction to consider motion). Consequently, the trial court’s plenary power was extended, and the trial court had plenary power to grant the motion to reinstate on January 2, 1991.

We deny the petition for writ of mandamus.

MOSELEY, J., Dissenting.