in the Interest of E. H., a Minor Child ( 2021 )

Affirm and Opinion Filed August 25, 2021
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01205-CV
IN THE INTEREST OF E. H., A MINOR CHILD
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-18-18908
MEMORANDUM OPINION
Before Justices Osborne, Pedersen, III, and Nowell
Opinion by Justice Pedersen, III
Calvin Mabvurunge appeals the trial court’s order adjudicating him as E.H.’s
father and ordering him to pay monthly child support, prenatal and postnatal
healthcare expenses, and retroactive child support to appellee Tendai Chimbewa. In
four issues, Mabvurunge contends the trial court abused its discretion in (i) ordering
him to submit to genetic testing; (ii) “divesting [him] of parental rights;”
(iii) ordering him to pay child support, prenatal and postnatal healthcare expenses,
and retroactive child support; and (iv) ordering him to pay Chimbewa’s attorney’s
fees. We affirm the judgment of the trial court.
I. BACKGROUND AND PROCEDURAL HISTORY
Chimbewa claims she and Mabvurunge are the parents of E.H. who was born
on September 19, 2016. At the time E.H. was conceived and this case was tried,
Mabvurunge was married to Rumbidsai Mabvurunge and Chimbewa was married to
Earl Hoover.
On September 17, 2018, Chimbewa filed suit against Mabvurunge and sought
an order from the trial court that Mabvurunge pay child support and “an equitable
portion of all prenatal and postnatal health-care expenses of the mother and the
child” and retroactive child support. Mabvurunge resides in Washington State and
was served by alternative service on November 10, 2018. On January 2, 2019,
Chimbewa served Mabvurunge with a subpoena to appear and testify at a temporary
orders hearing on January 8, 2019, before the Associate Judge of the trial court.
On January 8, 2019, Associate Judge Donald Turner held a hearing at which
Mabvurunge failed to appear. Associate Judge Turner ordered Mabvurunge to
submit to genetic testing on or before January 15, 2019. Chimbewa served this order
on Mabvurunge, but he did not submit to genetic testing on or before January 15,
2019.1 On May 23, 2019, the trial court held a hearing at which Chimbewa and
Mabvurunge appeared, and District Judge Ashley Wysocki ordered Mabvurunge to
1
On January 13, 2019, Mabvurunge emailed Chimbewa’s counsel partial photographs of a Motion to
Set Aside Default Judgment and Notice of Hearing—which was dated January 12, 2019, and referred to a
“default judgment” the trial court entered on January 8, 2019. The record contains no default judgment
against Mabvurunge.
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submit to genetic testing. Mabvurunge submitted to genetic testing, and the results
showed Mabvurunge had a 99.99999997% probability of paternity of E.H.
At the final trial on July 29, 2019, Chimbewa and Mabvurunge testified, and
several documents were admitted into evidence—including Mabvurunge’s genetic
testing results. Chimbewa’s counsel testified as to her attorney’s fees. The trial court
found Mabvurunge is E.H.’s father and entered several orders appointing
(i) Chimbewa as the sole-managing conservator and child support obligee and
(ii) Mabvurunge as the possessory conservator and child support obligor. The trial
court granted judgment in favor of Chimbewa for prenatal and postnatal healthcare
expenses and for retroactive child support. The trial court ordered Mabvurunge to
make monthly payments toward these judgments and to pay cash medical support.
The trial court granted judgment in favor of Chimbewa for her attorney’s fees. The
final order was consistent with the trial court’s July 29, 2019 order, and was signed
by the trial court on August 27, 2019. This appeal followed.
II. ISSUES RAISED ON APPEAL
Appellant raises four issues on appeal, which we reproduce verbatim:
i. Did the trial court abuse its discretion in prematurely ordering
Calvin to submit to genetic testing?
ii. Did the trial court abuse its discretion in divesting Calvin of
parental rights in the same suit it judged him the likely father?
iii. Did the trial court abuse its discretion in ordering Calvin to pay
Tendai excessive retroactive support, and excessive prospective
support, above that authorized by law?
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iv. Did the trial court abuse its discretion in ordering Calvin to pay
Tendai’s attorney’s fees incurred in her Motions to Adjudicate
Parentage suit?
III. PRO SE APPELLANT AND ERROR PRESERVATION
Mabvurunge is pro se in this case. Texas Rule of Appellate Procedure 38.1(i)
requires an appellant’s brief to “contain a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.” TEX.
R. APP. 38.1(i). We liberally construe pro se pleadings and briefs. Washington v.
Bank of N.Y., 362 S.W.3d 853, 854 (Tex. App.—Dallas 2012, no pet.). However, we
hold pro se litigants to the same standards as licensed attorneys and require them to
comply with applicable laws and rules of procedure. Mansfield State Bank v. Cohn,
573 S.W.2d 181, 184–85 (Tex. 1978); Washington, 362 S.W.3d at 854. To do
otherwise would give a pro se litigant an unfair advantage over a litigant who is
represented by counsel. Cohn, 573 S.W.2d at 184–85. Thus, even liberally
construed, the appellant must make some specific argument and analysis showing
that the record and law support appellant’s contentions. See Strange v. Cont’l Cas.
Co., 126 S.W.3d 676, 678 (Tex. App.—Dallas 2004, pet. denied) (“An issue on
appeal unsupported by argument or citation to any legal authority presents nothing
for the court to review.”).
“The failure to adequately brief an issue, either by failing to specifically argue
and analyze one’s position or provide authorities and record citations, waives any
error on appeal.” In re B.A.B., 124 S.W.3d 417, 420 (Tex. App.—Dallas 2004, no
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pet.). Our ability to resolve substantive legal questions depends on whether that
argument was first preserved in the trial court. See TEX. R. APP. 33.1(a)(2) (error
preservation is “a prerequisite to presenting a complaint for appellate review”).
Texas Rule of Appellate Procedure 33.1 provides several different ways to preserve
error. See TEX. R. APP. 33.1(a)(1) (preservation can be accomplished by “request,
objection, or motion”). The “party seeking to preserve a legal argument for our
review usually must invoke a procedure that apprises the trial court of the argument
in a way that calls for the trial court to decide that issue.” TXU Portfolio Mgmt. Co.,
L.P. v. FPL Energy, LLC, 529 S.W.3d 472, 480 (Tex. App.—Dallas 2016, no pet.).
This type of error preservation is typically completed by legal objection based on
the Texas Rules of Evidence or the Texas Rules of Civil or Appellate Procedure. See
id.Our Court has addressed error preservation and our responsibilities thereof in
Bolling v. Farmers Branch Independent School District:
We are not responsible for identifying possible trial
court error. See Canton-Carter v. Baylor College of Medicine, 271
S.W.3d 928, 931 (Tex. App.—Houston [14th Dist.] 2008, no pet.). We
are not responsible for searching the record for facts that may be
favorable to a party’s position. See Fredonia State Bank v. Gen. Am.
Life Ins. Co., 881 S.W.2d 279, 283–84 (Tex. 1994); Strange, 126
S.W.3d at 678. And we are not responsible for doing the legal research
that might support a party’s contentions. See Canton-Carter, 271
S.W.3d at 931–32. Were we to do so, even for a pro se litigant untrained
in law, we would be abandoning our role as judges and become an
advocate for that party. See Valadez v. Avitia, 238 S.W.3d 843, 845
(Tex. App.—El Paso 2007, no pet.).
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315 S.W.3d 893, 895 (Tex. App.—Dallas 2010, no pet.).
IV. STANDARD OF REVIEW
Parentage suits are reviewed under the abuse-of-discretion standard and the
trial court’s decision “will only be disturbed when it is clear the court acted in an
arbitrary and unreasonable manner.” Interest of A.M.R., No. 05-21-00235-CV, 2021
WL 2948555, at *4 (Tex. App.—Dallas June 29, 2021, no pet. h.) (mem. op.). In
family law cases, the traditional sufficiency standards of review overlap with the
abuse-of-discretion standard of review; thus, legal and factual insufficiency are not
independent grounds of error but are relevant factors in our assessment of whether
the trial court abused its discretion. Id.To determine whether there has been an abuse of discretion because the
evidence is legally or factually insufficient to support the trial court’s decision, we
must determine (i) whether the trial court had sufficient evidence upon which to
exercise its discretion and (ii) whether the trial court erred in its application of that
discretion. Id. Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278-79 (Tex.
1987). We review a trial court's ruling on the admissibility of evidence for an abuse
of discretion. Owens–Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex.1998); Al–Nayem Int’l Trading, Inc. v. Irving Indep. Sch. Dist., 159 S.W.3d
762, 763 (Tex. App.—Dallas 2005, no pet.).
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V. DISCUSSION
Issue One: Did the trial court abuse its discretion in prematurely ordering
Calvin to submit to genetic testing?
Mabvurunge’s first issue complains of the trial court’s order that required him
to submit to genetic testing. However, the trial court ordered him to submit to genetic
testing before the final trial, and such an order is not included in the August 27, 2019
judgment. Mabvurunge’s notice of appeal does not appeal any order other than the
final judgment; his notice of appeal specifically provides:
2. The judgment or order appealed from was signed on August 27,
2019.
3. Calvin G. Mabvurunge desires to appeal from all portions of the
judgment.
Thus, to the extent that Mabvurunge sought to raise an issue as to the trial court’s
genetic testing order, we must conclude his briefing is inadequate.2
During trial, the following exchange occurred as to the admission of Exhibit
29, the genetic testing results regarding Mabvurunge’s paternity of E.H.:
[CHIMBEWA’S COUNSEL] Your Honor, at this time I would offer
Exhibit No. 29.
[THE COURT]: Any objection to Exhibit 29?
[MABVURUNGE]: Yes, ma’am. I object to Exhibit 29, and my
objection—and my objection is I think the DNA testing is premature.
[THE COURT]: That’s overruled.
2
We further note that the record does not indicate Mabvurunge objected to any prior order, including
the May 23, 2019 order, for him to submit to genetic testing.
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Thus, Mabvurunge failed to raise a legal objection to admission of the genetic testing
result during trial.3 Nevertheless, Mabvurunge directs us to Amanda v. Montgomery
in his briefing to argue that the paternity test results were “fruit of the poisonous
tree” and, therefore, inadmissible. 877 S.W.2d 482, 486–87 (Tex. App.—Houston
[1st Dist.] 1994, orig. proceeding). In Amanda, our sister court held that a trial court
cannot grant an order for genetic testing when requested by an individual who had
not made a prima facie showing that he is entitled to bring a proceeding to adjudicate
parentage or disprove the father-child relationship. Id. (granting mandamus relief
from an order for genetic testing requested by a presumed father who had failed to
make a prima facie showing that his bill of review challenging paternity was not
barred as a matter of law).
However, the instant suit was brought by the mother of the child within four
years of the child’s birth under chapter 160 of the Texas Family Code. TEX. FAM.
CODE ANN. § 160.602(a)(2) (“ . . . a proceeding to adjudicate parentage may be
maintained by (2) the mother of the child.”); FAM. § 160.607(a) (a proceeding
brought by . . . the mother . . . to adjudicate the parentage of a child having a
presumed father shall be commenced not later than the fourth anniversary of the date
of the birth of the child.). That is, unlike the petitioner in Amanda, Chimbewa was
entitled to bring suit to adjudicate parentage—without the requirement to make a
3
See generally TEX. FAM. CODE ANN. § 160.621 (defining the admissibility of results of genetic
testing).
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prima facie showing—because she (i) was the mother of the child and (ii) brought
suit within four years of E.H.’s birth. See FAM. §§ 160.602(a)(2), 160.607(a).
Accordingly, the trial court had the authority to order Mabvurunge to submit to
genetic testing at any time during this proceeding. See FAM. § 160.502(a) (“a court
shall order a child and other designated individuals to submit to genetic testing if the
request is made by a party to a proceeding to determine parentage”), FAM. §160.508
(permitting genetic testing of parents, siblings, children, and relatives of a man who
may be the father of a child for good cause, when all individuals are not available),
FAM. § 160.622(c) (defining the consequences for declining genetic testing).
The remainder of Mabvurunge’s arguments on this issue refer to (i) Hoover’s
procedural service in the suit, which is not relevant to his issue, and (ii) facts that are
not in the record. We cannot consider matters not adequately brought within the trial
court record as our appellate record is limited to the trial court record. See TEX. R.
APP. 34.5–34.6. Mabvurunge has failed to provide appropriate citations to the record.
TEX. R. APP. 38.1(i).Mabvurunge has failed to properly brief his first issue.
Accordingly, we overrule Mabvurunge’s first issue.
Issue Two: Did the trial court abuse its discretion in divesting Calvin of
parental rights in the same suit it judged him the likely father?
In his second issue, Mabvurunge complains of the conservatorship rights that
the trial court appointed to him. His brief does not contain a clear argument for his
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contentions.4 Furthermore, his briefing on this issue raises several facts that are
without citation, which we cannot locate in the record. Mabvurunge has not properly
briefed this issue. We overrule Mabvurunge’s second issue. See TEX. R. APP. 38.1(i);
In re B.A.B., 124 S.W.3d at 420.
Issues Three: Did the trial court abuse its discretion in ordering Calvin to pay
Tendai excessive retroactive support, and excessive prospective support, above
that authorized by law?
In his third issue, Mabvurunge complains of the trial court’s child support
determination and order to pay retroactive child support. “A trial court has broad
discretion in setting child support payments.” In re P.C.S., 320 S.W.3d 525, 540
(Tex. App.—Dallas 2010, pet. denied). Regarding an order for child support, Texas
Family Code § 154.001 provides:
(a) The court may order either or both parents to support a child in the
manner specified by the order:
(1) until the child is 18 years of age or until graduation from high
school, whichever occurs later;
(2) until the child is emancipated through marriage, through
removal of the disabilities of minority by court order, or by other
operation of law;
(3) until the death of the child; or
(4) if the child is disabled as defined in this chapter, for an
indefinite period.
FAM. § 154.001(a). The Texas Family Code calculates an obligor’s child support
obligation by first determining monthly net resources. FAM. §§ 154.061–.062. Here,
4
The record contains no counterpetition, requested relief, or separate requests for conservatorship or
possession and access from Mabvurunge.
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the record contains documents and testimony regarding Mabvurunge’s gross
income. The record contains pay stubs and a W–2 statement that indicate
Mabvurunge earned about $4,500 each month from his work as an assistant manager
at a store in Washington.5 Chimbewa testified that Mabvurunge received rental
income from a property he owned in Aubrey, Texas.6 Mabvurunge testified he
received no rental income.
As the fact finder in a bench trial, a trial court may choose to believe one
witness and disbelieve another. See In re J.A.L., No. 05–12–00298–CV, 2013 WL
4399192, at *3–4 (Tex. App.—Dallas Aug. 15, 2013, no pet.) (mem.op.) (citing City
of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)). The fact finder is the sole
judge of the credibility of the witnesses and the weight to be given their testimony.
Id. We will not disturb the trial court’s resolution of evidentiary conflicts that turn
on credibility determinations or the weight of the evidence. City of Keller, 168
S.W.3d at 819. Here, in light of the record before us, we cannot conclude the trial
court’s finding of Mabvurunge’s gross monthly net resources of $6,979.86 was an
abuse of discretion.
Mabvurunge next asserts that the trial court’s calculation of child support was
incorrect. However, Mabvurunge does not support his argument with a calculation
5
His paystubs showed he earned in excess of $4,500 in some months. The record showed his previous
rent in Washington State was $2,155 each month.
6
The record contains a quitclaim deed indicating Mabvurunge had some ownership in the property
located in Aubrey, Texas.
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based upon the Texas Family Code’s child support guidelines. See Fam. § 154.129
(defining alternative method of computing support for children in more than one
household). Here, the record shows Mabvurunge had one child the subject of this
trial court proceeding and three other children that were not before this trial court,
which Mabvurunge had a duty of support. Thus, the adjusted guideline for
computing his child support obligation is 14.75% of his net resources. See FAM.
§ 154.129. Although Mabvurunge asserts the trial court’s child support obligation in
the amount of $798.90 per month constituted “manifest injustice,” he offers no
citation to support his contention. Accordingly, we cannot conclude the trial court,
in light of the record before us, acted in an arbitrary and unreasonable manner in
determining Mabvurunge’s child support obligation in the amount of $798.90 per
month.
Regarding an order to pay prenatal and postnatal health care expenses and
retroactive child support, Texas Family Code § 160.636 provides:
(g) On a finding of parentage, the court may order retroactive child
support as provided by Chapter 154 and, on a proper showing, order a
party to pay an equitable portion of all of the prenatal and postnatal
health care expenses of the mother and the child.
(h) In rendering an order for retroactive child support under this section,
the court shall use the child support guidelines provided by Chapter
154, together with any relevant factors.
FAM. § 160.636(g)–(h). Here, Chimbewa requested (i) prenatal and postnatal health
care expenses and (ii) retroactive child support in her pleadings and during final trial.
During trial, Chimbewa testified to prenatal and postnatal health care expenses
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amounting to $5,710.77. Mabvurunge did not controvert or contest the amount of
these prenatal expenses. Mabvurunge offered no objection to Chimbewa’s request
for retroactive child support. In light of the evidence before us, we must conclude
trial court’s judgment for retroactive child support of $27,163.15 was in accordance
with child support guidelines. See FAM. §§ 154.129, 160.636(g).7 We must further
conclude the trial court’s calculation of Chimbewa’s prenatal and postnatal health
care expenses—resulting in a judgment in favor of Chimbewa against Mabvurunge
in the amount of $2,855.69—was an equitable division of those costs, not an
arbitrary or unreasonable act. FAM. § 160.636(g). Coupled with our conclusions on
the trial court’s child support determination, we must conclude the trial court did not
abuse its discretion in its child support determination or its according orders that
Mabvurunge pay prenatal and postnatal healthcare expenses and retroactive child
support. We overrule Mabvurunge’s third issue.8
7
At the time of trial, E.H. was 34 months, 11 days old. That time period, multiplied by Mabvurunge’s
child support obligation is approximately $27,163.15.
8
We note Mabvurunge asserts in his briefing to our Court that “the trial court erred in not ordering
Tendai to respond to all of [his] document requests for discovery.” Mabvurunge provides no authority or
record citation regarding his discovery requests on Chimbewa and provides no further briefing. The record
contains Mabvurunge’s answer, filed July 23, 2019, which requested that Chimbewa produce three
documents. Nevertheless, there is nothing in the record to indicate Mabvurunge asked the trial court to
compel Chimbewa to produce any discovery. We pretermit any further discussion as Mabvurunge has
waived his complaint and failed to preserve this issue for our review. See TEX. R. APP. 33.1(a)(2)
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Issues Four: Did the trial court abuse its discretion in ordering Calvin to pay
Tendai’s attorney’s fees incurred in her Motions to Adjudicate Parentage suit?
In his fourth issue, Mabvurunge asserts the trial court abused its discretion in
ordering him to pay Chimbewa’s attorney’s fees. Regarding attorney’s fees in a
proceeding to adjudicate parentage, Texas Family Code § 160.636 provides:
(c) . . . the court may assess filing fees, reasonable attorney’s fees . . .
incurred in a proceeding under this subchapter. Attorney’s fees awarded
by the court may be paid directly to the attorney. An attorney who is
awarded attorney’s fees may enforce the order in the attorney’s own
name.
FAM. § 160.636(c). Here, the record contains Chimbewa’s testimony regarding her
incurrence of attorney’s fees in this proceeding. The record contains Chimbewa’s
counsel’s testimony and affidavit in support of attorney’s fees, which—although
partially redacted—reflect “(1) the particular services performed, (2) who performed
those services, (3) approximately when the services were performed, (4) the
reasonable amount of time required to perform the services, and (5) the reasonable
hourly rate for each person performing the services.” KBIDC Investments, LLC v.
Zuru Toys Inc., No. 05-19-00159-CV, 2020 WL 5988014, at *21 (Tex. App.—
Dallas Oct. 9, 2020, pet. filed), reh’g denied (Dec. 10, 2020) (quoting Rohrmoos
Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex. 2019))
(describing that sufficient evidence of attorney’s fees includes evidence of each of
these five categories).
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At trial, Mabvurunge offered the following objection to the attorney’s fees
evidence:
[THE COURT] Okay. Mr. Mabvurunge, you stated that you had a
chance to review the affidavit. Do you have any objection to the
admissibility of the affidavit?
[MABVURUNGE]: Yes, Your Honor, I do.
[THE COURT] Okay. What’s your objection?
[MABVURUNGE]: My objection is that attorney’s fees are not for this.
This is not an enforcement case.
[THE COURT]: Okay. Is that your only objection?
[MABVURUNGE]: That’s my objection.
[THE COURT]: Okay. That objection is overruled. [Mother’s
Counsel’s attorney’s fees affidavit] is admitted.
In his briefing, Mabvurunge appears to assert that attorney’s fees in family law
proceedings in Texas are limited to enforcement actions. However, as noted by
example above, the Texas Family Code provides several avenues for recovery of
attorney’s fees in suits affecting the parent-child relationship. See FAM.
§ 160.636(c).9 Nevertheless, Mabvurunge next asserts that Chimbewa’s attorney’s
fees affidavit was so redacted as to be not competent evidence. Mabvurunge has
waived this objection as he failed to raise it with the trial court. Knapp v. Wilson N.
Jones Mem’l Hosp., 281 S.W.3d 163, 170 (Tex. App.—Dallas 2009, no pet.) (“To
preserve an error for appeal, a party’s argument on appeal must comport with its
9
See also FAM. § 6.502(a)(4) (defining trial court’s authority to enter temporary orders for attorney’s
fees in dissolution suit), FAM. § 105.001 (defining trial court’s authority to enter temporary orders for
payment of reasonable attorney’s fees in suit affecting parent-child relationship), FAM. § 106.002 (“the
court may render judgment for reasonable attorney’s fees and expenses and order the judgment and
postjudgment interest to be paid directly to an attorney”), FAM. § 157.167 (defining trial court’s authority
to enter orders for payment of reasonable attorney’s fees and all court costs in an enforcement proceeding).
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argument in the trial court.”). Mabvurunge’s remaining briefing on this issue (i) does
not contain a clear argument for his contentions and (ii) refers to facts that are not in
the record. See TEX. R. APP. 34.5–34.6. In light of the record before us, we must
conclude the trial court did not abuse its discretion in ordering Mabvurunge to pay
$5,000 in attorney’s fees. Accordingly, we overrule Mabvurunge’s fourth issue.
VI. CONCLUSION
Having overruled each of Mabvurunge’s issues, we affirm the judgment of the
trial court.
/Bill Pedersen, III//
191205f.p05 BILL PEDERSEN, III
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF E. H., A On Appeal from the 254th Judicial
MINOR CHILD, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DF-18-18908.
No. 05-19-01205-CV Opinion delivered by Justice
Pedersen, III. Justices Osborne and
Nowell participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellee Tendai Chimbewa recover her costs of this
appeal from appellant Calvin Mabvurunge.
Judgment entered this 25th day of August, 2021.
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