in Re J.P.N. ( 2018 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-17-00633-CV
IN RE J.P.N.
Original Mandamus Proceeding 1
Opinion by: Rebeca C. Martinez, Justice
Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Irene Rios, Justice
Delivered and Filed: January 31, 2018
AFFIRMED
Relator J.P.N. appeals the trial court’s order finding him not indigent and denying his
request for a free reporter’s record in his mandamus proceeding before this court. We conclude
the trial court did not abuse its discretion in sustaining the contest to Relator’s affidavit of
indigence and finding Relator has the ability to pay for the reporter’s record. We affirm the trial
court’s order.
BACKGROUND
Relator was married to real party in interest, Y.N. The couple had two children when they
divorced in 2010. In the final divorce decree, Relator was designated sole managing conservator
and Y.N. was granted limited access to the children. Since the divorce, the parties have engaged
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This proceeding arises out of Cause No. 2009-CI-06183, styled In the Interest of J.T.N. and J.T.A.N, pending in the
407th Judicial District Court, Bexar County, Texas, the Honorable Cathleen M. Stryker presiding.
04-17-00633-CV
in ongoing litigation involving the divorce decree’s custody provisions. On August 31, 2017,
following a hearing on July 17-18, 2017, the trial court issued temporary orders requiring a child
custody evaluation and psychological evaluations on both parents, with Relator to pay the costs of
the evaluations. Relator challenged this order with a petition for writ of mandamus filed on August
31, 2017.
Relator did not file a reporter’s record of the July 17-18, 2017 hearing with his petition for
writ of mandamus. On October 2, 2017, Relator filed an affidavit of indigence. The court reporter
filed a contest to the affidavit of indigence. On October 26, 2017, the trial court conducted a
hearing on the contest at which Relator testified. At the conclusion of the hearing, the trial court
sustained the contest and signed an order stating Relator has the ability to pay the costs of court
incurred in the custody dispute, including the court reporter’s fee. Relator filed a motion appealing
the trial court’s order denying him indigent status. On appeal, Relator contends he is involuntarily
unemployed, has no income, receives food stamps and Medicaid for himself and the children, and
is assessed as 80% disabled by the U.S. Department of Veterans’ Affairs.
ANALYSIS
We review a trial court’s order sustaining a contest to an affidavit of indigence for an abuse
of discretion. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied).
When a contest is filed, the affiant bears the burden to prove his indigence by a preponderance of
the evidence. Higgins v. Randall Cnty. Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008);
Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.—San Antonio 2009, no pet.) (per curiam).
The test for determining indigence is whether the record as a whole shows by a preponderance of
the evidence that the affiant would be unable to pay all or part of the costs, or give security for the
costs, “if he really wanted to and made a good-faith effort to do so.” Higgins, 257 S.W.3d at 686;
Basaldua, 298 S.W.3d at 241.
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“A litigant who voluntarily remains unemployed and lives by the generosity of relatives is
not entitled to require the officers of the court to render services free while other citizens are
required to pay for similar services.” Wallgren v. Martin, 700 S.W.2d 28, 30 (Tex. App.—Dallas
1985, orig. proceeding). A trial court does not abuse its discretion in sustaining a contest to an
affidavit of inability to pay when the record shows a party has the ability to earn money through
future employment. Id. Further, the failure by a person claiming indigence to make a real attempt
to obtain or find assets that could be used to provide funds for paying for the appellate record
constitutes evidence that a good-faith effort has not been made, and a trial court does not abuse its
discretion in sustaining a contest based on such evidence. See White, 40 S.W.3d at 576.
Relator had the burden to prove by a preponderance of the evidence that he cannot pay the
cost for preparing the reporter’s record for his mandamus proceeding. In his affidavit of inability
to pay, Relator contends he has $132,793.93 in debt, owns property valued at $6,540.71, has total
monthly expenses of $2,752.39, and a total monthly income of $2,108.37.
At the hearing on the contest to Relator’s affidavit of indigence, Relator offered his own
testimony and that of his mother. Relator has a law degree, a bachelor’s degree in biochemistry,
an associate’s degree in cardiopulmonary technology, and a Master’s Level Certification in
Education. Relator testified he was discharged from the military and assessed at 70% disabled due
to anxiety and depression; his disability rating was increased to 80% in May 2017. Relator
attended law school after being discharged from the military, passed the bar exam, and has earned
income as an attorney. Relator was employed as a teacher at the beginning of 2017, but “stopped
being able to go through this case and function as a teacher.” According to Relator, his employer
terminated him because “there were so many trials.” Relator’s certification in cardiopulmonary
technology is expired, and he has not taken any action to reactivate that certification. According
to Relator, he has focused his job search in the legal profession.
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Relator offered in evidence a document in which he acknowledged he owed his mother
$120,573.13. This money was allegedly loaned to Relator by his mother to pay legal expenses
arising from his child custody dispute. Relator also introduced testimony from his mother.
Relator’s mother testified that she had loaned Relator money in the past and he repaid her. She
stated she loaned him $120,573.13 for legal fees and expected him to repay the loan. Relator’s
mother also testified she loaned Relator money to buy a house, but then he got a loan for the house
that resulted in her recouping most of her loan, except for “about $24,000 to $27,000.”
Based on our review of the record before us, we cannot say the trial court abused its
discretion in sustaining the contest to Relator’s affidavit of inability to pay. In making its ruling,
the trial court made several findings with respect to Relator’s ability to pay for the costs of the
reporter’s record. The court found Relator has the ability to continue to work as a licensed attorney
by virtue of his past employment and his current legal work in the instant case; was current on his
mortgage and property taxes; has an annual income over the Federal Poverty Guidelines threshold
for a household of three; spends the majority of his day working on this litigation; has received
money and charity from his mother in the past and continues to do so, and his mother will not
“impose legal collection practices to recoup” any of this money; and Relator is “voluntarily
unemployed and lives by the generosity of relatives.”
The failure by a person claiming indigence to make a real attempt to obtain or find assets
that could be used to provide funds for paying for the appellate record constitutes evidence that a
good-faith effort has not been made, and a trial court does not abuse its discretion in sustaining a
contest based on such evidence. See White, 40 S.W.3d at 576. The record here supports the trial
court’s fact findings and conclusion that Relator has failed to make a good-faith effort to obtain
funds to pay the fee for the court reporter’s record. Because the evidence does not show that
Relator “would be unable to pay the costs, or a part thereof, if he really wanted to and made a
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good-faith effort to do so,” the trial court did not abuse its discretion in sustaining the contest to
his claim of indigence. See Higgins, 257 S.W.3d at 686; see also Basaldua, 298 S.W.3d at 241.
Therefore, Relator is not entitled to proceed without paying for the court reporter’s record. See
TEX. R. CIV. P. 145.
Based on the foregoing, we hold the trial court did not abuse its discretion in sustaining the
contest to Relator’s claim of indigence and, we affirm the trial court’s order. Relator is therefore
ordered to: (1) pay, or make arrangements to pay, for the reporter’s record within fifteen days from
the date of this opinion; and (2) file written verification of such payments or payment arrangements
with this court no later than the 15th day after the date of this opinion. We caution Relator that
failure to pay for the reporter’s record will result in consideration of this mandamus proceeding
without a reporter’s record. See TEX. R. APP. P. 52.7; Walker v. Packer, 827 S.W.2d 833, 837
(Tex. 1992) (party seeking mandamus relief bears the burden of providing this court with a record
sufficient to establish its right to relief).
Rebeca C. Martinez, Justice
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