in the Matter of the Marriage of Robin Rivers and Malcolm Rivers ( 2016 )

IN THE
TENTH COURT OF APPEALS
No. 10-16-00031-CV
IN THE MATTER OF THE MARRIAGE OF
ROBIN RIVERS AND MALCOLM RIVERS,
From the 85th District Court
Brazos County, Texas
Trial Court No. 14-002093-CVD-85
MEMORANDUM OPINION
In five issues, appellant, Robin Prince Rivers, advancing pro se, challenges the trial
court’s final decree of divorce. Specifically, appellant complains about the trial court’s
(1) order for appellant, appellee Malcolm Rivers, and the couple’s two children to
participate in DNA testing; (2) denial of retroactive child support; (3) geographic
restriction on the primary residence of the couple’s children; (4) order pertaining to
medical and dental support for the children; and (5) denial of various post-judgment
motions. We affirm.1
I. GENETIC TESTING
In her first issue, appellant complains that the trial court erred in ordering genetic
testing in this matter. Specifically, appellant contends that section 160.607 of the Texas
Family Code barred appellee from requesting genetic testing to prove or disprove
paternity. See TEX. FAM. CODE ANN. § 160.607 (West 2014).2
Here, shortly after appellant filed her original petition for divorce, appellee filed a
motion for genetic testing to determine if he is the father of the children in this case. The
1 As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
facts necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4. Moreover, we note that appellee
has not filed a brief in this matter.
2 Section 160.607 of the Texas Family Code provides the following:
(a) Except as otherwise provided by Subsection (b), a proceeding brought by a presumed
father, the mother, or another individual 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.
(b) A proceeding seeking to adjudicate the parentage of a child having a presumed father
may be maintained at any time if the court determines that:
(1) the presumed father and the mother of the child did not live together or
engage in sexual intercourse with each other during the probable time of
conception; or
(2) the presumed father was precluded from commencing a proceeding to
adjudicate the parentage of the child before the expiration of time prescribed
by Subsection (a) because of the mistaken belief that he was the child’s
biological father based on misrepresentations that led him to that conclusion.
TEX. FAM. CODE ANN. § 160.607 (West 2014).
In the Matter of the Marriage of Rivers Page 2
trial court granted appellee’s motion and ordered that appellant, appellee, and the two
children submit to genetic testing. The order indicated that the Office of the Attorney
General would conduct the testing and that it would submit a report to the trial court
based on the results of the testing. Though the report is not made a part of the Clerk’s
Record, the final divorce decree states that appellant and appellee are the parents of the
two children. Furthermore, at no point during the testimony at the final hearing did
appellee contest paternity as to the two children. In fact, appellee acknowledged that he
has always wanted to be a part of the lives of his children.
Interestingly, appellant complains that section 160.607 time-barred appellee from
challenging paternity; however, the final divorce decree and appellee’s own testimony
indicates that appellee is the father of the children—a finding that was necessary for
appellant to obtain the desired child support. Therefore, even if section 160.607 time-
barred appellee’s paternity challenge, he still would have been the presumed father,
based on the evidence presented at trial. See TEX. FAM. CODE ANN. § 160.102(13) (West
2014) (“’Presumed father’ means a man who, by operation of law under Section 160.204,
is recognized as the father of a child until that status is rebutted or confirmed in a judicial
proceeding.”); see also id. § 160.204(a)(1) (West Supp. 2016) (“A man is presumed to be the
father of a child if . . . he is married to the mother of the child and the child is born during
the marriage . . . .”). In other words, either way, appellee is the father of the children.
Accordingly, we conclude that any error in the ordering of the genetic testing is moot
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given that there is no controversy regarding paternity.3 See NCAA v. Jones, 1 S.W.3d 83,
86 (Tex. 1999) (noting that appellate courts are prohibited from deciding moot
controversies); see also Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (concluding that a
justiciable controversy between the parties must exist at every stage of the legal
proceedings, including the appeal, or the case is moot). We overrule appellant’s first
issue.
II. RETROACTIVE CHILD SUPPORT
In her second issue, appellant argues that the trial court abused its discretion by
failing to order retroactive child support.
The award of child support is in the best interest of the child and is not intended
to be punitive in nature. Garza v. Blanton, 55 S.W.3d 708, 711 (Tex. App.—Corpus Christi
2001, no pet.). The decision to award retroactive child support is within the broad
discretion of the trial court. See TEX. FAM. CODE ANN. § 154.131 (West 2014); In re J.C.K.,
143 S.W.3d 131 (Tex. App.—Waco 2004, no pet.) (citing In re Valadez, 980 S.W.2d 910, 913
(Tex. App.—Corpus Christi 1998, pet. denied); In re S.E.W., 960 S.W.2d 954, 956 (Tex.
App.—Texarkana 1998, no pet.)); see also Nieto v. Nieto, No. 04-11-00807-CV, 2013 Tex.
App. LEXIS 5331, at **40-41 (Tex. App.—San Antonio May 1, 2013, pet. denied) (mem.
op.) (citing Nordstrom v. Nordstrom, 965 S.W.2d 575, 582 (Tex. App.—Houston [1st Dist.]
3Additionally, we note that appellant has failed to articulate any harm resulting from the ordering
of the genetic testing.
In the Matter of the Marriage of Rivers Page 4
1997, pet. denied)). A trial court abuses its discretion when it acts arbitrarily,
unreasonably, or without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); see Newberry v. Bohn-
Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston [14th Dist.] 2004, no pet.).
Here, appellant asserted that appellee is a truck driver and has been intentionally
underemployed to avoid paying child support. In support of her claim for retroactive
child support, appellant introduced printouts from indeed.com, which indicates that the
average yearly salary for “CDL b” drivers in Houston, Texas, is approximately $53,000-
$55,000.
Appellee responded by submitting a Wage and Income Transcript Form 1099-
MISC from the Internal Revenue Service that showed he earned $14,133 from Milestone
Delivery during the 2013 tax year. Appellee earned an additional $25,045 from On Time
Freight Services, LLC during the same time period. For the 2014 tax year, appellee earned
$13,345 from Lee-Exco International Expedito, $1,012 from C&Q Enterprises, Inc., and
$5,206 from Kirt Gaskin. Additionally, appellee submitted copies of checks issued by
Julio Donis d/b/a Donis Trucking for numerous weeks in 2015, many of which were in
the amount of $650 for a week’s worth of work.
At the final hearing, appellant testified that appellee had only bought the children
school clothes and paid $200 in child support since 2013. Appellee noted that he should
not have to pay back child support because he has “always taken care of [his] children.”
In the Matter of the Marriage of Rivers Page 5
Specifically, appellee stated: “But I have always took [sic] care of my kids—when I got
paid on the Friday, I would make sure money be token [sic] to her auntie’s, uncle’s or
anybody [sic] house. Every Friday or every other week.” Appellee further testified that
he has bank statements that prove he actually paid child support in the past.
At the conclusion of the testimony, the trial court ordered appellee to “pay child
support in the amount of $521.93 based on the exhibits that have been admitted with a
net—or a gross monthly income of $2,570 per month. I am going to note that the gross
monthly income for Mrs. Rivers is $916.66 a month.” And when appellant requested
retroactive child support, the trial judge stated that he was “not going to order any past
child support.”
[B]ecause the trial court is in a better position to determine the candor,
demeanor, and credibility of the witnesses, we will not substitute our
judgment for that of the trial court. See Garner v. Garner, 200 S.W.3d 303,
308 (Tex. App.—Dallas 2006, no pet.), overruled on other grounds by Iliff v. Iliff,
339 S.W.3d 74 (Tex. 2011); see also In re A.L.F., 279 S.W.3d 424, 427 (Tex.
App.—Houston [14th Dist.] 2009, no pet.) (noting that the trial court is best
able to observe and assess the witnesses’ demeanor and credibility and to
sense “forces, powers, and influences” that may not be apparent merely
from reading the record on appeal). Instead, we defer to the trial court’s
resolution of underlying facts and to the credibility determinations that
may have affected its decision. In re A.L.F., 279 S.W.3d at 427. Thus, an
abuse of discretion will generally not occur when a trial court bases its
decision on conflicting evidence. In re De La Pena, 999 S.W.2d 521, 526 (Tex.
App.—El Paso 1999, no pet.).
In re Hernandez, No. 10-09-00136-CV, 2011 Tex. App. LEXIS 6441, at **7-8 (Tex. App.—
Waco Aug. 10, 2011, no pet.) (mem. op.).
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As shown above, the record contains conflicting testimony about whether appellee
provided adequate child support in the past. See In re A.L.F., 279 S.W.3d at 427; In re De
La Pena, 999 S.W.2d at 526. Moreover, in her pro se live pleading, appellant simply
requested “past child support” without any qualifiers. Though the record shows that the
children were born in 1997 and 2002, there is no evidence of appellee’s income for the
years of 1997 through 2013. Therefore, based on the lack of evidence in the record of
appellee’s income from 1997 to 2013, appellant’s vague request for retroactive child
support, and the conflicts in the evidence regarding the amount of child support appellee
provided in the past, we cannot say that the trial court abused its discretion in denying
appellant’s request for retroactive child support. See TEX. FAM. CODE ANN. § 154.131; In
re J.C.K., 143 S.W.3d at 131; In re Valadez, 980 S.W.2d at 913; In re S.E.W., 960 S.W.2d at 956;
see also Nieto, 2013 Tex. App. LEXIS 5331, at **40-41. We overrule appellant’s second issue.
III. GEOGRAPHIC RESTRICTION
In her third issue, appellant complains about a geographic restriction on the
primary residence of the children. The entirety of appellant’s complaints in this issue is
as follows:
The trial court abused its discretion [by] imposing [a] geographical
restriction requiring [the children] to remain in Brazos or contingent [sic]
counties. The father testify [sic] he live [sic] . . . which is in Harris County.
The mother resided in Brazos [C]ounty starting in 2013 due to a previous
job. Appellant and children are from Houston, Texas. However, on the
final divorce decree it stated that the Appellee does not live in Harris
County. There was simply no evidence to support this order to impose [a]
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geographical restriction[;] the trial court should have not exercised its
discretion and it should have [sic], it acted arbitrarily and unreasonably.
First, we note that the final divorce decree names appellant and appellee as joint
managing conservators of the children. It also contains the following language:
IT IS FURTHER ORDERED that Robin Rivers shall have the exclusive right
to designate the children’s primary residence within Brazos County and
contiguous counties.
IT IS FURTHER ORDERED that this geographical restriction on the
residence of the children shall be lifted if, at the time Robin Rivers wishes
to remove the children from Brazos County and contiguous counties for the
purpose of changing the primary residence of the children, Malcolm Rivers
does not reside in Brazos County and contiguous counties or Harris
County.
The aforementioned language, which is the basis of appellant’s complaint, simply
states that if appellant desires to move the children from Brazos County or counties
contiguous to Brazos County and appellee no longer lives in Harris County, Brazos
County, or the counties contiguous to Brazos County, the geographic restriction would
be lifted. And though appellant correctly notes that appellant testified at the final hearing
that he lives in Harris County, nothing in the final divorce decree contradicts appellee’s
testimony. In fact, the final divorce decree states that appellee’s current residence is
“12603 Northboroughs, Houston, TX 77067.”4 And other than this alleged discrepancy,
4 We take judicial notice that Houston is the county seat of Harris County. See Harris County,
Texas, https://en.wikipedia.org/wiki/Harris_County,_Texas (last visited Sept. 27, 2016); see also TEX. R. EVID.
201(b)-(c); MCI Sales & Serv., Inc. v. Hinton, 272 S.W.3d 17, 26 n.5 (Tex. App.—Waco 2008) (noting that
judicial notice may be taken for the first time on appeal), aff’d, 329 S.W.3d 475 (Tex. 2010).
In the Matter of the Marriage of Rivers Page 8
appellant does not adequately explain how the trial court abused its discretion in
imposing the geographic restriction on the primary residence of the children. See TEX. R.
APP. P. 38.1(i); see also In re T.J.S., 71 S.W.3d 452, 458 (Tex. App.—Waco 2002, pet. denied)
(noting that we review child-custody orders under an abuse-of-discretion standard); In
re J.R.P., 55 S.W.3d 147, 151 (Tex. App.—Corpus Christi 2001, pet. denied) (same). We
therefore overrule appellant’s third issue.
IV. MEDICAL AND DENTAL SUPPORT FOR THE CHILDREN
In her fourth issue, appellant argues that the trial court abused its discretion in
failing to require appellee to provide medical and dental support for the children. We
disagree.
As noted earlier, appellee was ordered to pay $521.93 per month in child support.
With regard to health-care coverage, appellant testified that the children are covered
under Medicaid. Moreover, the final divorce decree states: “Robin Rivers is ORDERED
to continue coverage under a governmental medical assistance program or health plan
for each child who is the subject of this suit.” The decree further orders appellant and
appellee to equally share reasonable and necessary health-care expenses for the children
that are not reimbursed by health insurance or other health-care coverage. In other
words, the children’s medical and dental expenses are covered through Medicaid, a
government-assistance program. And in the event that a reasonable and necessary
procedure is not covered by Medicaid, appellee is responsible for 50% of the total
In the Matter of the Marriage of Rivers Page 9
uncovered health-care expenses. Furthermore, appellant does not direct us to any
evidence demonstrating that the trial court abused its discretion with regard to medical
and dental support for the children. We therefore cannot say that the trial court clearly
abused its discretion with regard to medical and dental support for the children. See TEX.
FAM. CODE ANN. §§ 154.181-.183 (West 2014 & Supp. 2016); see also Brendel v. Brendel, No.
04-08-00883-CV, 2009 Tex. App. LEXIS 8747, at *23 (Tex. App.—San Antonio Nov. 11,
2009, no pet.) (mem. op.) (“A trial court’s medical support order will not be disturbed on
appeal unless the complaining party shows that the order constituted a clear abuse of
discretion. . . . In determining if the trial court’s medical support order constitutes a clear
abuse of discretion, the reviewing court must indulge every legal presumption in favor
of the trial court’s judgment.” (citing Holley v. Holley, 864 S.W.2d 703, 706-07 (Tex. App.—
Houston [1st Dist.] 1993, writ denied))). We overrule appellant’s fourth issue.
V. APPELLANT’S POST-JUDGMENT MOTIONS
In her fifth issue, appellant contends that the trial court abused its discretion in
denying her motion to compel, motion for new trial, and request for findings of fact and
conclusions of law.
The record reflects that appellant filed a handwritten motion to compel, which was
entirely comprised of the following: “Motion to Compel. Requesting motion to compel
wife discovery request. Defendant work for independent contractor or self employed.”
Nevertheless, the record does not reflect that the trial court ruled on appellant’s motion
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to compel. Without a ruling from the trial court on the motion to compel, we cannot say
that appellant has preserved her complaint as to the motion to compel. See TEX. R. APP.
P. 33.1(a)(1); see also Kadhum v. Homecomings Fin. Network, Inc., No. 01-05-00705-CV, 2006
Tex. App. LEXIS 3401, at *5 (Tex. App.—Houston [1st Dist.] 2006, pet. denied) (mem. op.)
(“Because the record does not show that a motion to compel was presented to the trial
court or ruled on, any possible error is not preserved for review.” (citing TEX. R. APP. P.
33.1(a); Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991))).
Next, appellant complains about her motion for new trial and request for findings
of fact and conclusions of law—both of which were contained in the same filing. The
record does not indicate that the trial court ruled on these requests. In a case tried without
a jury, any party may request, within twenty days after the judgment is signed, that the
trial court prepare findings of fact and conclusions of law. TEX. R. CIV. P. 296. Here, the
final divorce decree was signed on December 28, 2015.
The record does not show that appellant filed a notice of past-due findings of fact
and conclusions of law, though required to do so by Texas Rule of Civil Procedure 297
when the trial court fails to file such findings and conclusions. See id. at R 297. Because
appellant did not timely file a notice of past-due findings of fact and conclusions of law,
we conclude that this appellate complaint is waived. See id. at R. 296, 297; see also Guillory
v. Boykins, 442 S.W.3d 682, 694 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing Las
Vegas Pecan & Cattle Co. v. Zavala County, 682 S.W.2d 254, 255-56 (Tex. 1984)).
In the Matter of the Marriage of Rivers Page 11
And finally, with regard to appellant’s motion for new trial, we note that the
motion is premised entirely on appellant’s contention that appellee should pay back child
support. In her second issue, we concluded that the trial court did not abuse its discretion
in declining to award appellant retroactive child support. Based on our analysis in
appellant’s second issue, we cannot say that the denial of appellant’s motion for new trial
was an abuse of discretion. See Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex.
2010) (noting that we review a ruling on a motion for new trial under an abuse-of-
discretion standard). Therefore, based on the foregoing, we overrule appellant’s fifth
issue.
VI. CONCLUSION
Having overruled all of appellant’s issues, we affirm the judgment of the trial
court.
AL SCOGGINS
Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed November 2, 2016
[CV06]
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