in the Interest of R.J., a Child ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-16-00445-CV
___________________________
IN THE INTEREST OF R.J., A CHILD
On Appeal from the 360th District Court
Tarrant County, Texas
Trial Court No. 360-599129-16
Before Gabriel, Kerr, and Pittman, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
The Office of the Attorney General of Texas initiated this case seeking an
order establishing conservatorship and directing Appellant J.J. (Father) to pay child
support for his minor son, R.J.1 Following an evidentiary hearing on the OAG’s
petition at which Father and L.V. (Mother) testified, the trial court ordered Father to
pay child support of $300 per month until R.J. turns 18 (or until another of the
order’s conditions is satisfied) and retroactive child support totaling $2,000, to be paid
out at $25 per month.
Appealing pro se, Father complains that the evidence is both legally and
factually insufficient to justify the child-support order and that the trial court abused
its discretion by not continuing the hearing date.2 He does not complain about the
trial court’s order awarding sole managing conservatorship to Mother. We affirm.
Background
R.J. was born in 2007. At the time of the October 24, 2016 hearing, Father had
been incarcerated since March 2015 for indecency with R.J. If he serves his entire
sentence, Father will not be released from prison until April 2023.
As always, we do not use real names when a case involves a child. See Tex.
1
Fam. Code Ann. § 109.002(d).
2
The OAG interprets Father’s second appellate issue as complaining of the
denial of appointed counsel, but as we will explain, neither the record nor Father’s
brief fairly raises such an issue; Father never asked the trial court to appoint a lawyer
to represent him.
2
Procedural History
When he answered the OAG’s petition in August 2016, Father sought a bench
warrant so that he could appear at the hearing, asserting that fairness required that he
be present “to testify in his own behalf and to assist counsel in the presentation of
evidence, cross-examination of witnesses and defense of this suit.”
In October 2016, two weeks before the scheduled hearing, Father again asked
for a bench warrant in an alternative continuance motion that did not refer to legal
counsel at all. Father stated that if a bench warrant was not issued, Father wanted a
“continuance of this action until such time as the respondent is released from the
penitentiary and is able to appear in court and defend this suit on his own volition. In
the alternative, Respondent has asked the court to order that appropriate participation
in the proceedings be accomplished by tele or video conference or any other
meaningful means available.”
Rather than having Father brought to court on October 24, the trial court
granted Father’s request to participate in the hearing by telephone. When asked on the
record if he was ready to proceed, Father said, “No, sir, I’d like to consult with
counsel. I’ve never – I’m not aware of the procedure of my rights.” The trial court
then asked if Father had a lawyer he intended to consult with, to which Father
responded that he did not, but “when I get out, if I can ask for a continuance, I would
like to hire an attorney.” Father did not ask for appointed counsel; the trial court
denied Father’s request for a continuance.
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Parties’ Testimony
Mother and Father were the only two witnesses at the hearing. Mother testified
that Father owns interests in several rental properties from which he derives income
that she estimated at $3,000 per month and also receives a monthly “military check”
that Mother understood was “over a thousand dollars.” Father denied owning any
“rental properties” but testified that he previously owned a house in Fort Worth that
was sold two or three years before the hearing, that he owes his brother rent on
another property (owned by his brother) that Mother had been living in, and that he
owns an interest in a different property from which he is not receiving rental
payments.
As for other sources of income, Father testified that he receives roughly $100
per month from his brother, and nothing else. There was also this exchange about
money from the military:
[FATHER]: I was receiving a disability from the VA, it’s about
$1,800.00.
THE COURT: Are you still receiving that check?
[FATHER]: No. The bank that was getting the money supposedly
[Mother] took all the money with my credit cards unauthorized. And
now they closed the account and I don’t know where the money is
going. As far as I know when you go to jail, they stop it.
No documents were discussed or introduced into evidence at the hearing, nor
was there additional testimony about Father’s VA disability payment.
4
At the conclusion of the hearing, the trial court stated: “I’m going to find
[Father] does have a source of income and order current child support of $300.00 a
month beginning November 1 of 2016. I’m going to find that he has the sources from
his VA disability.”
The trial court then also announced that it would order “$2,000.00 in
retroactive child support and order that paid at 25 a month.” The resulting written
Order in Suit Affecting the Parent–Child Relationship contains the trial court’s
“Findings Regarding Medical Support and Child Support Obligations” that Father’s
“gross monthly resources are $1,720.00,” with “[r]easonable cost, based upon 9% of
[Father’s] gross monthly resources is $155.00.” The trial court’s separate “Child
Support Findings” were as follows:
It is FOUND:
(1) the net resources of [Father] per month are $1,498.44;
(2) the percentage applied to [Father’s] net resources for child
support is 20%.
THE COURT MAKES A FINDING THAT [FATHER] HAS A
SOURCE OF INCOME AND SETS CURRENT CHILD SUPPORT
AT THIS TIME. THE COURT DECLINES TO SET CURRENT
MEDICAL SUPPORT AT THIS TIME.
Based on these findings, the trial court ordered Father to pay “current child
support of $300.00 each month” beginning November 1, 2016, and retroactive child
support for the period between June 2012 and October 2016 in the amount of $2,000,
payable at $25 per month beginning October 24, 2016.
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Father’s Issues on Appeal
In what we construe as two issues, Father complains that the evidence is
insufficient to support the child-support award and that he suffered a “due process
violation – denial of fair trial” because the trial court denied his request for a
continuance until after he was “released from the penitentiary,” at which time, he
asserted, he could hire a lawyer.
I. Child-support award
A. Standard of Review
A trial court has discretion to set child support within the parameters provided
by the family code, and we will not disturb a child-support order unless the
complaining party shows a clear abuse of discretion. Iliff v. Iliff, 339 S.W.3d 74, 78
(Tex. 2011); see Tex. Fam. Code Ann. §§ 154.121–.123. A trial court abuses its
discretion when it acts arbitrarily or unreasonably, without reference to guiding rules
or principles, or when it fails to analyze or apply the law correctly. Iliff, 339 S.W.3d at
78. Legal- and factual-sufficiency challenges are not independent grounds of error but
instead are relevant factors in assessing whether the trial court abused its
discretion. Newberry v. Bohn–Newberry, 146 S.W.3d 233, 235 (Tex. App.—Houston
[14th Dist.] 2004, no pet.).
When an appellant alleges that the trial court abused its discretion because the
evidence was insufficient, we apply a two-pronged test: first, we ask whether the trial
court had sufficient information on which to exercise its discretion; and second, we
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determine whether the trial court abused its discretion by causing the child-
support order to be manifestly unjust or unfair. Id. The trial court does not abuse its
discretion when its decision is based on conflicting evidence or where some evidence
of probative and substantive character exists to support the child-
support order. Id. We view the evidence in the light most favorable to the trial court’s
decision and indulge every reasonable presumption in favor of its judgment. Id.; see
also Finley v. Finley, No. 02-11-00045-CV, 2015 WL 294012, at *4 (Tex. App.—Fort
Worth Jan. 22, 2015, no pet.)(per curiam)(mem. op.).
B. Discussion
To determine a child-support obligation, the trial court must first calculate the
obligor’s (here, Father’s) net resources. Tex. Fam. Code Ann. § 154.062. “Net
resources” is broadly defined and includes not only “net rental income” but also
“United States Department of Veterans Affairs disability benefits other than non-
service-connected disability pension benefits, as defined by 38 U.S.C. Section
101(17).” Id. § 154.062(b)(4), (5).
The quality and amount of proof required to establish an obligor’s resources is
not onerous. Child-support awards have been upheld upon evidence that is little more
than one parent’s testimony about what he or she understands the other parent earns.
See, e.g., Newberry, 146 S.W.3d at 235–36 (holding that wife’s uncontroverted testimony
about husband’s yearly income constituted “some evidence” to support child-support
award).
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Similarly, when a husband testified that he had a business partner with whom
he split the monthly income from a limousine business, but the wife countered that he
had never before claimed to have a partner and that the business’s website contained
only the husband’s contact information, the trial court was within its discretion to
reject the husband’s argument for a 50% net-resources reduction. Pirzada v. Rice, No.
02-14-00145-CV, 2015 WL 1743461, at *4 (Tex. App.—Fort Worth Apr. 16, 2015, no
pet.) (mem. op.) (observing that “[a]lthough Pirzada testified that he had a business
partner who was entitled to 50% of the amount reflected in the bank statements, . . .
the trial court could have discounted that testimony based on Rice’s statements that
Pirzada never had a business partner”).
Here, the trial court heard not only Mother’s testimony that Father received
rental income of $3,000 (which, judging from its eventual child-support award, the
court apparently did not take into account) and a “military check” that she thought
was over $1,000 per month but also Father’s own acknowledgement of a monthly VA
disability payment of $1,800. Although Father claimed that this payment might have
stopped because he was incarcerated, his testimony on this score was vague at best:
Father asserted that the bank account into which those VA deposits were being made
had been closed and that he “d[id]n’t know where the money is going. As far as [he]
kn[ew] when you go to jail, they stop it.”
The trial court’s gross-resources finding of $1,720 per month is less than the
$1,800 that Father admitted to having received from the VA, and Father presented no
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evidence that, in fact, the VA terminates disability payments when a recipient is in
prison or that the VA had actually terminated his own such payments. Having
determined gross resources in an amount that was within its discretion based on the
evidence, the trial court then applied the family-code guidelines to arrive at a net-
resources amount of $1,498.44, from which it then calculated 20% as Father’s current
child-support obligation. See Tex. Fam. Code Ann. § 154.125(a), (b). The statutory
guidelines are presumptively reasonable, and a support order that conforms to the
guidelines is “presumed to be in the best interest of the child.” Id. § 154.122(a). As for
the trial court’s assessing $2,000 in retroactive child support, that too was
presumptively reasonable:
It is presumed that a court order limiting the amount of
retroactive child support to an amount that does not exceed the total
amount of support that would have been due for the four years
preceding the date the petition seeking support was filed is reasonable
and in the best interest of the child.
Id. § 154.131(c).
Here, because even one year of child support at $300 per month would have
been more than $2,000, the statutory presumption of reasonableness applies to the
retroactive-child-support order.
In sum, viewing the testimony in the light most favorable to the trial court’s
findings and adhering to the cited provisions of the family code, we hold that
sufficient evidence existed on which the trial court could exercise its discretion and
that the trial court’s child-support order was not manifestly unjust or unfair.
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We overrule Father’s first issue.
II. Due-process issue; denial of continuance
A. Standard of review
We review a trial court’s order denying a motion for continuance for an abuse
of discretion. Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150, 161 (Tex. 2004). And
if Father had asked for appointed counsel—a request we cannot find in the record—
the trial court’s implicit denial of that request would be similarly reviewed for an abuse
of discretion because an action to establish child support is not one that implicates a
constitutional right to counsel.
The Constitution of course guarantees a defendant the right to assistance of
counsel in a criminal prosecution. Gideon v. Wainwright, 372 U.S. 335, 339–45, 83 S. Ct.
792, 793–97 (1963); Lopez v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011).
Similarly, certain Texas statutes in the family-law context call for appointed counsel as
a matter of right, such as when the State seeks to terminate the rights of a parent who
falls within a specific statutory category. See, e.g., Tex. Fam. Code Ann. § 107.013(a); In
re M.S., 115 S.W.3d 534, 544 (Tex. 2003) (“In Texas, there is a statutory right to
counsel for indigent persons in parental-rights termination cases.”). Otherwise,
without some statute codifying a right to counsel, a litigant such as Father can only
ask for appointed counsel, with no guarantee that he will get one. See, e.g., Tex. Gov’t
Code Ann. § 24.016 (“A district judge may appoint counsel to attend to the cause of a
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party who makes an affidavit that he is too poor to employ counsel to attend to the
cause.”).
B. Discussion
Although, as we noted earlier, the OAG briefed Father’s second issue as one
involving a request for appointed counsel, the entirety of the record and the briefing
convince us that Father’s second appellate complaint is that the trial court should
have granted a continuance. Indeed, when the trial court asked Father toward the end
of the hearing if he wanted to add anything to his testimony, Father’s only response
relating to his issues in this appeal was that “[m]y testimony is that I wanted to have
this postponed.”
In his brief, Father couched this issue in terms of “due process,” but the record
does not show that he raised this argument to the trial court, as he was required to
do.3 With certain exceptions not applicable here, a party can waive even error of a
constitutional dimension by not raising it in the trial court and obtaining a ruling. See
3
Father’s only mention of due process appears in his October 2016 motion for
continuance, and it is in a different context: “Respondent alleges that he is entitled to
be present at any proceedings affecting parent-child relationship as a matter of due
process and equal protection of the law. See Stanley v. [Illinois] 405 U.S. 645 (1972). In
the Interest of G.M. 596 S.W.2d 846 (Tex. 1980) and cases cited [therein].” Because the
trial court granted Father’s request to participate in the hearing remotely, Father was
“present” at the proceedings; no due-process issues were implicated. Cf. In re R.C.R.,
230 S.W.3d 423, 426 (Tex. App.—Fort Worth 2007, no pet.) (stating that “if a court
determines that a pro se inmate in a civil action is not entitled to leave prison to
appear personally in court, the inmate should be allowed to proceed by affidavit,
deposition, telephone, or other means”).
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Tex. R. App. P. 33.1; see, e.g., In re K.A.F., 160 S.W.3d 923, 928 (Tex. 2005) (noting
that “rules governing error preservation must be followed in cases involving
termination of parental rights, as in other cases in which a complaint is based on
constitutional error”); Tex. Dep’t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857,
861 (Tex. 2001) (holding that failure to assert constitutional claim in trial court bars
appellate review of that claim). Father has waived any due-process concerns with the
trial court’s having denied his continuance motion.
In any event, the trial court did not abuse its discretion by denying Father’s
motion for continuance—particularly where the court allowed him to participate
telephonically, which was one of Father’s alternative proposals if he could not have a
continuance. (“In the alternative, Respondent has asked the court to order that
appropriate participation in the proceedings be accomplished by tele or video
conference or any other meaningful means available.”) Under the invited-error
doctrine, a party cannot successfully lodge an appellate challenge to a trial-court action
that the complaining party asked it to take. See Tittizer v. Union Gas Corp., 171 S.W.3d
857, 862 (Tex. 2005) (noting that “a party cannot complain on appeal that the trial
court took a specific action that the complaining party requested”).
Accordingly, we overrule Father’s second issue.
Conclusion
Having overruled Father’s two issues, we affirm the trial court’s judgment.
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: March 21, 2019
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