Samuel Roshell Madison v. Laura Marie Madison ( 2006 )

Opinion filed February 2, 2006

Opinion filed February 2, 2006

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-04-00275-CV

                                                    __________

                            SAMUEL ROSHELL MADISON, Appellant

                                                             V.

                                 LAURA MARIE MADISON, Appellee

                                         On Appeal from the 318th District Court

                                                        Midland County, Texas

                                                Trial Court Cause No. FM-40,057

                                              M E M O R A N D U M  O P I N I O N

Samuel Roshell Madison appeals the trial court=s order increasing his monthly child support payment and requiring him to pay retroactive child support for one child whose paternity was established by genetic testing.  We find no abuse of discretion and affirm.

Laura Marie Madison filed a motion to modify appellant=s child support obligation and to establish the parent-child relationship between appellant and her youngest child. Appellant denied parentage, but genetic testing confirmed that he was the child=s father.  The trial court modified appellant=s child support obligation and ordered him to pay retroactive child support for the youngest child.  Appellant then apparently filed a motion for new trial. The trial court held a hearing and entered an amended order which lowered his monthly support obligation but still awarded retroactive child support.

Neither the motion for new trial nor the amended order was made a part of the clerk=s record; however, both parties have attached a copy of the amended order to their briefs.  The general rule is that  the attachment of documents as exhibits or appendices to briefs is not a formal inclusion in the record on appeal.  Nguyen v. Intertex, Inc., 93 S.W.3d 288, 293 (Tex. App.CHouston [14th Dist.] 2002, no pet.).  Because appellant is proceeding pro se and because we have received the same order from both parties, we will not abate this proceeding for the preparation of a supplemental clerk=s record but will proceed as if the amended order was properly before us.

Appellant=s first three issues concern the trial court=s calculation of his monthly child support obligation.  His fourth issue concerns the retroactive child support calculation.  Appellant contends that the trial court incorrectly extrapolated his annual income and, therefore, that its subsequent calculations were in error.  A trial court=s child support order will not be disturbed on appeal absent a clear abuse of discretion.  Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990).  The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

The trial court=s amended order indicates it held two evidentiary hearings.  Appellant has not provided this court with a reporter=s record from either hearing.  He did not request findings of fact and conclusions of law. The court reporter contacted appellant by correspondence and advised him of the process for obtaining a reporter=s record.  The clerk=s office for this court notified appellant that no reporter=s record had been filed.  Appellant informed the clerk=s office by phone and this court by correspondence that no reporter=s record was required in this case.  The clerk=s office then confirmed, in writing, that appellant was not filing a reporter=s record.  Pursuant to Tex. R. App. P. 37.3(c), we will proceed to consider this appeal without a reporter=s record.

Appellant=s failure to provide a complete record prevents us from granting him any relief.  When no findings of fact and conclusions of law are filed, we must presume the trial court made all the necessary findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989).  When no reporter=s record is filed, we must assume the missing evidence supports the trial court=s ruling.  Bryant v. United Shortline Inc. Assurance Servs., 972 S.W.2d 26, 31 (Tex. 1998). These presumptions compel a finding that the trial court=s calculations are correct.

Appellant is apparently attempting to appeal the trial court=s amended order by having this court redetermine the underlying issues de novo.  Appellant=s brief includes pay records, a letter, and a copy of an e-mail from his employer.  The letter and e-mail are dated after the trial court=s second hearing and, thus, were most likely not presented to the trial court but were prepared as a result of that hearing.  We may not consider any documents that are not part of the appellate record.  Deutsch v. Hoover, Bax & Slovacek, L.L.P., 97 S.W.3d 179, 198 (Tex. App.CHouston [14th Dist.] 2002, no pet.)  Attaching new evidence to a brief does not make it a part of the appellate record. 

Moreover, our role is not to review the underlying issues de novo but to determine from the record before us whether the trial court abused its discretion.  After applying the required presumptions when no transcript or findings of fact and conclusions of law are filed, we cannot say the trial court abused its discretion.  Appellant=s issues are overruled.

The judgment of the trial court is affirmed.

PER CURIAM

February 2, 2006

Panel consists of: Wright, C.J., and

McCall, J., and, Strange, J.