in the Interest of E.D.F. and C.G.F., Children ( 2014 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-12-00470-CV
IN THE INTEREST OF E.D.F. AND C.G.F., CHILDREN
On Appeal from the 121st District Court
Terry County, Texas
Trial Court No. 18,996, Honorable Paula Lanehart, Presiding
October 9, 2014
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.
Appellant Stephen G. Finley, appearing pro se, appeals portions of an order in a
family law matter. Through two issues, he challenges the trial court’s finding that he
failed to prosecute a 2004 motion to modify child support and its order setting his
current child support obligation at the rate of the federal minimum wage. The appellees
are Beverly Diane May and the Office of the Attorney General (OAG). May did not file a
brief. Finding no abuse of discretion by the trial court, we will affirm the order appealed.
Background
Finley and May are the parents of two daughters, E.D.F. and C.G.F., born in
1993 and 1995 respectively. They were divorced in 1997, by decree of a Lubbock
County district court. The decree named May sole managing conservator of E.D.F. and
C.G.F. and Finley possessory conservator. Finley was ordered to pay $488 per month
as child support.
May moved E.D.F. and C.G.F. to Travis County, Texas. Finley remarried in 2000
and he and his wife have one child born in November 2001. In December 2002, a
Travis County district court modified the decree, increasing Finley’s child support
obligation to $585 per month.
Finley holds a master’s degree with work toward a Ph.D. He was employed as a
technical writer for the University of Texas at Austin and later Texas Tech University.
His employment with Texas Tech ended in November 2003. According to May’s trial
testimony, from June 2004 through January 2010, and from March 2010 through April
2011 Finley made no child support payment in the amount ordered.
In early 2004, Finley filed a motion to modify support in Travis County. Although
this pleading is not included in the record, Finley apparently argued a material change
of circumstances because of loss of his employment. It is undisputed that the motion
was never heard by a court of Travis County.
In April 2011, the OAG brought a motion in Travis County to enforce and modify
the decree’s support order. Among other things, the motion asked the court to hold
Finley in contempt for nonpayment of support. In June 2011, Finley began paying $85
2
per month, from his wife’s income, toward his child support obligation. May moved the
children to Terry County and the case was transferred during 2011.
In an April 2012 motion, Finley asked the district court of Terry County to modify
the support order by reducing his child support obligation to $85 per month or less. He
based the requested change on lost employment and his inability to locate a new job.
He requested the court to consider the motion “an amendment” of his 2004 motion.
Elsewhere in the motion, Finley moved for an order holding May in contempt for, among
other things, denying him visitation.
At a July 2012 hearing, the trial court considered the motions filed by the OAG
and Finley. Appointed counsel represented Finley on the OAG’s contempt motion while
on all other matters Finley appeared pro se. Finley presented a substantial body of
tangible and testimonial evidence supporting his claim of continuing unemployment. He
testified that his inability to find employment, ranging from minimum wage to
professional positions, stemmed from a wrongful termination lawsuit he unsuccessfully
brought against Texas Tech. He told the court he was over- or under-qualified for the
positions he sought and lacked resources to relocate or open a business.
In a later order, the trial court ruled on the matters heard at the July hearing. It
held Finley in contempt for failing to make the child support payment due December 1,
2004. He was ordered jailed for ten days with the sentence suspended in favor of
community supervision for fourteen months. Finley’s child support arrearages were
confirmed through November 2011 in an award of $59,558.28 in favor of the OAG.
Finley’s motion to hold May in contempt was denied. Applying the minimum wage
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presumption of Family Code section 154.068, the order fixed Finley’s current monthly
child support obligation, retroactive to December 1, 2011, at $199.35. May was ordered
to provide health insurance for C.G.F. E.D.F. had reached the age of majority.
According to a finding stated in the order and later in findings of fact and conclusions of
law, Finley failed to prosecute his 2004 motion to modify.
Analysis
By his first issue, Finley argues the trial court abused its discretion by finding he
failed to prosecute the 2004 motion to modify child support.1 Within this global
complaint Finley contends he incorporated by reference the 2004 motion in subsequent
pleadings and intended its hearing at the July 2012 setting, it was error to dismiss the
motion after the hearing since neither the court nor a party previously sought dismissal,
and he was not afforded notice of the trial court’s intent to dismiss.
A trial court is empowered to dismiss a case for want of prosecution either under
Texas Rule of Civil Procedure 165a or its inherent power to control its docket. Villarreal
v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999). Under either
standard, a party must be provided notice and opportunity to be heard before a court
may dismiss a case. Id. We review a trial court’s order of dismissal for want of
prosecution by the abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74,
75 (Tex. 1997).
1
Neither the final order nor the findings of fact and conclusions of law state the
trial court dismissed Finley’s 2004 motion to modify for want of prosecution. However,
since Finley bases his argument on a belief that his motion was dismissed for want of
prosecution, we begin our analysis of his first issue accordingly.
4
As noted, Finley referenced the 2004 motion in his 2012 motion. The record
includes no pretrial effort by the OAG, May, or the trial court to dismiss the 2004 motion
for want of prosecution. The record of the July 2012 trial itself contains no mention of
possible dismissal of the 2004 motion for want of prosecution. Nor does the record
include notice to Finley of possible dismissal of the 2004 motion for want of prosecution.
Indeed, the parties vigorously tried the issue of Finley’s requested reduction in child
support because of his claimed unemployment from 2004 to the time of trial.
The record does not contain a motion for new trial or motion to reinstate in which
Finley pointed out to the trial court his now-asserted claim of wrongful dismissal for want
of prosecution. Indeed, we find no indication Finley took any measure to bring his
contention to the trial court’s attention. Rather, he initiated the present appeal.
Because Finley did not first raise his present complaint in the trial court and because the
error he asserts is not fundamental,2 he failed to preserve his complaint for our review.
See TEX. R. APP. P. 33.1(a); Luna v. UPS, Inc., No. 01-02-00144-CV, 2003 Tex. App.
LEXIS 465, at *4-5 (Tex. App.—Houston [1st Dist.] Jan. 9, 2003, pet. denied) (finding
non-fundamental error concerning notice of intent to dismiss suit not raised in motion to
reinstate was not preserved for appellate review); Thompson v. Ereckson, 814 S.W.2d
805, 808 (Tex. App.—Waco 1991, no writ) (stating that unless error is fundamental,
constitutional challenge not properly raised in trial court by motion to reinstate is waived
on appeal). Cf. In re J.F.C., 96 S.W.3d 256, 291 (Tex. 2002) (noting that a harm
analysis is not conducted for jurisdictional fundamental-error review).
2
Fundamental error in a civil case exists only “in those rare instances in which
the record shows the court lacked jurisdiction or that the public interest is directly and
adversely affected as that interest is declared in the statutes or the Constitution of
Texas.” Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam).
5
Moreover, as for disposition of Finley’s motion on its merits, we do not find error
by the trial court. Family Code section 156.401(b) provides, “A support order may be
modified with regard to the amount of support ordered only as to obligations accruing
after the earlier of (1) the date of service of citation; or (2) an appearance in the suit to
modify.” TEX. FAM. CODE ANN. § 156.401(b) (West 2014). Thus, while the trial court is
afforded discretion to order retroactive child support, retroactive modification is not
required. In re H.J.W., 302 S.W.3d 511, 514 (Tex. App.—Dallas 2009, no pet.). See In
re Naylor, 160 S.W.3d 292, 294 (Tex. App.—Texarkana 2005) (citing In re J.G.Z., 963
S.W.2d 144, 149 (Tex. App.—Texarkana 1998)); Lazarte v. Lazarte, No. 13-11-00362-
CV, 2012 Tex. App. LEXIS 6152, at *7-8 n.5 (Tex. App.—Corpus Christi July 26, 2012,
no pet.) (mem. op.) (same); cf. In re H.J.W., 302 S.W.3d at 514 (recognizing “the family
code generally prohibits the retroactive modification of child support”). But the record
here contains no evidence of the date of service of Finley’s 2004 motion and the date of
May’s appearance. Finley appended to his appellate brief copies of documents
reflecting those events, but none of the appended documents are a part of the appellate
record. We may not give effect to evidence attached to a brief but not made part of the
record developed at trial. Scott v. Simpson, 2005 Tex. App. LEXIS 10359, at *1-2 (Tex.
App.—Amarillo Dec. 12, 2005, no pet.) (per curiam, mem. op.) (citing Castano v. San
Felipe Agricultural, Mfg. & Irr. Co., 147 S.W.3d 444, 452-53 (Tex. App.—San Antonio
2004, no pet.) and Custom-Crete, Inc. v. K-Bar Services, Inc., 82 S.W.3d 655, 659 (Tex.
App.—San Antonio 2002, no pet.)). Because the record does not show the trial court
had evidence of the specific dates for service of the 2004 motion and May’s responsive
appearance, it lacked any evidentiary basis to grant Finley relief.
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For both these reasons, Finley’s first issue is overruled.
In his second issue, Finley argues the trial court erred by setting child support
according to the minimum wage presumption of Family Code section 154.068. At the
time of hearing, that section provided, “In the absence of evidence of the wage and
salary income of a party, the court shall presume that the party has wages or salary
equal to the federal minimum wage for a 40-hour week.”3
In its findings of fact and conclusions of law the trial court found:
The court orders (guideline) current child support of $199.35 per month for
the one unemancipated child and beginning the 1st day of December, (sic)
2011 and on the same day of each month thereafter until emancipation or
further order of court. The Court finds that the federal minimum wage
presumption of Section 154.068, Texas Family Code, applied and
$1,256.67 gross monthly resources based on minimum wage
presumption. The final net monthly resources found by the Court is
$1,116.12 and the court applies the alternative method of computing
support for children in more than one household as set out in Section
154.129, Texas Family Code.
Generally, a complaining party must show that a trial court’s support order
amounts to a clear abuse of discretion before it will be disturbed on appeal. Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses its discretion when it
acts without reference to any guiding rules and principles. McGuire v. McGuire, 4
S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.] 1999, no pet.).
“A parent’s duty to support his or her minor child exists regardless of whether that
parent has been ordered to pay child support. It also exists regardless of whether that
parent has custody of the child.” R.W. v. Tex. Dep’t of Protective & Regulatory Servs.,
3
See Act of April 6, 1995, 74th Leg., ch. 20, § 1, 1995 TEX. GEN. LAWS 113, 161
(amended 2013) (current version at TEX. FAM. CODE ANN. § 154.068).
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944 S.W.2d 437, 440 n.4 (Tex. App.—Houston [14th Dist.] 1997, no writ) (citations
omitted); Villasenor v. Villasenor, 911 S.W.2d 411, 419 (Tex. App.—San Antonio 1995,
no writ) (noting a parent’s support obligation of a minor child). The duty to support a
child is not limited to a parent’s ability to pay from current earnings, but also extends to
his or her financial ability to pay from any and all sources that might be available. In re
Striegler, 915 S.W.2d 629, 638 (Tex. App.—Amarillo 1996, writ denied); Roosth v.
Roosth, 889 S.W.2d 445, 455 (Tex. App.—Houston [14th Dist.] 1994, writ denied);
Musick v. Musick, 590 S.W.2d 582, 586 (Tex. Civ. App.—Tyler 1979, no writ).
The Family Code provides that the court “shall calculate net resources for the
purpose of determining child support liability.” TEX. FAM. CODE ANN. § 154.062(a) (West
2014). The Family Code specifies the method of calculating net resources. TEX. FAM.
CODE ANN. § 154.062(a) (West 2014). ‘“Net resources’ include all wage and salary
income, self-employment income, and all other income actually being received.”
Moreno v. Perez, 363 S.W.3d 725, 735 (Tex. App.—Houston [1st Dist.] 2011, no pet.)
(citing TEX. FAM. CODE ANN. § 154.062(b)). Section 154.063 provides that “[t]he court
shall require a party to . . . furnish information sufficient to accurately identify that party’s
net resources and ability to pay child support.” Id. (citing TEX. FAMILY CODE ANN. §
154.063). Without evidence of net resources “the court shall presume that the party has
income equal to the federal minimum wage for a 40-hour week to which the support
guidelines may be applied.” TEX. FAM. CODE ANN. § 154.068 (West 2014).4
4
This is the current version of the statute effective September 1, 2013. See Act
of May 20, 2013, 83rd Leg., R.S., ch. 1046, § 3, 2013 TEX. GEN. LAWS 2504, 2505
(amending TEX. FAM. CODE ANN. § 154.068). Whether under the former or current
version of section 154.068, our disposition of this issue would be the same.
8
As noted, Finley holds a master’s degree with work toward a Ph.D. He was
employed for several years by Texas Tech University as a technical writer. There is
evidence of extensive job searches for a variety of positions including customer service,
teaching, communications, and broadcasting. Finley did not present evidence of
unemployability. Rather, he asserted he had been unable to find new employment for
the reasons noted earlier.
When a case is tried to the bench, the court as fact finder judges the weight and
credibility of the witnesses and evidence, resolves any conflicts in the evidence, and
decides which testimony and witnesses to believe. In re Estate of Rice, No. 09-12-
00295-CV, 2013 Tex. App. LEXIS 7215, at *19-20 (Tex. App.—Beaumont June 13,
2013, no pet.) (mem. op.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.
2005); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); HTS
Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—
Houston [1st Dist.] 2005, no pet.)). The trial court here could have found Finley’s
evidence insufficient to rebut the minimum wage presumption of section 154.068. Thus,
it was statutorily bound to set child support according to the federal minimum wage for a
40-hour week. In re N.H.P., No. 05-04-00009-CV, 2004 Tex. App. LEXIS 10976, at *2-5
(Tex. App.—Dallas Dec. 7, 2004, no pet.) (mem. op.) (citing In re Martin, 881 S.W.2d
531, 536-537 (Tex. App.—Texarkana 1994, writ denied) (when record contained no
evidence of obligor parent’s wage or salary income and no evidence obligor parent was
unemployable, only currently unemployed, trial court correctly applied the minimum
wage presumption of section 154.068); In re Hidalgo, 938 S.W.2d 492, 495-96 (Tex.
App.—Texarkana 1996, no writ) (holding in the face of evidence of obligor’s wage at last
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job, a one year period of unemployment at the time of trial, and that she was not
unemployable, trial court correctly applied the presumption of section 154.068).
In comparison, an obligor’s status as an inmate does not alone mean the person
lacks financial resources. In In re M.M., 980 S.W.2d 699, 700 (Tex. App.—San Antonio
1998, no pet.), the court refused to indulge a presumption of no income in favor of an
incarcerated obligor merely because of his incarceration. Noted the court, the obligor
did not present evidence in the trial court that he lacked financial resources. Id. It
further observed even if the obligor was currently unable to make support payments, the
assessment of income based on section 154.068 made it possible for the obligee to
collect arrearages should the obligor’s financial situation improve. Id. at 701.
On this record, we cannot conclude the trial court abused its discretion in
applying the minimum wage presumption of section 154.068.5 Finley’s second issue is
overruled.
5
Within Finley’s argument under this issue appear threads of an equitable plea
that “justice and common sense dictate” setting child support “at or near zero” until he
begins generating income. Central to the contention is the idea that Finley should not
be strapped with debt because he conducted a “reasonable” and “exceptional” search
for employment. To the extent Finley intends this as a sub-issue complaining the trial
court erred by failing to depart from the child support guidelines, see TEX. FAM. CODE
ANN. §§ 154.122; 154.123; 154.130 (West 2014), we do not find the matter adequately
raised in the trial court to be preserved for appellate review. TEX. R. APP. P. 33.1(a). It
also was not sufficiently assigned on appeal as an issue for our consideration. TEX. R.
APP. P. 38.1(f),(i). Moreover, on this record, and despite Finley’s contrary assertion, the
trial court could reasonably have believed a departure from the guidelines was not in the
best interest of the child.
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Conclusion
Having overruled Finley’s two issues, we affirm the order of the trial court.
James T. Campbell
Justice
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