Rolando Villarreal v. Diana Hernandez Villarreal ( 2004 )

Affirmed and Memorandum Opinion filed June 22, 2004

Affirmed and Memorandum Opinion filed June 22, 2004.

In The

Fourteenth Court of Appeals

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NO. 14-03-00577-CV

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ROLANDO VILLARREAL, Appellant

V.

DIANA HERNANDEZ VILLARREAL, Appellee

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On Appeal from the 300th District Court

Brazoria County, Texas

Trial Court Cause No. 84K0017

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M E M O R A N D U M   O P I N I O N

Appellant Rolando Villarreal challenges the trial court=s entry of an agreed order reducing his unpaid child support to judgment.  In two issues, appellant contends the trial court erred because it did not (1) inform him of his alleged right to counsel; and (2) grant his motion for new trial.  We affirm.

Discussion

I.  Procedural History

Appellant and Diana Hernandez divorced in July 1984, and appellant was ordered to pay child support of $70 per week for the support of their two minor children until the youngest child turned eighteen. Appellant=s youngest child turned eighteen on April 29, 2001, thereby terminating appellant=s obligation to pay child support; however, appellant had not paid the child support as ordered in the decree of divorce.   In November 2002, the Office of the Attorney General (AOAG@) filed a AMotion to Reduce Unpaid Child Support to Judgment.@^[1] In its motion, the OAG did not seek incarceration or request a finding of contempt.

On February 18, 2003, appellant, Hernandez (both appearing pro se), and an assistant attorney general presented an AAgreed Order Reducing Unpaid Child Support To Judgment@ (the AOrder@) to the trial court.  The parties waived a record of the proceedings with the trial court=s approval.  The trial court approved the agreement and signed the Order.  The Order required appellant to pay a total of $104,433.65 in monthly installments of $600, beginning on March 1, 2003 and continuing thereafter until the arrearage was paid in full.

After the entry of judgment, appellant retained counsel and filed a motion for new trial.  The motion for new trial was set for a hearing, but was passed and reset to a date after the motion for new trial had been overruled by operation of law.^[2]  Tex. R. Civ. P. 329b(c).  A hearing was never conducted on the motion for new trial and appellant did not file a motion to reconsider.

II.  Right To Counsel

In his first issue, appellant contends the trial court erred because it did not advise him of a right to counsel prior to entry of the Order. Appellant posits this court should hold, as a matter of first impression, that a party must be advised of a right to counsel in a proceeding on a motion to reduce child support to judgment .^[3]   However, because appellant waived his right to have a court reporter record the hearing, there is no transcript of the parties= appearance.  See Tex. Fam. Code Ann. ' 157.161 (Vernon 2002). Therefore, we have no record reflecting the trial court=s admonitions, if any.  Considering the absence of a reporter=s record is due to the parties= waiver, with the court=s approval, we hold that appellant=s complaint presents nothing for our review.  See, e.g., Brossette v. State, 99 S.W.3d 277, 284B85 (Tex. App.CTexarkana 2003, no pet. h.) (stating appellant=s failure to object to the court reporter=s failure to record bench conference waives error on appeal); Smith v. Grace, 919 S.W.2d 673, 678B79 (Tex. App.CDallas 1996, writ denied).^[4]

Even if we assume the trial court did not apprise appellant of a right to counsel, we find no reversible error, because a defendant in a suit filed to reduce unpaid child support to judgment is not entitled to be so advised absent a threat of incarceration.  AThe [United States] Constitution=s fourteenth amendment guarantee of due process incorporates the sixth amendment assurance that the accused in a criminal prosecution has the right to counsel.@ Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983).  As a result, in a child support case, if the State holds the threat of incarceration over the defendant, he must be afforded the right to counsel.  Id. at 1415; see Ex parte Acker, 949 S.W.2d 314, 316 (Tex. 1997) (holding court=s failure to admonish former wife of right to counsel rendered void the order of contempt order for nonpayment of child support ).  This constitutional right is codified in Texas Family Code section 157.163(b).

In this case, the OAG=s motion to reduce arrearage to judgment did not seek contempt relief; therefore, incarceration was not a possible result and appellant=s right to counsel under either the Sixth Amendment or section 157.163 of the Family Code was not implicated.  Moreover, because the motion was filed over a year after his youngest child turned eighteen, appellant was not even subject to contempt for a future failure to comply with the agreed judgment.  See Tex. Fam. Code Ann. ' 157.005(a); cf. In re M.E.G., 48 S.W.3d 204, 207, 210 (Tex. App.CCorpus Christi 2000, no pet.) (holding motion to enforce child support order before eighteenth birthday of youngest child invoked trial court=s contempt jurisdiction under '157.005(a), even though trial court did not sign contempt order until after youngest child=s eighteenth birthday).  As a result, the trial court was not required to advise appellant of a right to counsel. We overrule appellant=s first issue.

III.  Denial of Motion for New Trial

In appellant=s second issue, he contends the trial court erred by failing to grant his motion for new trial.  As a preliminary matter, the OAG argues appellant waived his second point of error by failing to present his motion for new trial at a hearing and introduce evidence. We agree.  As noted, appellant had set the motion for hearing, but it was reset to a date after the motion was overruled by operation of law.  Although we acknowledge that the overruling of a motion by operation of law preserves some appellate complaints, it does not preserve error regarding a motion based on newly discovered evidence.  See Keever v. Finlan, 988 S.W.2d 300, 315 (Tex. App.CDallas 1999, pet. dism=d); Lassiter v. Shavor, 824 S.W.2d 667, 668 (Tex. App.CDallas 1992, no writ).

Mere allegations by a movant do not suffice to obtain a new trial on the basis of newly discovered evidence.  Bell v. Showa Denko K.K., 899 S.W.2d 749, 757 (Tex. App.CAmarillo 1995, writ denied).  Instead, admissible evidence must be introduced at a hearing on the motion for new trial establishing: (1) that the evidence has come to the movant=s knowledge since the trial; (2) that the evidence did not come sooner for want of due diligence; (3) the newly discovered evidence is not cumulative; and (4) it is so material that it would probably produce a different result if a new trial were granted.  Id.; see Dankowski v. Dankowski, 922 S.W.2d 298, 305 (Tex. App.CFort Worth 1996, writ denied).  In the absence of a hearing on the motion, nothing is preserved for appellate review. See Bell, 899 S.W.2d at 757.  Here, no such hearing on the motion was ever held.

However, even assuming that the issue was preserved, we do not find that the trial court abused its discretion in failing to grant appellant=s motion.  See Keever, 988 S.W.2d at 315 (noting it is within the discretion of the trial court to grant a motion for new trial based on newly discovered evidence); see Jackson v. Van Winkle, 660 S.W.2d 807, 809B10 (Tex. 1983), overruled on other grounds, Moritz v. Preiss, 121 S.W.3d 715, 720B21 (Tex. 2003).  When considering a motion for new trial, the trial court considers the weight and the importance of the new evidence and its bearing in connection with the evidence received at trial.  Keever, 988 S.W.2d at 315.  The inquiry is not whether, based on evidence in the record, it apparently may have been proper to grant the motion in the particular case, but whether the refusal to grant it involves the Aviolation of a clear legal right or a manifest abuse of judicial discretion.@ Id.  We indulge every reasonable presumption in favor of the trial court=s refusal to grant a new trial.  Id.

Appellant argues in his motion for new trial that the OAG pressured him into signing the Order by stating that Aworse things would happen@ to him if appellant did not sign the Order.  In support of this assertion, appellant attached an affidavit stating: AThe [OAG] made many statements to me which were either untrue or were misleading enough to make me believe that I would lose many rights and privileges and would face very harsh consequences if I did not sign the agreed judgment.@

Appellant=s allegations that he was coerced into signing the Order required the taking of evidence.  See Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979) (concluding that an allegation of nonconsent was a question of fact requiring presentation of evidence); Nichols v. Nichols, 907 S.W.2d 6, 12 (Tex. App.CTyler 1995, writ denied) (noting whether agreement was entered into voluntarily or as a result of duress is fact question).  Because appellant=s affidavit contained nothing more than conclusory allegations regarding this issue, the trial court did not abuse its discretion in failing to grant appellant=s motion for new trial.  See Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 82 (Tex. 1992) (stating conclusory allegations in affidavit regarding motion for new trial are insufficient).

Appellant also argues that he had newly-discovered evidence of uncredited payments and incorrect interest calculations and was therefore entitled to a new trial.  However, in the affidavit attached to appellant=s motion he merely states:  AThe total judgment does not reflect thousands of dollars of payment that I made. I can testify to the amounts and approximate dates that I paid the uncredited child support and am in the attempt [sic] of locating cancelled checks and/or bank records which are five or more years old reflecting the payments that I made.@  Nothing more specific is stated in his affidavit; nor is anything more specific attached to it.  Because appellant never specifically set out the offsets and credits to which he was allegedly entitled, he failed to produce any evidence of unapplied payments to support his motion for new trial.^[5]  Further, nothing in appellant=s affidavit suggests he did not know that allegedly uncredited payments existed prior to the February hearing.  Clearly, he could have testified to them at that time.^[6]  Also, his affidavit fails to demonstrate that he was prevented from procuring any cancelled checks or bank records prior to the hearing. 

Lastly, Appellant argues that the motion for new trial should have been granted because he had new evidence that the judgment included pre-judgment interest on past-due amounts calculated at an incorrect rate.  The record reflects that evidence supporting this contention was not presented to the trial court and, therefore, it is waived.  See Tex. R. App. P. 33.1(a).  In sum, we hold that the trial court properly denied the motion for new trial.  See McGuire v. Kelley, 41 S.W.3d 679, 684 (Tex. App.CTexarkana 2001, no pet.). Accordingly, we overrule appellant=s second issue. 

The judgment of the trial court is affirmed.

/s/        Eva M. Guzman

Justice

Judgment rendered and Memorandum Opinion filed June 22, 2004.

Panel consists of Chief Justice Hedges, and Justices Frost and Guzman.

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^[1]  Title IV-D of the Social Security Act requires states to provide services relating to the enforcement of child support obligations for children who receive government assistance payments and for other children whose guardians request the services.  See 42 U.S.C. ' 654(4) (1988). In Texas, the OAG is designated to provide the Title IV-D services.  See Tex. Fam. Code Ann. ' 231.001 (Vernon 2002).  The Attorney General is entitled to collect and distribute child support payments and enforce child support orders.  Id. ' 231.101(a)(5)B(6).  When the OAG provides Title IV-D services, it becomes entitled to an assignment of support rights.  Id. ' 231.104 (Vernon Supp. 2004).  Likewise, any arrearage amount belongs to the Attorney General by virtue of the assignment. See In re K.E.T., 974 S.W.2d 760, 762B63 (Tex. App.CSan Antonio 1998, no pet.).

^[2]  The docket sheet notations indicate this second scheduled hearing was Apassed.@  

^[3]  Appellant contends for the first time on appeal that the OAG misled him into believing that incarceration was a possible consequence and, therefore, the Texas Family Code and the Sixth Amendment to the United States Constitution require that he be advised of a right to counsel by the trial court.  However, appellant failed to raise this allegation in the trial court and therefore waived the issue for our review.  See Tex. R. App. P. 33.1(a); see also Tex. Dep=t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001) (noting that a constitutional right may be waived if not asserted in the trial court). Furthermore, even assuming the general allegations of coercion in appellant=s motion for new trial had served to alert the trial court that the OAG threatened incarceration, appellant failed to present evidence of this alleged threat and thus, waived the issue, as we discuss below.

^[4]  Appellant has further failed to preserve this issue for review because nothing in the record indicates appellant brought to the trial court=s attention its alleged failure to advise him of a right to counsel.  See Tex. R. App. P. 33.1(a). 

^[5]  Cf. In re C.B.M., 14 S.W.3d 855, 862 (Tex. App.CBeaumont 2000, no pet.) (noting that trial court is not required to hear evidence at motion for new trial hearing if offer of proof fails to establish evidence is newly discovered).   

^[6]  Appellant claims he was unaware that he could present evidence at the hearing.  However, ignorance of the law is not an excuse.  See Goss v. Bobby D. Assoc., 94 S.W.3d 65, 69 (Tex. App.CTyler 2002, no pet.). Even though appellant was pro se at the time, a person proceeding pro se is held to the same standard as licensed attorneys and must comply with the applicable laws and rules of procedure.  See, e.g., Mansfield State Bank v. Cohn, 573 S.W.2d 181, 185 (Tex. 1978); Holt v. F.F. Enters., 990 S.W.2d 756, 759 (Tex. App.CAmarillo 1998, pet. denied).