in the Interest of L.A.F., a Child ( 2022 )

Affirmed and Memorandum Opinion filed August 4, 2022.
In The
Fourteenth Court of Appeals
NO. 14-21-00046-CV
IN THE INTEREST OF L.A.F., A CHILD
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Cause No. 2015-52606
MEMORANDUM OPINION
Appellant Tom Freijo appeals a final judgment ordering him to make
retroactive child support payments to appellee Veronica Rivera for their child
L.A.F. In three issues that we treat as two, Freijo argues that: (1) the petition filed
in the trial court by appellee the Office of the Attorney General (OAG) was
deficient; and (2) the trial court erred by awarding retroactive child support. We
affirm.
I. BACKGROUND
L.A.F. is currently twenty years old, and Freijo does not dispute that he is
L.A.F.’s father.
On September 8, 2015, the OAG filed a Uniform Interstate Family Support
Act (UIFSA) petition seeking retroactive child support. Attached to the petition
was federal form OMB 0970-0085, filled out by Veronica Rivera, L.A.F.’s mother;
the form contained Rivera’s general testimony concerning the case, her monthly
expenses, and financial information for Freijo and Rivera. In October 2015, Freijo
was served with citation of the suit. In December 2015, Freijo filed an answer and
requested that the trial court deny the OAG’s petition. In August 2016, Freijo filed
a counter-petition to adjudicate parentage, asserting that it would be in L.A.F.’s
best interest to appoint Freijo as joint managing conservator with the exclusive
right to designate the primary residence of the child.
In November 2020, the trial court held a hearing on the OAG’s petition and
Freijo’s counter-petition. According to the OAG, the issue before the trial court
was whether the imposition of retroactive child support would create an undue
financial hardship for Freijo. Based on the OAG’s calculation sheet, it requested
that Rivera be awarded $98,441.69 in retroactive child support. The OAG
informed the trial court that for purposes of its calculations, the child support
would end as of May 2020 because that is when L.A.F. graduated from high
school.
Freijo testified that he is the biological father of L.A.F., but that he only
learned of his parentage in 2015 after he received the results from a genetic test.
Freijo acknowledged that Rivera and L.A.F. lived with him in 2008 and 2009 until
“one day [he] came home from work and she [and L.A.F.] disappeared.” Although
L.A.F. used Freijo’s last name when they lived together, Freijo claims that he did
not believe he was L.A.F.’s father at the time because with “[w]hat [Rivera] said
and how she acted and what she did over many years made no sense to me, so I
never believed anything she said.” Freijo further claimed that he distrusted
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Rivera’s claims that he was L.A.F.’s father because she was “manipulative” and
“everything that came out of her mouth was a lie.” Freijo testified that after Rivera
and L.A.F. left in 2009, the next time he heard from them, other than a few “nasty
emails,” was in 2015 when he was subpoenaed to appear in court for a paternity
test. Freijo was also questioned about diapers he sent to Rivera shortly after
L.A.F.’s birth:
[Question]: Mr. Freijo, isn’t it true that right after the child was born,
you sent diapers to Ms. Rivera?
[Freijo]: Yes.
[Question]: Why would you send her diapers if you didn’t think this
was your child?
[Freijo]: Because it might have been and that’s the kind of person
I am, a fool.
After learning that he was L.A.F.’s father, Freijo testified that he sought to
negotiate a paternity agreement in which he would receive parental rights in
exchange for his payment of child support to Rivera. According to Freijo, two
years prior to the hearing, he used his master’s degree in toxicology to work as a
chemist, but the company was sold, and he has not been able to find gainful
employment since then. Freijo further clarified that his only income is $1,063 a
month he earns as “dividend income.” Currently, Freijo lives with his 82-year-old
mother and takes care of her. Freijo testified that if he is ordered to pay the child
support arrearages as requested by the OAG, it would create a financial hardship
on him because his only income is dividend income of $1,063 per month.
When questioned about his current assets, Freijo admitted that he has three
bank accounts, a 401k account, and a Roth IRA account; however, he asserted that
he does not know how much money he has in any of those accounts because the
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value is always fluctuating. He also admitted to owning eight rental properties.
Freijo testified that in the three years preceding the hearing, he had sold two rental
properties: one sold for $180,000 and the other sold for $160,000.
At the close of the hearing, the trial court awarded Rivera retroactive child
support in the amount of $98,441.69. The trial court ordered that amount to be paid
within two years at $4,101.74 per month. On January 25, 2021, the trial court
issued an order incorporating its rendition of judgment as declared at the hearing.
Freijo filed a timely appeal.
II. DEFICIENT PLEADINGS
In his first issue, Freijo argues that the OAG’s pleadings were deficient
because they failed to provide Freijo’s “full biographic information,” and the
pleadings failed to provide L.A.F.’s social security number. See Tex. Fam. Code
Ann. § 159.311(a).
A. APPLICABLE LAW
“[A]ny claimed ‘defect, omission or fault in pleading’ must be in writing.
An oral motion objecting to pleadings does not comply with the reqirements [sic]
of the rules.” Gonzales v. Galveston Indep. Sch. Dist., No. A14-92-00742-CV,
1993 WL 64135, at *3 (Tex. App.—Houston [14th Dist.] Mar. 11, 1993, writ
denied) (quoting Tex. R. Civ. P. 90); Peek v. Equip. Serv. Co. of San Antonio, 779
S.W.2d 802, 805 (Tex. 1989) (concluding that in the absence of special exceptions,
“a plaintiff may proceed to trial, however defective its allegations”); Retzlaff v.
Tex. Dep't of Criminal Justice, 135 S.W.3d 731, 737 (Tex. App.—Houston [1st
Dist.] 2003, no pet.) (observing that objections to an allegedly defective pleading
“must be made in writing before the judgment is signed or the objection is deemed
waived”); see also Hartwell v. Lone Star, PCA, 528 S.W.3d 750, 765 (Tex. App.—
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Texarkana 2017, pet. dism’d) (concluding that every objection to defects in the
pleading is waived unless “it is specially pointed out by a special exception in
writing and brought to the attention of the trial court before the complained-of
judgment or order is signed”) (internal quotations omitted); UV Logistics, LLC v.
Patsfield, No. 01-20-00191-CV, 2022 WL 963276, at *11 (Tex. App.—Houston
[1st Dist.] Mar. 31, 2022, no pet.) (mem. op.) (concluding issue was waived on
appeal because the record did not contain a ruling on special exception).
B. APPLICATION
Freijo did not file any special exceptions to the OAG’s petition. Freijo orally
moved for judgment as a matter of law on the basis that the petition did not contain
Freijo’s social security number. This was insufficient; it was Freijo’s burden to file
a written special exception. See Tex. R. Civ. P. 90; Gonzales, 1993 WL 64135, at
*3. Moreover, Freijo failed to secure a ruling on his objection to the pleading. See
Patsfield, 2022 WL 963276, at *11. Thus, Freijo has not preserved for appellate
review his challenge to the adequacy of the pleadings. See Peek, 779 S.W.2d at
805; Hartwell, 528 S.W.3d at 765; Retzlaff, 135 S.W.3d at 737. We overrule
Freijo’s first issue.
III. RETROACTIVE CHILD SUPPORT
In his second issue, Freijo argues that the trial court erred in denying his
motion for judgment as a matter of law and in awarding retroactive child support.
A. STANDARD OF REVIEW & APPLICABLE LAW
We review a trial court’s decision to grant or deny a motion for judgment as
a matter of law under the legal sufficiency standard of review. See City of Keller v.
Wilson, 168 S.W.3d 802, 823 (Tex. 2005). A trial court properly denies a motion
for judgment as a matter of law if, looking at all the evidence in the light most
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favorable to the fact challenged or the finding found by the jury, a reasonable trier
of fact could have formed a firm belief or conviction that the fact or finding was
true. Id.We review a trial court’s award of retroactive child support for an abuse of
discretion. In re A.B., 368 S.W.3d 850, 854 (Tex. App.—Houston [14th Dist.]
2012, no pet.).
A trial court does not abuse its discretion when some evidence of a
substantive and probative character supports its order. When, as in the
present case, the trial court does not file findings of fact and
conclusions of law, we imply the trial court made all findings
necessary to support its judgment and will uphold those findings if
supported by sufficient evidence.
Id. (internal citations omitted).
Regarding the admissibility of evidence in UIFSA suits, Texas Family Code
§ 159.316(b) states:
(b) An affidavit, a document substantially complying with federally
mandated forms, or a document incorporated by reference in an
affidavit or document, that would not be excluded under the
hearsay rule if given in person, is admissible in evidence if
given under penalty of perjury by a party or witness residing
outside this state.
Tex. Fam. Code Ann. § 159.316(b); see Atty. Gen. v. Litten, 999 S.W.2d 74, 78
(Tex. App.—Houston [14th Dist.] 1999, no pet.) (observing that the purpose of the
statute is to “eliminate as many potential hearsay problems as possible in interstate
litigation because usually the out-of-state party and that party’s witnesses do not
appear in person at the hearing”).
Regarding the calculation of retroactive child support, Texas Family Code
§ 154.131 provides:
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(b) In ordering retroactive child support, the court shall consider
the net resources of the obligor during the relevant time period
and whether:
(1) the mother of the child had made any previous attempts
to notify the obligor of his paternity or probable
paternity;
(2) the obligor had knowledge of his paternity or probable
paternity;
(3) the order of retroactive child support will impose an
undue financial hardship on the obligor or the obligor’s
family; and
(4) the obligor has provided actual support or other
necessaries before the filing of the action.
Tex. Fam. Code Ann. § 154.131(b).
B. APPLICATION
Freijo complains on appeal that there was no witness testimony, tangible
evidence, or affidavits presented to support the award of retroactive child support.
Rivera did not testify in person at the trial. However, as referenced above, the
OAG’s petition contained admissible evidence in the form of Rivera’s testimony
on the federally promulgated general testimony form. See id.§ 159.316(b). In the
form, Rivera stated:
I opened the case five years ago. I am seeking retroactive support
from the State of Texas. I have provided Tom Freijo’s information
(work address, social security number) to expedite process. I had to
“exempt” myself for a couple of months from taxes in order to get the
extra money to make it through the month.
The form also detailed Rivera’s income and expenses.
In addition to the testimony contained in the form, the trial court’s award of
retroactive child support is supported by evidence of the factors listed in
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§ 154.131(b) of the Texas Family Code. See id. Concerning the first two factors—
whether the mother of the child had made any previous attempts to notify the
obligor of his paternity or probable paternity and whether the obligor had
knowledge of his paternity or probable paternity—Freijo acknowledged that when
Rivera and L.A.F. lived with him, he allowed L.A.F. to use his last name. Freijo
also admitted that he sent diapers to Rivera shortly after L.A.F.’s birth because he
realized that the child might be his. This evidence supports Freijo’s knowledge of
probable paternity. See id. § 154.131(b)(1), (2).
Regarding whether ordering Freijo to pay child support would cause an
undue financial burden, Freijo testified that he had a master’s degree in toxicology,
a 401k account, a Roth IRA account, and eight active investment properties, seven
of which were currently rented.1 See id. § 154.131(b)(3).2RR30-33. He further
testified that in the last several years, he sold one property for $180,000 and
another for $160,000. Based on this testimony, the court could have concluded that
an order of retroactive child support would not impose an undue financial burden
on Freijo.
The last factor concerns whether Freijo has provided actual support or other
necessaries before the filing of the action. See id. § 154.131(b). Other than the
diapers he sent to Rivera shortly after L.A.F.’s birth, and Freijo’s testimony that
Rivera and LAF lived with him from 2008 through 2009, there is nothing in the
record to suggest that Freijo provided any other support for L.A.F. prior to the
filing of this action in 2015. Freijo did testify briefly concerning plane tickets he
purchased so that L.A.F. could come visit him, but according to Freijo, that
occurred in either 2018 or 2019.
1
Freijo testified that the tenant of the eighth investment property stopped paying rent
“since the COVID started and they left two months ago so, basically, it’s been vacant since
January, so no rent has been paid.”
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Viewing all of the evidence in the light most favorable to the OAG and
Rivera, a reasonable trier of fact could have formed a firm belief or conviction that
the factors of Texas Family Code § 154.131(b) supported the award of retroactive
child support. See id. § 154.131(b); City of Keller, 168 S.W.3d at 823.
Accordingly, the trial court’s denial of the motion for judgment as a matter of law
was proper. See City of Keller, 168 S.W.3d at 823. Additionally, the trial court did
not abuse its discretion in awarding retroactive child support because the evidence
presented in the federal form and through Rivera’s own testimony supported the
award of retroactive child support. See In re A.B., 368 S.W.3d at 854. We overrule
Freijo’s second issue.
IV. CONCLUSION
We affirm the trial court’s judgment.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Wise, Poissant, and Wilson.
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