in the Interest of J. D. F., a Child ( 2014 )

NUMBER 13-13-00337-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF J.D.F., A CHILD
On appeal from the 24th District Court
of Refugio County, Texas.
MEMORANDUM OPINION
Before Justices Garza, Benavides and Perkes
Memorandum Opinion by Justice Garza
Appellant David Flores, pro se, challenges the trial court’s judgment modifying his
child support obligations to appellee, Rosa Linda Breeden.1 Flores, who is currently
incarcerated, contends by four issues that the trial court erred. We affirm.
I. BACKGROUND
Flores and Breeden were divorced on January 24, 2001. The final decree of
1 The Office of the Attorney General of Texas (“OAG”) is also an appellee. Both Breeden and OAG
have filed appellee’s briefs in this matter.
divorce appointed Flores and Breeden as joint managing conservators of their child,
J.D.F., who was born on June 21, 1996. The decree also ordered Flores to pay child
support to Breeden in the amount of $645 per month, and that the obligation would
generally continue until J.D.F. turns eighteen years of age, marries, or dies.
In 2009, Flores was convicted of two counts of aggravated sexual assault of a
child, see TEX. PENAL CODE ANN. § 22.021 (West, Westlaw through 2013 3d C.S.), and
he was sentenced to fifteen years’ imprisonment. He filed a petition for modification of
child support on August 23, 2012, arguing that there had been a material and substantial
change in his circumstances due to his incarceration. See TEX. FAM. CODE ANN.
§ 156.401(a)(1)(A) (West, Westlaw through 2013 3d C.S.) (providing that a child support
order may be modified if, among other things, “the circumstances of . . . a person affected
by the order have materially and substantially changed” since the order was rendered).
In his petition, Flores requested abatement of the child support obligations as well as a
reduction in his monthly support obligation. He further requested that the reduction apply
retroactively to September 29, 2009, the date when he alleges he was first incarcerated.
On November 26, 2012, Flores filed a “Motion for Bench Warrant or In Lieu of [sic]
Tele-Conference for Final Hearing” in which he requested that he be allowed to attend
the final hearing on his petition either in person or by telephone. Flores also filed a motion
for default judgment which was set for hearing on February 25, 2013. Prior to the hearing,
Breeden and the Office of the Attorney General of Texas (“OAG”) filed answers to the
petition. Breeden also filed a counterpetition seeking sole managing conservatorship of
J.D.F.
After the February 25 hearing, the presiding associate judge, see id. ch. 201 (West,
2
Westlaw through 2013 3d C.S.), rendered a “Pre-Trial Order” denying Flores’s motions
for bench warrant and for telephonic appearance. The order stated that Flores “failed to
meet his burden to show the necessity of his personal appearance in this case so as to
justify a bench warrant in this case and of the necessity of a telephonic or video
conference.” The order further stated that Flores “may present his testimony and other
evidence by deposition taken under the Texas Rules of Civil Procedure”; that he “may
present his testimony and documentary evidence by way of Affidavit, duly sworn to by
[Flores] (or sworn to under Inmate’s Unsworn Declaration)”; and that he “may subpoena
witnesses with knowledge of relevant facts to appear on Movant’s behalf at time of trial.”
The order reset the case for hearing on April 9, 2013.
On March 26, 2013, Flores filed a motion for continuance arguing that he had not
been given forty-five days’ notice as required by the rules of civil procedure. See TEX. R.
CIV. P. 245. He argued that “the new issues raised in [Breeden]’s Counterpetition . . . are
of a serious matter, that require additional time for preparation.” The record does not
contain an explicit ruling on the motion for continuance; however, the April 9 hearing went
forward as scheduled. During the hearing, Breeden abandoned her claim for sole
managing conservatorship, and the trial court heard evidence as to J.D.F.’s medical
expenses and Flores’s child support arrearages. The trial court rendered judgment
ordering that Flores pay $27,311.94 in child support arrearages 2 and $20,833.88 in
medical support arrearages.3 The judgment also reduced Flores’s current child support
2 The judgment ordered Flores to pay this amount by making one lump sum payment of $500 and
monthly payments of $175 “until the arrearage is paid in full, or on the termination of current support” for
J.D.F. The judgment further provided that, if Flores “has not paid the judgment in full by the date his current
child support obligation ends,” he must make monthly payments of $361 until the arrearage is paid in full.
3 The judgment ordered Flores to pay this amount in monthly payments of $50 until the arrearage
is paid in full.
3
obligation to $186 per month plus $57 per month in cash medical support. 4 See id.
§ 154.182(b-1) (West, Westlaw through 2013 3d C.S.). The trial court rendered findings
of fact and conclusions of law supporting the judgment.
Subsequently, Flores filed a motion for new trial arguing: (1) the judgment was
void because he was a defaulting plaintiff and, therefore, the merits of his cause could
not be reached; (2) he was given no notice of dismissal; (3) Breeden’s pleadings were
inadequate; and (4) his default was excused under applicable law. The motion was
denied and this appeal followed.
II. DISCUSSION
A. Motion for New Trial
By his first issue, Flores argues that the trial court erred by denying his motion for
new trial because he “was not given 45 days notice of the trial setting on the counterclaim
filed against him by Breeden, in violation [of Texas Rule of Civil Procedure] 245.” Rule
245 provides in relevant part:
The court may set contested cases on written request of any party, or on
the court’s own motion, with reasonable notice of not less than forty-five
days to the parties of a first setting for trial, or by agreement of the parties;
provided, however, that when a case previously has been set for trial, the
Court may reset said contested case to a later date on any reasonable
notice to the parties or by agreement of the parties. Non-contested cases
may be tried or disposed of at any time whether set or not, and may be set
at any time for any other time.
TEX. R. CIV. P. 245. Denial of a motion for new trial is reviewed on appeal for abuse of
discretion. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010).
The trial court noted that Flores’s obligation to pay current support will cease on June 21, 2014,
4
when J.D.F. turns eighteen years of age.
4
We do not find this issue meritorious. First, Flores’s motion for new trial did not
argue that any trial setting failed to comply with Rule 245; therefore, his issue is not
preserved for our review. See TEX. R. APP. P. 33.1. Second, the sole basis for Flores’s
motion for continuance—and the sole basis for his claim of harm on appeal—was the
purported need to prepare to defend against Breeden’s counterclaims, but Breeden
abandoned her counterclaims at trial. Accordingly, any error with respect to these claims
under Rule 245 would be harmless. See TEX. R. APP. P. 44.1(a) (“No judgment may be
reversed on appeal on the ground that the trial court made an error of law unless the court
of appeals concludes that the error complained of: (1) probably caused the rendition of
an improper judgment; or (2) probably prevented the appellant from properly presenting
the case to the court of appeals.”).5 Flores’s first issue is overruled.
B. Personal Appearance
Flores contends by his second issue that the trial court committed “fundamental
error” by rendering judgment against him when he was “not allowed to appear personally
and through attorney for trial.” We construe this issue as challenging the trial court’s
denial of Flores’s “Motion for Bench Warrant or In Lieu of [sic] Tele-Conference.” By his
fourth issue, Flores argues that the trial court violated his due process rights by denying
that motion.6
5 Flores appears to argue in his motion for continuance that he also received insufficient notice of
the February 25, 2013 hearing. However, he does not explicitly make this argument on appeal. In any
event, the record reflects that notice of the February 25 hearing was sent to the parties on January 11,
2013, precisely forty-five days prior to the hearing. Moreover, at least one court of appeals has held that
the notice requirement of Rule 245 may be waived if a party takes no action after receiving inadequate
notice. See In re Marriage of Parker, 20 S.W.3d 812, 818 (Tex. App.—Texarkana 2000, no pet.) (“A party
could, in theory, waive a complaint by failing to take action when the party receives some, but less than
forty-five days’, notice.”). Here, Flores did not complain of the February 25, 2013 hearing date until after
the hearing was concluded, and so he arguably waived any complaint as to that hearing.
6 Flores also argues by his fourth issue that the trial court violated his due process rights by “failing
5
It is well-established that litigants cannot be denied access to the courts simply
because they are inmates. In re Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). However, an
inmate does not have an absolute right to appear in person in every court proceeding;
instead, the inmate’s right of access to the courts must be weighed against the protection
of our correctional system’s integrity. Id. Following the Seventh Circuit’s decision in
Stone v. Morris, 546 F.2d 730, 735–36 (7th Cir. 1976), Texas courts of appeals have
recognized a variety of factors that trial courts should consider when deciding whether to
grant an inmate’s request for a bench warrant, including: (1) the cost and inconvenience
of transporting the prisoner to the courtroom; (2) the security risk the prisoner presents to
the court and public; (3) whether the prisoner’s claims are substantial; (4) whether the
matter’s resolution can reasonably be delayed until the prisoner’s release; (5) whether
the prisoner can and will offer admissible, noncumulative testimony that cannot be
effectively presented by deposition, telephone, or some other means; (6) whether the
prisoner’s presence is important in judging his demeanor and credibility; (7) whether the
trial is to the court or a jury; and (8) the prisoner’s probability of success on the merits. In
re Z.L.T., 124 S.W.3d at 165–66.
In Z.L.T., the Texas Supreme Court found that a trial court does not have an
independent duty to assess the factors elucidated in Stone; instead, in accordance with
generally applicable rules of procedure, litigants bear the burden “to identify with sufficient
specificity the grounds for a ruling they seek,” and “a litigant’s status as an inmate does
not alter that burden.” Id. at 166 (citing TEX. R. CIV. P. 21; TEX. R. APP. P. 33.1(a)(1)(A)).
The inmate appellant in Z.L.T. listed the Stone factors in his motion, and he mentioned
to consider and rule on” his motion for bench warrant or telephonic appearance. However, as noted, the
trial court explicitly denied that motion in its pre-trial order of February 25, 2013.
6
that he was located in a correctional institution more than 200 miles away from the trial
court, but the Court nevertheless held that the inmate “failed to provide any factual
information showing why his interest in appearing outweighed the impact on the
correctional system.” Id. The appellant therefore failed to meet his burden to establish
his right to relief. Id. Flores’s motion provides even less guidance than the one at issue
in Z.L.T. It merely states that Flores “has no means to earn or handle any money” and
that the correctional facility he resides in “has means for such tele-conference requested.”
The only legal argument made in the motion is that “[a] litigant[ ]cannot be denied access
to the courts simply because he is an inmate.” It does not mention or address any of the
factors set forth in Stone. As in Z.L.T., Flores’s motion fails to establish that his right of
access to the courts outweighs the impact on our correctional system’s integrity. See id.
at 165. Accordingly, the trial court did not abuse its discretion in denying the motion.
Flores also argues by his second issue that “Texas law does not authorize
ad[j]udicating the merits of a Plaintiff’s claim when he fails to appear for trial, but rather
the trial court may only dismiss the claim for want of prosecution.” See Smock v. Finchel,
207 S.W.2d 891, 892 (Tex. 1948); State v. Herrera, 25 S.W.3d 326, 327 (Tex. App.—
Austin 2000, no pet.). However, this rule applies only “when a plaintiff fails to appear and
prosecute his case . . . .” Smock, 207 S.W.2d at 892. Here, Flores was not adjudged to
be in default; rather, he was given the opportunity to participate in the hearing via
deposition and affidavit testimony, and the record reflects that Flores took advantage of
this opportunity by filing at least twelve affidavits and unsworn declarations supporting his
petition. We cannot conclude that the trial court was without authorization to render
judgment on the merits of Flores’s petition.
7
Flores’s second and fourth issues are overruled.
C. Abatement of Child Support Obligations
By his third issue, Flores contends that the trial court erred by denying Flores’s
request to abate his child support obligations during his period of incarceration. In
particular, he challenges the trial court’s conclusion of law that Flores “is voluntarily
unemployed or underemployed by means of his criminal conduct which resulted in his
incarceration.” The trial court further concluded that “it would be inequitable to allow
[Flores] to avoid paying child support, simply by committing a criminal offense that results
in his incarceration.”
Upon finding a material and substantial change in circumstances, see TEX. FAM.
CODE ANN. § 156.401(a)(1)(A), a trial court is given broad discretion in whether to modify
support and the amount of support required. In re C.H.C., 392 S.W.3d 347, 349 (Tex.
App.—Dallas 2013, no pet.). Absent a clear abuse of discretion, the trial court’s order will
not be disturbed on appeal. Id. A trial court abuses its discretion when it rules without
reference to any guiding rules or principles. Jelinek v. Casas, 328 S.W.3d 526, 539 (Tex.
2010). When then there is some evidence to support the trial court’s decision, no abuse
of discretion exists. In re Lee, 411 S.W.3d 445, 484 n.17 (Tex. 2013) (citing Gen. Tire,
Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998)).
Here, Flores presented affidavit testimony establishing that he has no income and
owns no property, but that he receives gifts and contributions from his family members.7
7The record before this Court does not contain a transcript of the April 9, 2013 hearing. The hearing
was recorded electronically; however, Texas courts of appeals have differed on whether an electronic
recording may be considered in an appeal that arises, as the instant appeal did, from a county not
authorized by the Texas Supreme Court to make a record in civil proceedings by electronic recording.
Compare In re E.D.M., No. 14-09-00727-CV, 2010 WL 3418211, at *2 (Tex. App.—Houston [14th Dist.]
Aug. 31, 2010, no pet.) (mem. op.) (concluding that an audio recording could not be considered because
Galveston County, the county from which the appeal arose, was not authorized by the Texas Supreme
8
Such gifts are considered net resources for purposes of determining child support liability.
See TEX. FAM. CODE ANN. § 154.062(a)(5) (West, Westlaw through 2013 3d C.S.).
However, the affidavits did not establish the amount of the gifts. Therefore, as the trial
court stated in its conclusions of law, the new amount of current support was based on
the minimum wage presumption contained in section 154.068 of the family code. See id.
§ 154.068 (West, Westlaw through 2013 3d C.S.) (“In the absence of evidence of a party’s
resources, as defined by Section 154.062(b), 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.”). And courts have held that “incarceration alone does not
rebut the minimum wage presumption.” In re A.P., 46 S.W.3d 347, 350 (Tex. App.—
Corpus Christi 2001, no pet.) (citing In re M.M., 980 S.W.2d 699, 700–01 (Tex. App.—
San Antonio 1998, no pet.)); see In re B.R.G., 48 S.W.3d 812, 819 (Tex. App.—El Paso
2001, no pet.).
Court to make a record by electronic recording) with In re B.R.G., 48 S.W.3d 812, 817 (Tex. App.—El Paso
2001, no pet.) (considering an electronic recording from a county not authorized to make electronic records
and noting that, under section 201.009(c) of the family code, “in the absence of a court reporter or on
agreement of the parties, the record may be preserved by any means approved by the associate judge”);
see Rules Governing The Procedure For Making a Record of Court Proceedings By Electronic Recording,
reprinted in TEXAS RULES OF COURT, VOL. I—STATE 465 (West 2012) (listing counties authorized to make
electronic records).
Moreover, the rules of appellate procedure state that, when proceedings are recorded
electronically, an appellant “must file one copy of an appendix containing a transcription of all portions of
the recording that the party considers relevant to the appellate issues or points.” TEX. R. APP. P. 38.5(a)(1).
Flores’s brief does not contain such an appendix.
In any event, we need not consider the audio recording because the evidence that appears in the
clerk’s record—in particular, the affidavits filed by Flores—supports the trial court’s judgment. See TEX. R.
APP. P. 47.1; In re Lee, 411 S.W.3d 445, 484 n.17 (Tex. 2013) (“[W]hen there is some evidence to support
the trial court's decision, no abuse of discretion exists.”).
9
In light of this evidence, we cannot say the trial court abused its discretion in either
setting the amount of current support or declining to abate the current support obligation
during the period of Flores’s incarceration.8 We overrule Flores’s third issue.
III. CONCLUSION
The trial court’s judgment is affirmed.
DORI CONTRERAS GARZA,
Justice
Delivered and filed the
17th day of April, 2014.
8 We need not specifically address Flores’s contention that the trial court erred in concluding that
he is “voluntarily unemployed or underemployed” because the record clearly shows that the current support
award was based on the minimum wage presumption, not on Flores’s earning potential. See TEX. FAM.
CODE ANN. § 154.066(a) (West, Westlaw through 2013 3d C.S.). (“If the actual income of the obligor is
significantly less than what the obligor could earn because of intentional unemployment or
underemployment, the court may apply the support guidelines to the earning potential of the obligor.”); see
also TEX. R. APP. P. 44.1(a), 47.1.
10