Jana Mishelle Terry v. Joe Clark Faulkner

Opinion filed May 12, 2011
In The
Eleventh Court of Appeals
__________
No. 11-10-00174-CV
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JANA MISHELLE TERRY, Appellant
V.
JOE CLARK FAULKNER, Appellee
On Appeal from the 118th District Court
Howard County, Texas
Trial Court Cause No. 45746
MEMORANDUM OPINION
The attorney general instituted the underlying proceedings for the purpose of establishing
the parent-child relationship between Joe Clark Faulkner and the child, R.C.T., on January 16,
2008. The trial court entered a final order on May 27, 2010, wherein it found that Faulkner is the
biological father of the child. The trial court additionally ordered Faulkner to pay retroactive
child support in the amount of $4,881.
Jana Mishelle Terry is the mother of the child. She appeared pro se at the final hearing,
and she timely filed a pro se notice of appeal. She has filed a pro se brief in this appeal wherein
she protests the amount of retroactive child support awarded by the trial court. We affirm.
The Family Code gives the trial court discretion to determine whether to award
retroactive child support when paternity is established; the award is not mandatory. Garza v.
Blanton, 55 S.W.3d 708, 709 (Tex. App.—Corpus Christi 2001, no pet.); see TEX. FAM. CODE
ANN. § 154.009(a) (Vernon 2008) (“The court may order a parent to pay retroactive child
support.”) (emphasis added); id. § 160.636(g) (“On a finding of parentage, the court may order
retroactive child support.”) (emphasis added). We review the trial court’s award of retroactive
child support for an abuse of discretion. See Garza, 55 S.W.3d at 709.
Assessing whether the trial court abused its discretion in its award of retroactive child
support necessarily requires a review of the evidence presented to the trial court. See Landon v.
Jean-Paul Budinger, Inc., 724 S.W.2d 931, 938 (Tex. App.—Austin 1987, no writ) (“Whether
the trial court acted rationally or irrationally, in a legal sense, may only be appraised in reference
to the factual context in which the court acted in making its choice between possible alternative
rulings.”). We are unable to review the evidence presented to the trial court, however, because a
reporter’s record has not been filed in this appeal. In this regard, the court reporter has advised
the court in a letter dated January 6, 2011, that Terry did not request the preparation of the
reporter’s record or make payment arrangements for the preparation of the reporter’s record. An
appellant must properly request and pay for the record (or make arrangements to pay for the
record) before the court reporter’s duty to prepare and file the reporter’s record arises. See
TEX. R. APP. P. 35.3(b)(3). Ultimately, the party that complains of an abuse of discretion has the
burden to bring forth a record showing such abuse. Simon v. York Crane & Rigging Co., 739
S.W.2d 793, 795 (Tex. 1987). Absent such a record, the reviewing court must presume that the
evidence before the trial judge was adequate to support the decision. Id. Because we lack a
reporter’s record of the evidence that the trial court considered in determining the amount of
retroactive child support, we cannot determine whether the trial court abused its discretion in that
determination, and we must presume that the court had adequate evidence before it to justify its
decision. Accordingly, we overrule Terry’s sole issue.
The judgment of the trial court is affirmed.
PER CURIAM
May 12, 2011
Panel1 consists of: Wright, C.J.,
McCall, J., and Hill, J.2
1
Rick Strange, Justice, resigned effective April 17, 2011. The justice position is vacant pending appointment of a
successor by the governor.
2
John G. Hill, Former Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.
2