E. L. P., in Re

CLARK, Justice,

concurring.

I concur in the results reached by Justice Butts. I do not concur, however, in her conclusion that the child’s grandparents could not have become parties in the litigation for the purpose of asserting their own claim, and I believe that certain of the facts require further discussion in light of the possibility of additional proceedings in the trial court.

The claim for reimbursement asserted at trial, over appellant’s objection, was in the nature of a claim by third parties (the child’s grandparents) for “necessaries” previously furnished to the child.¹ The child’s mother testified that she had contributed nothing whatever to the support or maintenance of the child. She was, at the time of trial, a college student and still a non-contributing parent by choice. The child’s grandparents have never been parties to the suit, as appellant pointed out to the trial court both before and during trial. Nevertheless, the child’s grandmother was allowed to testify, over objection, concerning expenditures purportedly made by her in behalf of the child, and the $12,000 award was based upon that testimony.

It is elementary that a court cannot adjudicate directly upon a person’s rights unless he is either actually or constructively before the court. Gregory v. Stetson, 133 U.S. 579, 10 S.Ct. 422, 33 L.Ed. 792 (1890); Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 481 (1907). A judgment in favor of a person who did not sue will bind neither that person nor the defendant against whom the judgment was rendered. Houston, E & W. T. Ry. Co. v. Skeeter Bros., 44 Tex.Civ.App. 105, 98 S.W. 1064 (1906, writ dism’d w. o. j.). I do not agree, however, with Justice Butts’ unqualified assertion that error would have resulted had the child’s grandparents become parties in the court below. Under proper pleadings, I believe they could have become parties and asserted whatever right to reimbursement, if any, they may have had against the father of the child.

Although Justice Butts’ opinion recognizes that the trial court’s award of child support was “not based upon fully developed evidence,” it does not point out for the trial court’s benefit the specific evidentiary deficiency which requires that the case be remanded on that issue.

The child’s mother testified initially that she needed “at least $300.00 a month” in child support. Later she adopted the sum of $504.00 per month, and under cross-examination she agreed that she needed $268.00 per month. What is more important, however, is that the record is utterly devoid of evidence of the appellant’s ability to pay child support. After the evidence was closed the guardian ad litem suggested that the court take into consideration “who is more capable of providing the necessaries for the child at this time” in determining the amount of child support to award. In response, the trial judge observed correctly, “I don’t think we heard any evidence on that. I don’t believe we’ve heard any evidence or testimony on that point.” The trial court nevertheless awarded $350.00 per month, despite the complete absence of evidence on that critical point. While the trial court has • wide discretion in fixing the amount of child support payments and while each case must stand on its own facts, the determination of that amount must be supported by evidence that the parent obligated for child support is able to pay, and can pay, the amount specified in the order. In the Interest of J. M. and G. M., Children, 585 S.W.2d 854 (Tex.Civ.App.—San Antonio 1979, no writ). The amount of monthly child support to be paid by appellant should be based upon competent evidence of all factors appropriate for consideration, including appellant’s ability to pay for the support of his daughter.

With respect to the guardian ad litem fee, appellant did not object that the trial court’s award was “not based upon fully developed evidence”; in fact, appellant suggested that the trial court’s award was punitive as to him and “in complete disregard of the evidence.”

The trial court awarded a fee of $500.00 as compensation for the guardian ad litem, who appears from the record to be an employee of the Texas Department of Human Resources.² Nothing appears in the record with respect to the amount of the fee except the following colloquy between the trial judge and the guardian ad litem:

THE COURT: Mr. McCarty, you were appointed the Guardian Ad Litem to represent the interest of the child. How many times have you been present during these proceedings, with reference to attorney’s fees, Guardian Ad Litem fees? Are you requesting same?

MR. McCARTY: Your Honor, I have been the Guardian Ad Litem and I would say that a sufficient fee would be $75.00.

In light of the statement made by the guardian ad litem, and in the absence of any evidence to support a larger sum, I would hold that the trial court’s award of nearly seven times the amount requested was an abuse of discretion.

I find the record before us disturbing because it suggests at the very least a certain lack of concern for the procedural and substantive rights of one litigant, from the granting of a summary judgment without notice, to the award of a guardian ad litem fee nearly seven times the amount requested by the person appointed.³

I would also point out that neither the judgment concerning paternity nor the judgment concerning child support designates any person as either managing or possessory conservator of the child, a deficiency which should be remedied in the interest of the child.

CADENA, C. J., joins.

1 . The “necessary” expenditures claimed by and awarded to the child’s mother and grandparents included such items as maid service at the grandparents’ home for more than three months before the child was bom, medical expenses paid for the child’s mother before the child was born, attorneys’ fees of $2,000.00 paid two months before the child was bom, private kindergarten tuition, an “educational endowment” insurance policy, of which the grandparents are beneficiaries, and dancing lessons. Although Justice Butts’ opinion characterizes the facts before the trial court as unique, because the child has “severe medical problems,” the child’s mother testified that “[s]he’s normal, except for her — she is pigeon-toed.”

2 . The guardian ad litem is sometimes referred to in the statement of facts as an “attorney ad litem,” but the record is not clear as to whether or not he is an attorney. The record does reflect the appointment of another person as attorney ad litem for the child at an earlier stage in the suit, but he appears to have taken no part in the proceedings which resulted in the judgment under attack here. The propriety of a Department of Human Resources employee serving and receiving compensation as a guardian ad litem in this case was not raised in the trial court or on this appeal.

3 . The summary judgment of May 2, 1980, was granted without notice to appellant, contrary to Tex.R.Civ.P. 166-A, even though appellant had counsel of record in the cause at the time. Indeed, the record reflects that summary judgment was purportedly granted orally, before a motion therefor was even filed, and subsequently reduced to writing and signed by the trial judge. Appellant’s present counsel did not represent him at that earlier stage of this litigation.