Opinion
No. 07-14-00295-CV
07-18-2016
JACOB FRANK AYALA, APPELLANT v. VERONICA VALDEZ APODACA, APPELLEE
On Appeal from the 222nd District Court Deaf Smith County, Texas
Trial Court No. DR-08E-082A; Honorable Jeremy Fowler, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
Proceeding pro se and in forma pauperis, Appellant, Jacob Frank Ayala, appeals from the trial court's order modifying his child support obligation and reducing his child support arrearage to judgment. By a sole, multifarious issue, Ayala contends the trial court denied him due process. We affirm.
BACKGROUND
In 2008, Ayala was ordered to pay $200 per month in child support for his son, beginning January 1, 2009. At the time, he already owed $2,000 in prior child support arrears. Ayala made some payments; however, in 2011, he was incarcerated for fifteen years. In January 2014, the Office of Attorney General (OAG) sued for modification of the 2008 order, confirmation of his child support arrears, and entry of a judgment for unpaid support. The OAG alleged Ayala had failed to pay his child support as ordered, leaving a current arrearage in the sum of $14,201.68, as of October 15, 2013.
According to the record, Ayala is not eligible for parole until November 2017.
On June 26, 2014, the trial court conducted a telephone hearing. Ayala was sworn in and testified that he receives approximately $50 to $75 a month from his family for his commissary purchases. He also confirmed he has no property and no ability to produce income while incarcerated, and he also apprised the trial court that he has another son, although he is not under court order to provide support for that child.
The trial court gave Ayala an opportunity to express his concerns. He complained that he had never received a copy of the original 2008 order despite repeated requests. Ayala also questioned the trial court's jurisdiction because his son was living with his maternal grandmother in Randall County and not in Deaf Smith County. He requested appointment of counsel for himself and an attorney ad litem for his son. He also requested a jury trial and additional time for discovery after which the trial court gave him the option to have a continuance or waive additional discovery and have the trial court render its order. On the record, Ayala opted to "close the case."
At the conclusion of the telephone hearing, the trial court denied Ayala's requests. The trial court determined Ayala's net resources to be $46.18 a month and reduced his child support obligation from $200 per month to $8 per month. The court determined that his current arrearage was $15,577.04 and ordered him to pay $25 per month towards arrearages for a total payment of $33 per month, beginning on April 1, 2014. Contrary to Ayala's assertion on appeal, the trial court determined that there would be no amount ordered for medical support. Finally, Ayala was informed how and where to make his payments.
Pursuant to Ayala's request, the trial court entered Findings of Fact and Conclusions of Law. The trial court found a material change in Ayala's circumstances and reduced his monthly child support payments as described above. The trial court ordered $0 toward medical support and reduced his arrearages to judgment to be satisfied by payments of $25 per month.
By his pro se brief, Ayala makes a global complaint that the trial court denied him due process. We disagree. By its brief, the OAG responds to these specific complaints: (1) Ayala's due process rights were not violated when the district clerk failed to timely serve him with a copy of the 2008 final order; (2) the trial court did not lack continuing jurisdiction over the case simply because Ayala's son was living with his maternal grandmother in a different county; (3) the trial court did not abuse its discretion in failing to appoint an attorney ad litem for the child and for Ayala; and (4) the trial court did not abuse its discretion in denying his request for a jury trial. The OAG also adds that any remaining issues Ayala may have raised do not comply with Rule 38.1 of the Texas Rules of Appellate Procedure and are therefore waived.
STANDARD OF REVIEW
A court's modification of an order in a suit affecting the parent-child relationship is reviewed for abuse of discretion. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2010); In re M.S.F. and M.S.F., 383 S.W.3d 712, 715 (Tex. App.—Amarillo 2012, no pet.). "A court's order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion." Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). A trial court abuses its discretion, and therefore errs, when it acts arbitrarily and unreasonably, or without reference to guiding rules and principles. Id. at 109. Ayala does not challenge the sufficiency of the evidence to support the modification order.
ANALYSIS
At the time the suit for modification was filed, Ayala had actual notice of the original child support order entered on December 1, 2008. The modification order in question was signed on June 26, 2014, and fifteen days later, on July 11, 2014, according to his Certificate of Service, Ayala mailed his Motion to Vacate the June 26th 2014 Judgment or in the Alternative Motion to Modify. That same day, he also mailed his Request for Findings of Fact and Conclusions of Law. Therefore, Ayala had actual notice of the modification order within twenty days after the order was signed. See TEX. R. CIV. P. 306a(4). See also Ginn v. Forrester, 282 S.W.3d 430, 433 (Tex. 2009) (noting that Rule 306a(3) does not impose upon a clerk an affirmative duty to record the mailing of required notices).
The documents were file-stamped by the trial court clerk on July 14, 2014. --------
A trial court retains continuing, exclusive jurisdiction unless otherwise provided by the Texas Family Code. TEX. FAM. CODE ANN. § 155.002 (West 2014). A party may file a motion to transfer a case from the court of original continuing, exclusive jurisdiction to a proper court in another county if the child resides in that county. Id. at 155.202(b). However, the motion may be denied if the child has resided in the new county for less than six months at the time the hearing commences. Id. at 155.202(a).
Ayala concedes in his brief that the 222nd District Court "did at one time have jurisdiction" over the case but asserts that his son has lived in Randall County for over a year. Ayala did not file a motion to transfer; instead, he filed a Notice to the Court by which he gave notice that he had learned from his brother "that the child the subject of this suit has been living with his maternal grandmother—without the mother of the child . . . ." This Notice to the Court cannot be considered as a motion to transfer. Because no effort was ever made to transfer the court of continuing jurisdiction from the 222nd District Court to a proper court in Randall County, the trial court appropriately exercised its continuing jurisdiction over the proceeding.
Relying on various sections of chapter 107 of the Texas Family Code, Ayala filed a Motion for Appointment of Counsel for himself and requested a guardian ad litem and an attorney ad litem for his son. Neither Ayala nor his son was entitled to mandatory appointment of counsel. The provisions relied on by Ayala apply in suits filed by a governmental entity in which termination of the parent-child relationship or appointment of conservatorship of a child is sought. See TEX. FAM. CODE ANN. §§ 107.011, 107.012 (West 2014), § 107.013(a) (West Supp. 2015).
A district court does have discretionary authority to appoint counsel for an indigent civil litigant. TEX. GOV'T CODE ANN. § 24.016 (West 2004). However, the Texas Supreme Court has never held that a civil litigant must be represented by counsel to carry on its essential, constitutional function. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 594 (Tex. 1996). "[I]n some exceptional cases, the public and private interests at stake are such that the administration of justice may best be served by appointing a lawyer to represent an indigent civil litigant." Id.
Ayala's case does not represent an exceptional case. His child support obligation was substantially reduced from $200 per month to $8 per month and his existing arrearages were merely confirmed to judgment. The trial court had continuing jurisdiction to hear the case and did not abuse its discretion in denying Ayala's request for appointment of counsel for him or his son.
Ayala was not entitled to a jury trial on the modification proceeding. Section 105.002(c)(2) provides that an issue of child support may not be submitted to a jury. TEX. FAM. CODE ANN. § 105.002(c)(2) (West 2014). Additionally, the trial court properly entered the required findings in a child support order pursuant to section 154.130 and an order for medical support pursuant to section 154.181, albeit in the amount of $0.
Having considered all properly raised and briefed arguments, Ayala's issue that his due process rights were violated is overruled.
CONCLUSION
The trial court's Order in Suit for Modification of Support Order and to Confirm Support Arrearage is affirmed.
Patrick A. Pirtle
Justice