Opinion
No. 07-16-00359-CV
10-11-2017
IN THE INTEREST OF D.B., A CHILD
On Appeal from the 431st Judicial District Court Denton County, Texas
Trial Court No. 2013-71200-431 , Honorable Jonathan Bailey, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Pending before the court is the appeal from an order in a suit affecting the parent-child relationship. The appellant, M.M., is the mother of the child involved, that is, D.B. The father is D.S.B. M.M. raises several issues. For the reasons stated below, we affirm the final order of the trial court.
Because this appeal was transferred from the Second Court of Appeals, we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See TEX. R. APP. P. 41.3.
Issues One and Two
Through her first and second issues, M.M. contends that the trial court erred when it "failed to issue findings as required by § 154.130 [of the Texas Family Code] thus abusing its discretion in terminating Appellee's child support obligation without any findings to substantiate or explain why it deviated . . . from the child support guidelines." So too did she argue that the lack of findings inhibited her from properly presenting her appeal.
Findings of fact and conclusions of law have been filed with this Court. Furthermore, M.M. and D.S.B. were afforded opportunity to submit supplemental briefing which addressed "issues relevant to the findings and conclusions filed by the trial court." M.M. accepted that opportunity. Given these circumstances, her first two issues are moot, and, therefore, we overrule them.
Issue Three
Through her third issue, M.M. contends that "[t]he trial court abused it's [sic] discretion in its determination of liability for [D.B.'s] $1,400 dental expense." We reviewed the final order of the trial court and found nothing adjudicating or otherwise imposing upon her liability for a $1,400 dental expense. Nor was that matter presented for consideration at the evidentiary hearing that culminated in the trial court's final order, though she broached it in a document appearing in the clerk's record and entitled "Response to Motion to Revoke Suspension of Commitment." Given these circumstances, we conclude that the issue is neither ripe nor preserved for review. It too is overruled.
Later in her supplemental brief, she implicitly acknowledged that she was not ordered to reimburse the dental expense. This acknowledgment appears within her last issue where she contends that her ex-husband should not have been awarded attorney's fees for seeking reimbursement for the dental expense. Allegedly, he was not entitled to such fees because he did not succeed on the claim.
Issue Four
Through her supplemental response, M.M. also complains about the prior notice given her of the final hearing. Allegedly, it did not comport with Texas Rule of Civil Procedure 245. She contends that she was entitled to but did not receive the forty-five days' notice mentioned in the rule, but rather only four days' prior notice. We overrule the issue.
The rule applies to the "first setting" of a contested case. State Farm Fire & Cas. Co. v. Price, 845 S.W.2d 427, 432 (Tex. App.—Amarillo 1992, writ dism'd). The record at bar indicates the June 28, 2016 date selected by the trial court to finally adjudicate the issues was not the first setting. According to the docket sheet, the final hearing previously had been scheduled for January 19, 2016, and April 12, 2016. Both of those dates were passed due to other trials "with higher priority."
Furthermore, M.M. did not object, otherwise voice disagreement with the June 28th setting either before or at the trial, or seek more time from the trial court to prepare. So too had she filed, on June 27, 2016, her "Mother's Response & Objection to Father's Proposed Parenting Plan" in an apparent effort to clarify issues needing attention at the final hearing. By appearing and failing to object, bring the matter to the trial court's attention, or seek a continuance, she waived her complaint even if the notice was untimely. See In re A.H., No. 02-06-00211-CV, 2006 Tex. App. LEXIS 10249, at *3-4 (Tex. App.—Fort Worth Nov. 30, 2006, no pet.) (mem. op.) (stating that a "party must timely and specifically object to insufficiency of notice under rule 245, or the error is waived" and the "objection must be made before trial"); Price, 845 S.W.2d at 432 (stating same).
Issue Five
Next, M.M. contends, via her supplemental brief, that the trial court erred "in allowing Dr. Linda Rollins-Threats to testify as an expert when Appellant received no notice of the witness subpoena issued and Appellee failed to qualify her as an expert." We overrule the issue for two reasons. First, the contention came with neither argument, citation to the record, nor citation to authority. It was merely a bare assertion of error, and, consequently, waived. See Newby v. Uhl, No. 02-10-00466-CV, 2012 Tex. App. LEXIS 6360, at *15-16 (Tex. App.—Fort Worth Aug. 2, 2012, no pet.) (per curiam) (mem. op.).
Second, M.M. uttered no contemporaneous objection to the witness testifying at trial. Thus, the requirements of Rule 33.1 of the Texas Rules of Appellate Procedure went unsatisfied. See TEX. R. APP. P. 33.1(a)(1)(A) (stating that "[a]s a prerequisite to presenting a complaint for appellate review, the record must show that (1) the complaint was made to the trial court by a timely request, objection, or motion that: (A) stated the grounds for the ruling that the complaining party sought"); see also TEX. R. EVID. 103(a) (stating preservation requirements similarly).
Issue Six
In her next issue, M.M. asserts that "[t]he trial judge abused his discretion in terminating Appellee's child support obligation by not following the mandatory provisions of the child support guidelines" and that the finding of fact did not include the required statutory calculations. We overrule the issue.
The trial court determined in its findings of fact that "no child support should be payable by either parent to the other parent" and "[b]ased on the equal periods of possession ordered for each parent, the Court terminated Respondent Father's temporary child support obligation." It then concluded as a matter of law that "application of the percentage guidelines in this case would be unjust or inappropriate due to the equal periods of possession ordered for each parent." Also contained within its findings were those disclosing that (1) "Respondent Father was unemployed due to temporary physical disability," and (2) "Respondent Father is obligated to support another minor child not before this court."
Furthermore, statute provides that the trial court "may" order either or both parents to support the child. TEX. FAM. CODE ANN. § 154.001(a) (West 2014). And, whether to so order and the amount ordered, if any, is a decision that lies within the trial court's discretion. See In re V.J.A.O., No. 05-15-01534-CV, 2017 Tex. App. LEXIS 2049, at *2 (Tex. App.—Dallas Mar. 9, 2017, pet. denied) (mem. op.).
We next observe that the legislature thought to enact child support guidelines, and declared that child support set per those guidelines is presumptively reasonable. See TEX. FAM. CODE ANN. § 154.122(a) (West 2014). It also afforded the trial court opportunity to deviate from those guidelines when application of them would be "unjust or inappropriate under the circumstances." Id. § 154.122(b). Circumstances to consider in assessing whether to deviate from the guidelines appear of statute. See id. § 154.123(b) (West 2014) (itemizing various indicia). Yet, they are not exclusive; the trial court is welcomed to consider other indicia consistent with the child's best interests, too. Id. § 154.123(b)(17); In re Grossnickle, 115 S.W.3d 238, 246 (Tex. App.—Texarkana 2003, no pet.); In re Z.B.P., 109 S.W.3d 772, 782-83 (Tex. App.—Fort Worth 2003, no pet.), overruled on other grounds by Iliff v. Iliff, 339 S.W.3d 74, 83 n.2 (2011). Moreover, the relevant indicia may suffice to support a decision to impose no obligation on a parent to pay child support to the other parent. See, e.g., In re Z.B.P., 109 S.W.3d at 781-82 (wherein the appellate court held that the trial court did not abuse its discretion "in eliminating Appellee's child support payments"). With these observations in mind, we turn to appellant's somewhat unclear assertion.
To the extent she argues that the trial court was obligated to abide by the statutory guidelines in all situations, she is wrong. It need not do so if the circumstances warrant deviation, and whether they do here is not something M.M. briefed.
To the extent that M.M. argues that the trial court's findings failed to include data required by § 154.130(b) of the Family Code, we say the following. Per that section, the legislature said that "[i]f findings are required [under § 154.130(a)], the court shall state whether the application of the [child support] guidelines would be unjust or inappropriate and shall state the following in the child support order: (1) the net resources of the obligor per month are $__________; (2) the net resources of the obligee per month are $__________; (3) the percentage applied to the obligor's net resources for child support is __________%; and (4) if applicable, the specific reasons that the amount of child support . . . ordered by the court varies from the amount computed by applying the percentage guidelines." Id. § 154.130(b)(1)-(4) (West 2014). Yet, the statute contemplates situations wherein child support is ordered but in an amount differing from the statutory guidelines. When no support is ordered, the mandate of § 154.130(b) is not triggered. See In re J.D.M., 221 S.W.3d 740, 743 (Tex. App.—Waco 2007, no pet.) (wherein the trial court awarded no child support). As previously mentioned, no support was ordered here.
Issue Seven
Through her final issue issue, M.M. asserts that "[a]s to the award of attorney's fees, [the] record demonstrates that Appelle[e] did not meet his burden of proof to establish his claim for reimbursement for the minor child's dental expenses or that Appellant denied him possession of the minor child on December 27, 2017[;] therefore[,] he is not entitled to attorneys fees for the same." We overrule the issue.
The burden of an appellant or one attacking the trial court's decision is to illustrate that the decision is wrong. So must the appellant not only provide us with a record sufficient to support the allegation, see Feldman v. Marks, 960 S.W.2d 613, 614 (Tex. 1996) (per curiam), but also cite to those portions of the record supporting the allegation as well as to pertinent legal authority. See TEX. R. APP. P. 38.1(i). M.M. did not carry those burdens here.
While counsel for D.S.B. sought attorney's fees exceeding $33,000, the trial court simply awarded $10,220.98. M.M. did not attempt to illustrate how or explain in her brief that any of the actual award encompassed fees she now deems objectionable. Nor did she cite us to anything of record purporting to illustrate as much.
She may be acting pro se, but that does not relieve her from complying with the rules of procedure. See Pena v. McDowell, 201 S.W.3d 665, 667 (Tex. 2006) (per curiam). Nor does it relieve her of the obligation to show that the trial court erred. So, in effect, she has not carried her burden to prove error.
We affirm the "Order in Suit Affecting the Parent Child Relationship" entered by the trial court.
Brian Quinn
Chief Justice