Summary
holding that appellant waived complaint about his lack of appearance at SAPCR modification hearing where record showed no request for bench warrant or for alternate means to participate in hearing
Summary of this case from Larson v. LarsonOpinion
NO. 09-15-00219-CV
02-18-2016
IN THE INTEREST OF J.A.O., I.J.O., AND J.A.O.
On Appeal from the 411th District Court San Jacinto County, Texas
Trial Cause No. 10796
MEMORANDUM OPINION
In this suit affecting the parent-child relationship, J.A.O. (Father) appeals the trial court's order modifying a prior child support order and confirming his child support and medical support arrearages as to his children, J.A.O, I.J.O., and J.A.O. In this pro se appeal, Father argues the trial court abused its discretion in entering the order because Father was not allowed to be present at the modification hearing or to present evidence of his inability to pay the arrearages. We affirm.
For purposes of confidentiality, we refer to the children by initials and the parents by their relationship to the children. See Tex. Fam. Code Ann. § 109.002(d) (West 2014).
BACKGROUND
On July 19, 2012, the trial court issued an order modifying Father's child support obligation. Father was ordered to pay $937 in current monthly child support and $229 in current monthly medical support. Father was subsequently incarcerated. On March 20, 2015, the Texas Office of Attorney General (OAG) filed a Suit for Modification of Support Order and Motion to Confirm Support Arrearage. The OAG requested that the trial court modify Father's child support obligation and confirm child support and medical support arrearages accrued since the July 19, 2012 modification order.
Medical support is an additional child support obligation that may be enforced by any means available for the enforcement of child support. See Tex. Fam. Code Ann. § 154.183(a) (West Supp. 2015).
On May 13, 2015, Father filed a pro se response to the OAG's suit and argued that his circumstances were "diametrically different" from when the trial court entered its July 19, 2012 order. According to Father, he was incarcerated on February 18, 2014, and is serving a three-year sentence. He asserted that he could not pay the current monthly amounts or arrearages because he had been diagnosed with cancer, had his left arm amputated, and cannot "be gainfully employed any longer as a Driller." Father requested that the trial court "enter no order and hold this suit in abeyance until such time respondent is released from prison and can appear in person."
The trial court held a modification hearing on May 21, 2015. According to the modification order, Father, "although duly notified, did not appear." No reporter's record from the hearing was filed with this Court. On May 21, 2015, the trial court signed an order finding and confirming that Father then owed $19,923.34 (plus interest) in child support arrearage and $5,027.56 (plus interest) in medical support arrearage as of April 30, 2015, and entering judgment against Father for the arrearages. The order also found that there had been a material substantial change since the July 19, 2012 modification order due to Father's incarceration. The trial court also ordered Father to pay $0 in monthly current child support and $0 in monthly current medical support beginning June 1, 2015. Father appeals.
The order states that "[a] record of the proceedings was made by audio recording."
The portion of the order titled "CHILD SUPPORT JUDGMENT" orders Father to pay $25 a month for child support beginning June 1, 2015, and "until the arrearage is paid in full, or on the termination of current support for any child the subject of this suit."The portion of the order titled "MEDICAL SUPPORT JUDGMENT" orders Father to pay $25 a month for medical support beginning June 1, 2015, and "until the arrearage is paid in full."
"The trial court may modify a previous child support order if 'the circumstances of the child or a person affected by the order have materially and substantially changed' since the date of the order's rendition." In the Interest of C.C.J., 244 S.W.3d 911, 917 (Tex. App.—Dallas 2008, no pet.) (quoting Tex. Fam. Code Ann. § 156.401(a)(1)). "The [Texas] Family Code guides the calculation of child support and bases that calculation on a percentage of monthly resources." Tenery v. Tenery, 932 S.W.2d 29, 30 (Tex. 1996) (citing Tex. Fam. Code Ann. § 154.125).
ANALYSIS
In one appellate issue, Father argues the trial court abused its discretion in entering the modification order because Father was not allowed to be present at the modification hearing or to present evidence of his inability to pay the arrearages. According to Father, the Texas Family Code provides guidelines "to let the appellant be present during all phases of trial." He asserts that if he had been allowed to attend the modification hearing, he could have put on evidence of his disability due to cancer and the amputation of his arm, which Father alleges "would have been enough reason for the court to Suspend, Reduce, o[r] Abate this [sic] arrearages." Father also contends the order ordering him to pay the child support arrearages would cause him "undue hardship" because his only income is Social Security Disability Income.
An inmate does not have an absolute right to appear in court in a civil case. Armstrong v. Randle, 881 S.W.2d 53, 56 (Tex. App.—Texarkana 1994, writ denied); see also In the Interest of Z.L.T., 124 S.W.3d 163, 165 (Tex. 2003). Based on our review of the appellate record, Father did not request a bench warrant or request that the trial court provide an alternate means for him to participate. Cf. Dodd v. Dodd, 17 S.W.3d 714, 718 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (error for court not to consider repeated requests to trial court for bench warrant); Byrd v. Attorney Gen., 877 S.W.2d 566, 569 (Tex. App.—Beaumont 1994, no writ) (if court denies inmate's request to appear in person, court should allow him to proceed by affidavit, deposition, telephone, or other effective means). Accordingly, Father has waived any appellate complaint about his lack of appearance. Tex. R. App. P. 33.1(a).
The trial court's order reduced Father's current monthly child support and medical support to $0, and it confirmed an arrearage of $19,923.34 (plus interest) in past child support and an arrearage of $5,027.56 (plus interest) in past medical support, and it ordered Father to pay the arrearages. Father contends that ordering him to pay the child support and medical support arrearages would cause him "undue hardship" because his only income is Social Security Disability Income.
"An appellate court reviews an order enforcing a previous child support order for abuse of discretion." In the Interest of T.J.L., 97 S.W.3d 257, 265 (Tex. App.—Houston [14th Dist.] 2002, no pet.). "In calculating child support arrearages, the trial court's discretion is very limited." Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.—Houston [14th Dist.] 2009, no pet.). Section 157.263(b-1) of the Texas Family Code states that "[i]n rendering a money judgment under this section, the court may not reduce or modify the amount of child support arrearages but, in confirming the amount of arrearages, may allow a counterclaim or offset as provided by this title." Tex. Fam. Code Ann. § 157.263(b-1) (West 2014). "The trial court 'acts as a mere scrivener in mechanically tallying up the amount of arrearage.'" Chenault, 296 S.W.3d at 189 (quoting Lewis v. Lewis, 853 S.W.2d 850, 854 (Tex. App.—Houston [14th Dist.] 1993, no writ)). "Although the trial court can award certain offsets and credits, the trial court has no discretion to forgive or decrease a past child support obligation." Id. "Thus, in a proceeding to confirm child support arrearages, the trial court's child support calculations must be based on the payment evidence presented, not the trial court's assessment of what is fair or reasonable." Id. at 190. "As with child support arrearages, the trial court also has no discretion to modify, forgive, or make equitable adjustments in awarding interest on child support arrearages." Id. We overrule issue one. The trial court's judgment is affirmed.
In support of this proposition, the Fourteenth Court of Appeals cites in part to section 157.262 of the Texas Family Code, which was repealed in 2011. See Act of Apr. 20, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 184, repealed by Act of Sept. 1, 2011, 82nd Leg., R.S., ch. 508, § 24, 2011 Tex. Gen Laws 1264, 1270. As noted by the Texas Supreme Court, "[t]he portions of [section 157.262] related to the inability of courts to reduce or modify child support are now codified in section 157.263(b-1)[,]" and "[t]he amendment applies to child support enforcement motions that were pending in trial court or filed on or after September 1, 2011." Office of the Attorney Gen. of Tex. v. Scholer, 403 S.W.3d 859, 863 n.6 (Tex. 2013).
AFFIRMED.
/s/_________
LEANNE JOHNSON
Justice Submitted on January 5, 2016
Opinion Delivered February 18, 2016 Before Kreger, Horton, and Johnson, JJ.