Summary
holding appellant did not meet her burden to show inability to pay for reporter's record where her monthly income exceeded her expenses by $300 and appellant did not submit evidence of reporter's fee
Summary of this case from Allen v. Bank of Am.Opinion
No. 05-17-00341-CV
04-20-2017
IN THE INTEREST OF J.S. AND J.S., MINOR CHILDREN
On Appeal from the 330th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-16-02901
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Evans, and Justice Stoddart
Opinion by Justice Stoddart
Before the Court is Mother's motion for review of the trial court's order sustaining the court reporter's challenge to Mother's "affidavit of indigency" and directing Mother to pay the fee for the reporter's record in full. See TEX. R. CIV. P. 145(g). We affirm the order.
The trial clerk did not challenge Mother's affidavit and has filed the clerk's record without payment of costs. Mother is also proceeding without payment of costs in this Court.
BACKGROUND
Mother, appearing pro se, filed the affidavit of indigency following the trial court's order naming her possessory conservator of the children and allowing supervised visitation only. In the affidavit, Mother stated she is employed by Jani King as a "Team Lead" and has a net monthly income of $1700. She further stated she owns no property and has no debts. She receives no public benefits, and her monthly expenses, consisting of "rent/house payments/maintenance," "food and household supplies," "utilities and telephone," "school and child care," and "gas, bus fare, auto repair," total $1400.
Mother appealed that order by separate notice of appeal, and that appeal is docketed as appellate cause number 05-17-00204-CV.
At the hearing on the court reporter's motion challenging the affidavit, Mother offered her lease agreement in support of her affidavit, but nothing else. In sustaining the reporter's challenge, the trial court found Mother failed to provide documentation "supporting the entirety of her affidavit," failed to provide "credible evidence to support [her] expenditures," and had "sufficient income to secure[the] reporter's record."
Mother did not call herself or anyone else as a witness. The court reporter called Mother as a witness and asked her whether she had documents in support of her affidavit. Mother had only the lease agreement. In her motion for review, Mother states she was unaware she needed to bring supporting documentation to the hearing and attaches copies of child care receipts, pay stubs, the lease agreement, and a "government assistance form." We cannot, however, consider documents that are not part of the appellate record. See Wilhoite v. Sims, 401 S.W.3d 752, 762 (Tex. App.—Dallas 2013, no pet.).
APPLICABLE LAW AND STANDARD OF REVIEW
Texas Rule of Civil Procedure 145 exempts a party from paying court costs, including the reporter's fee, if the party files a statement showing he does not have the funds to pay. See TEX. R. CIV. P. 145(a), (c). However, the clerk, another party, attorney ad litem in certain cases, the court reporter, or the court itself may challenge the statement of inability to pay costs by motion. See id. 145(f)(1)-(4). The trial court may grant the motion and order payment of costs if, following a hearing, the declarant fails to establish his inability to afford costs. See id. 145(f)(5). The trial court may order the declarant pay that part of the costs he can afford or pay in installments. See id. 145(f)(7). On appeal, the trial court's order is reviewed for abuse of discretion and will be affirmed unless the record reflects the trial court acted in an arbitrary and unreasonable manner or without reference to any guiding rules or principles. See In re A.L.V.Z., 352 S.W.3d 568, 570 (Tex. App.—Dallas 2011, no pet.). The central inquiry under rule 145 "is not merely whether [the declarant] can pay costs, but whether [the declarant] can afford to pay costs" and still pay for "basic essentials, like housing or food." See TEX. R. CIV. P. 145, cmt.
DISCUSSION
The court reporter having filed a motion challenging the affidavit of indigence, it was Mother's burden to prove she could not afford to pay the fee for the reporter's record. See id. 145(f)(5). Mother, however, did not meet this burden. The record shows Mother's monthly income exceeds her monthly expenses by $300, but the record does not reflect the cost for preparation of the reporter's record. Without knowing the reporter's fee, we are unable to determine what effect payment of that fee would have on Mother's ability to meet her basic needs considering the $300 she has left each month after paying her living expenses. See id. cmt. On the record before us, we conclude the trial court did not abuse its discretion in sustaining the court reporter's challenge to Mother's affidavit. Cf. Moreno v. Perez, 363 S.W.3d 725, 743-44 (Tex. App. —Houston [1st Dist.] 2011, no pet.) (concluding trial court abused its discretion in sustaining contest to indigence affidavit where, among other factors, appellant received "government entitlement income" for housing and her "light bill," she had debt in the amount of $26,000, and her employment income exceeded her monthly expenses by only $5); In re Sosa, 980 S.W.2d 814, 816 (Tex. App.—San Antonio 1998, orig. proceeding) (concluding trial court abused its discretion in sustaining contest where affidavit established appellant's monthly expenses exceeded her income and appellant had no assets she could use to finance the appeal). We affirm the trial court's order.
/Craig Stoddart/
CRAIG STODDART
JUSTICE 170341F.P05