Opinion
09-22-00383-CV
03-16-2023
TATIANA TELEGINA, Appellant v. VALADIMIR NECHAYUK, Appellee
On Appeal from the County Court at Law No. 3 Montgomery County, Texas Trial Cause No. 17-11-14052-CV
Before Golemon, C.J., Horton and Wright, JJ.
ORDER
PER CURIAM
Tatiana Telegina, appellant, filed a motion for appellate review of the trial court's order of January 26, 2023, which denied Telegina's request to have the trial court clerk and the court reporter prepare the record without payment of costs. Telegina did not have indigent status while she was before the trial court, but first claimed she could not afford payment of court costs when she perfected her appeal. In the statement Telegina provided to the trial court in support of her request for a free record, Telegina indicated she is presently unemployed and in addition to her monthly expenses is indebted by the attorneys' fee awarded in this case. Telegina presents thirteen complaints regarding the trial court's order. We reverse the trial court's order and rule that the appellant may proceed on appeal without payment of costs.
First, Telegina claims the trial court failed to comply with the mandatory notice requirement for an indigency hearing. See Tex.R.Civ.P. 145(f)(1). At the hearing, the trial court noted that because Telegina had objected to lack of notice the hearing had been re-set from January 3, 2023, to January 10, 2023, and that the notice of the January 10 hearing issued by email on December 30, 2022. Telegina admitted she received an email but argued an email failed to meet the service requirements of Texas Rule of Civil Procedure 145. See Tex.R.Civ.P. 145(f)(1) ("The declarant must be given 10 days' notice of the hearing. Notice must either be in writing and served in accordance with Rule 21a or given in open court."). Citing In the Interest of N.V.R., Telegina argues the notice requirement is not met by a letter or email advising of the hearing date. See In re N.V.R., No. 06-17-00022-CV, 2017 WL 727361 (Tex. App.-Texarkana Feb. 24, 2017, no pet.) (mem. op.). N.V.R. did not hold that service of the Rule 145(f) notice cannot be accomplished by letter or email; rather, it appears the problem with the notice was that it issued less than 10 days before the hearing. See id. at *2, n.5. Rule 145(f)(1) requires a written notice to be served in accordance with Rule 21a. See Tex.R.Civ.P. 145(f)(1). Rule 21a expressly permits service by email. See Tex.R.Civ.P. 21a (a) ("A document not filed electronically may be served in person, by mail, by commercial delivery service, by fax, by email, or by such other manner as the court in its discretion may direct.").
Telegina also argues that she did not receive proper notice of the hearing because the court reporter did not attach a 10-day notice of hearing to her supplemental motion in support of her contest. She also argues the attachments were not verified and the court reporter failed to explain how the documents attached to her supplemental motion were relevant to Telegina's ability to pay for the record. The court reporter swore that the exhibits attached to the supplemental motion were true and correct copies of the marital settlement agreement and Telegina's sworn inventories from the divorce case. The marital settlement agreement provided for wire transfers in a total amount of $340,000 to Telegina's account over a four-year period following the issuance of a certificate of dissolution of marriage. The inventories described the property in Telegina's possession that she claimed were part of the community or separate estates in 2017 and 2018.
At the hearing, the trial court explained to Telegina that the hearing had been set on the court's own motion. See Tex.R.Civ.P. 145(e)(2) ("The court on its own may require the declarant to prove the inability to afford costs when evidence comes before the court that the declarant may be able to afford costs or when an officer or professional must be appointed in the case."). The trial exhibits attached to the court reporter's supplemental motion show what evidence came before the court that Telegina may be able to afford costs. See id. The trial court found that Telegina received proper notice of the hearing. We conclude that the trial court's findings regarding notice are supported by the record.
Telegina complains the trial court's order is not supported by detailed findings that she can afford to pay costs. See Tex.R.Civ.P. 145(f)(2). The order not only contains findings that Telegina's testimony regarding her ability to pay for the record is not credible, it explains why the trial court rejected Telegina's testimony that she had only approximately $1,000 in cash on hand. The trial court explained that over the preceding five-year period Telegina had hundreds of thousands of dollars of untaxed income that she failed to account for and that the trial court did not believe she had expended all of it on legal fees and daily expenses of living. We conclude the trial court's order is supported by detailed findings.
Telegina argues the trial court disregarded the guiding principle that a person on public assistance may appeal without payment of costs on appeal. See Tex.R.Civ.P. 145(d)(1), cmt. to 2016 change. At the hearing, Telegina informed the trial court that she had recently received a monthly premium tax credit of $783 from the health insurance marketplace. She stated that she had applied for SNAP food benefits but that her application had not yet been processed. Telegina claims the trial court erred by disregarding her undisputed testimony that she is on public assistance. Although it is not necessarily an exclusive list, the form statement of inability to afford payment of costs does not list healthcare premium support as a type of public benefit that gives rise to a presumption of indigence. The evidence Telegina presented to the trial court did not establish that she receives public assistance that would have required her to establish poverty before she would be eligible for benefits. We conclude the trial court did not err by failing to presume that Telegina is indigent.
Telegina contends the trial court abused its discretion by completely disregarding her unrebutted statement of inability to afford payment of costs. She claims the contestants failed to prove her statement of inability to afford payment of costs was materially false or no longer true. See Tex.R.Civ.P. 145(e)(1). A trial court may require a declarant to prove her inability to afford costs when evidence comes before the court that the declarant may be able to afford costs. See Tex.R.Civ.P. 145(e)(2). Here the trial court considered the inventories Telegina submitted to the court and required her to prove that she is presently unable to afford costs. Id. At the hearing Telegina admitted she received $340,000 tax free in the previous five years. She provided no documentation to prove that she had disposed of those funds. The trial court found Telegina failed to provide any documentation to conform her payment of legal fees that year in that amount, and further found her testimony that she spent $80,000 of the $100,000 payment on her attorney's fees was not credible. The trial court's finding that Telegina failed to meet her burden of proof that she cannot afford to pay for the record was based on her failure to prove that she spent the money.
Telegina argues the trial court erred by denying her indigent status when she is "literally bankrupted" and owes "debts exceeding $865,000" absent any evidence of testimony to the contrary. Although she claims to be bankrupt, she does not state that she has filed a petition in bankruptcy court. The debt she refers to primarily consists of the jury's award of $827,518.50 for non-conditional attorney's fees in this case and $10,647 for costs. The judgment recovered by Nechayuk is a contingent liability the trial court could reasonably have excluded from its consideration of her current net worth. See McCullough v. Scarbrough, Medlin and Assocs., Inc., 362 S.W.3d 847, 849 (Tex. App.-Dallas 2012, no pet.). The record does not support Telegina's argument that she proved she is bankrupt.
Telegina argues the trial court erred by considering whether she could get a job as an interpreter. The trial court could consider Telegina's ability to obtain future employment in determining whether to order partial or delayed payment. See Tex.R.Civ.P. 145 (f)(3). The trial court questioned Telegina's veracity regarding her professed inability to obtain employment, but ultimately, the trial court did not order partial or delayed payment and the trial court did not deny indigent status to Telegina because she could obtain employment in the future.
Telegina argues the trial court erred by considering her past income rather than her current ability to pay. The record of the hearing and the trial court's findings reveal that the trial court considered Telegina's past income for the purpose of weighing her credibility when she claimed to have no resources on hand that she could use to pay for the record. At the hearing Telegina acknowledged that as the divorce property settlement she received from Nechayuk $100,000 in 2017, $60,000 in 2018, $60,000 in 2019, $60,000 in 2021, and $60,000 in 2022 and that she did not pay income tax on any of this income. The trial court found that Telegina's testimony that she paid her lawyer $80,000 out of the original $100,000 payment from the property settlement agreement not credible because she offered no documentation that she paid her legal fees. The trial court's findings concerning Telegina's past income relate to whether her testimony that she no longer possesses these assets is credible. The trial court did not err by considering whether income Telegina received in the past is presently available to her for payment of the appellate record.
The test for determining indigence is if the record as a whole shows by a preponderance of the evidence that the appellant would be unable to pay the costs, or a part thereof, or give security therefor, if she really wanted to and made a good faith effort to do so. Higgins v. Randall Cty. Sheriff's Office, 257 S.W.3d 684, 686 (Tex. 2008). Although Telegina failed to prove that she spent all of the money that she received in the property settlement, viewed in the light most favorable to the trial court's ruling the evidence does not support an implied finding that Telegina retains on hand funds that will be sufficient to pay the approximate $50,000 cost for the appellate record. Telegina explained that her inventory showed that in April 2018 she had $73,000 remaining from the $100,000 payment. The trial court could have reasonably rejected Telegina's assertion that she paid $80,000 to her lawyer because she failed to produce any documentation showing that she paid her lawyer's bill for his services. Telegina testified her monthly expenses include $2000 for rent, $300 for food and household supplies, $260 for utilities and telephone, $50 for clothing and laundry, $50 for medical and dental, $100 for transportation, and $1,487 for credit card payments. She testified she is behind on her credit card payments. She said she could not pay her rent and utilities for the month of the hearing. Assuming that in 2018 Telegina had $73,000 remaining of the initial $100,000 payment, and she received an additional $240,000, but she has had monthly living expenses of $4,300, at the time of the hearing she should have $55,000 in remaining resources. If Telegina must pay the entire cost of the record out of her remaining resources, she will have only $5,000 to pay her monthly expenses. She cannot rely on new income to pay her monthly expenses because she is unemployed. It is arbitrary to require Telegina to exhaust all of her resources on the appellate record when she is unemployed and has no source of regular income. Despite the fact that on this record the trial court was not required to presume Telegina was indigent, we conclude that the record of the hearing does not support the trial court's finding that Telegina failed to meet her burden of proving she could not afford to pay the $49,530 estimated cost she was provided for the Clerk's Record ($42,198) and the Reporter's Record ($7,332) needed to perfect her appeal. Because paying that amount in full, which is what the trial court's order required, would leave her indigent, we conclude Telegina established her indigence for purposes of Texas Rule of Civil Procedure 145.
The trial court did not consider whether Telegina requested documents to be included in the clerk's record that would be unnecessary for the resolution of the appeal.
Telegina also argues the trial court erred by ruling that the appeal is frivolous. In determining whether an appeal is frivolous, a judge may consider whether the appellant has presented a substantial question for appellate review. Tex. Civ. Prac. &Rem. Code Ann. § 13.003(b). Issues Telegina raised in her motion for new trial and that she argues are not frivolous include the recognition of the Russian certificate of divorce as an enforceable foreign judgment and the trial court's decision to grant special exceptions, which resulted in the striking of her pleadings after she did not amend her petition. In declining to find that Telegina has meritorious issues to present in an appeal, the trial court notes that her claims were dismissed after she declined to replead, but the court does not explain why Telegina could not present a non-frivolous argument that the trial court erred by sustaining Nechayuk's special exceptions. The trial court mentions that Nechayuk's claim for attorney's fees was the only issue before the jury, but the trial court does not explain why Telegina cannot in good faith challenge the award of attorney's fees in this case. On this record, we conclude Telegina has non-frivolous arguments that she may raise in her appeal.
We reverse the trial court's order requiring the appellant to pay costs. The record is due April 17, 2023.