Opinion
No. 01-03-00679-CV
Opinion issued July 1, 2004.
On Appeal from the 245th District Court, Harris County, Texas, Trial Court Cause No. 2002-28148.
Christine R. Thrash and Richard Joseph Tholstrup, Houston, TX, for appellant.
Dale F. Carrington, Housto, TX, for appellee.
Panel consists of Justices TAFT, JENNINGS, and HANKS.
MEMORANDUM OPINION
Appellant, J.A., appeals the denial of retroactive child support from appellee, Grady Eugene Blount, after the court had declared Blount to be J.A.'s father and had established the parent-child relationship between Blount and J.A. for all purposes. We determine whether, in the absence of a reporter's record, J.A. can show that the trial abused its discretion in this ruling. Answering the question in the negative, we affirm.
Facts
Because the parties waived a record of the hearing at which the trial court adjudicated paternity and the request for retroactive child support, the following background information comes from the parties' pleadings or from relevant trial court orders.
When J.A. was 17, she brought a paternity suit against Blount, seeking establishment of the parent-child relationship and retroactive child support. In a pretrial filing, Blount stipulated that Susan Clifton was J.A.'s biological mother, that Clifton was divorced from Michael Anderson in 1991, and that Clifton and Anderson's divorce decree recited that the divorce court had adjudicated Anderson to be J.A.'s father. The divorce decree, which Blount attached to a submission below, recited that, pursuant to Clifton and Anderson's agreement, Anderson was not ordered to pay child support to Clifton. Blount further stipulated that he had "been found to be the biological father of [J.A.]."
Upon trial to the court, the court declared Blount to be J.A.'s father, but denied J.A.'s request for retroactive child support. J.A. was 18 years old when the trial court rendered its order.
Blount's pleadings assert that Clifton had executed a written assignment of her child-support rights against Blount to J.A. Given our disposition, we need not reach Blount's argument on appeal that the assignment was ineffective to transfer whatever rights Clifton had concerning child support to J.A. Neither, given our disposition, need we address Blount's related argument — which presumes that Clifton's assignment to J.A. was ineffective — that J.A. had no independent right to seek retroactive child support. Rather, for purposes of our discussion, we assume without deciding that these grounds would not bar J.A.'s suit.
Standard of Review
We review the trial court's denial of a request for retroactive child support for an abuse of discretion. Garza v. Blanton, 55 S.W.3d 708, 709, 710 (Tex. App.-Corpus Christi 2001, no pet.); see Tex. Fam. Code Ann. § 154.009(a) (Vernon 2002) ("The court may order a parent to pay retroactive child support. . . .") (emphasis added); id. § 154.131(a) (Vernon 2002) ("The child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered.") (emphasis added); id. § 160.636(g) (Vernon 2002) ("On a finding of parentage, a court may order retroactive child support. . . .") (emphasis added).
Denial of Retroactive Child Support
In her sole point of error, J.A. contends that the trial court abused its discretion by denying retroactive child support after having declared Blount to be her father.
The Family Code gives the trial court discretion to determine whether to award retroactive child support when paternity is established; the award is not mandatory. Garza, 55 S.W.3d at 709; see Tex. Fam. Code Ann. §§ 154.009(a), 154.131(a), 160.636(g). In determining whether to award retroactive child support after establishing the parent-child relationship, the court "must consider the guidelines found in [Family Code] Chapter 154, as well as any other relevant factors, in determining the amount of retroactive child support." Garza, 55 S.W.3d at 708-09; see Tex. Fam. Code Ann. §§ 154.009(b), 160.636(g). Section 154.131 sets out the guidelines for retroactive support in relevant part as follows:
§ 154.131 Retroactive Child Support
(a) The child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered.
(b) In ordering retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:
(1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;
(2) the obligor had knowledge of his paternity or probable paternity;
(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor's family; and
(4) the obligor has provided actual support or other necessaries before the filing of the action.
Tex. Fam. Code Ann. § 154.131(a)-(b). Section 154.131's guidelines are evidentiary determinations. See, e.g., Garza, 55 S.W.3d at 709 ("Retroactive child support is not mandated by the Texas Family Code when paternity is established, but rather, is left to a factual determination on the part of the trial judge.") (emphasis added).
J.A.'s appellate challenge is based on the trial court's alleged abuse of discretion in making factual determinations relative to the award of retroactive child support. See Tex. Fam. Code Ann. § 154.131(b) (establishing guidelines for determining retroactive child support, all of which are factual determinations). Assessing whether the trial court abused its discretion in this particular context — when it had to consider evidence relating to statutory criteria — requires a review of the evidence presented. See Landon v. Jean-Paul Budinger, Inc., 724 S.W.2d 931, 938 (Tex. App.-Austin 1987, no writ) ("Whether the trial court acted rationally or irrationally, in a legal sense, may only be appraised in reference to the factual context in which the court acted in making its choice between possible alternative rulings. In some cases, the factual context might of necessity require the compilation of an evidentiary record in a special inquiry. . . .") (citations omitted).
`For example, J.A. argues that the trial court was "not allowed to arbitrarily disregard the facts which clearly support an award of support, to wit: (a) the Appellee was adjudicated the father of appellant; (b) the parent-child relationship has been established; (c) the Appellee has never been ordered to pay support; (d) the Appellee was clearly aware of his paternal obligations; (e) it would not be an undue hardship on Appellee; (f) the Appellant clearly has a statutory right to receive retroactive child support; and (g) the Appellee did not present any evidence to the trial court in opposition thereto." (Emphasis added.)
However, the parties waived a record of the hearing at which they would have introduced evidence relevant to the child-support guidelines. The paternity order recites that the trial court considered evidence at that hearing. Because we lack any record of the evidence that the trial court considered in determining not to award retroactive child support, we cannot determine whether the trial court abused its discretion in that determination, and we must in fact presume that the court had adequate evidence before it to justify its decision. See, e.g, In re J.W., 97 S.W.3d 818, 825 (Tex. App.-Dallas 2003, pet. denied) (in suit to establish paternity and for retroactive child support, holding, "J.W. . . . argues the trial court abused its discretion by awarding retroactive child support only to January 1, 2000. . . . [T]here is no record of the evidence presented as to the child support portion of this order. Thus, J.W. has presented nothing for us to review . . . regarding his claim for additional retroactive child support."); see also Protechnics Int'l, Inc. v. Tru-Tag Sys., Inc., 843 S.W.2d 734, 735 (Tex. App.-Houston [14th Dist.] 1992, no writ) ("Protechnics asks the court to rule on evidentiary matters. Protechnics failed to timely file a statement of facts. In the absence of a statement of facts, a presumption is created that the evidence supports the finding. Without a statement of facts, we may only review errors apparent on the face of the pleadings, the verdict, the findings, if any, the judgment, and the bills of exceptions.") (citations omitted).
The paternity decree recited that the court "examin[ed] the record and hear[d] the evidence and argument of counsel." The order also recited that J.A. appeared through her attorney and announced ready for trial and that Blount had "made a general appearance" and had "agreed to the terms of this order." The order further recited that "[t]he making of a record of testimony was waived by the parties with the consent of the Court."
Because we have no record of the evidence that the trial court considered relative to statutory guidelines that were clearly factual in nature, we cannot assess whether the court abused its discretion. Accordingly, we overrule appellant's sole issue.
Conclusion
We affirm the judgment of the trial court.