Opinion
14-22-00663-CV
06-01-2023
DANIEL WARREN BREEDEN, APPELLANT v. DIANA KRISTINE SUIRE, APPELLEE
On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 2017-79069
Panel Consists of Justices Wise, Bourliot, and Spain.
ORDER
PER CURIAM
Appellant appeals from an order in a suit to modify a parent-child relationship signed August 30, 2022. See Tex. Fam. Code Ann. § 156.001. Appellant filed a notice of appeal on September 14, 2022. On October 4, 2022, appellant filed a statement of inability to afford payment of court costs in the trial court.
The court reporter filed a contest to appellant's statement. A hearing was held on December 28, 2022, and the trial court signed an order sustaining the contest and ordering appellant to pay costs.
A declarant who files a statement of inability to afford payment of court costs may be required to prove the inability to afford payment of costs at an evidentiary hearing, but the declarant may not be required to pay court costs unless the trial court holds an evidentiary hearing, with proper notice given to the declarant. See Tex.R.Civ.P. 145(f)(1). If the trial court determines that the declarant can afford to pay court costs, the trial court must issue an order containing detailed findings. See Tex.R.Civ.P. 145(f)(2). Absent a challenge, a trial court order that the declarant can afford to pay court costs also controls the costs on appeal unless the declarant files a motion in the appellate court alleging a material change in circumstances. See Tex.R.App.P. 20.1(b)(3).
The declarant may challenge a ruling that the declarant can afford to pay court costs by timely filing a motion in the appellate court. See Tex.R.Civ.P. 145(g)(1). Once an declarant appeals from a trial court's order finding declarant can afford to pay costs, the trial court clerk and court reporter must prepare at no charge a record of all proceedings regarding the declarant's claim of indigence. Tex.R.Civ.P. 145(g)(3).
Appellant filed a motion challenging the trial court's order under Rule 145(g)(1). Because the trial court's order contained no findings, we issued an order on April 11, 2023, requesting the preparation of detailed findings as required by Rule 145(f)(2). A supplemental clerk's record was filed on April 24, 2023, containing the trial court's April 19, 2023 findings.
The following is a summary of the trial court's findings:
• Appellant did not appear at the hearing and did not produce any evidence supporting his statement of inability to afford payment of court costs.
• Appellant has retained and paid for a private attorney on appeal. • Appellant made no payment plan with the court reporter when the option was offered to him.
• The court reporter testified as to appellant's assets and financial status as disclosed during the underlying child custody proceeding.
Based on these findings, the trial court concluded that appellant was not indigent for purposes of receiving a free reporter's record.
We review a trial court's order sustaining a contest to a statement of inability to afford payment of court costs using an abuse-of-discretion standard. See Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.-San Antonio 2009, no pet.). In the trial court, the test for determining indigence is whether the record as a whole shows by a preponderance of the evidence that the declarant would be unable to pay the costs, or a part thereof, or give security therefor, if declarant really wanted to and made a good-faith effort to do so. Id. When a contest is filed, the declarant bears the burden to prove the declarant's indigence by a preponderance of the evidence. Higgins v. Randall Cnty. Sheriff's Office, 257 S.W.3d 684, 686 (Tex. 2008).
There was no evidence presented at the hearing that appellant is unable to afford payment for the record. The only evidence supporting appellant's claim is his statement of inability to afford payment of court costs itself. Appellant's statement indicated that he was not represented by legal aid and did not apply for such representation. In his statement, appellant noted that although he does not currently receive public benefits, he is "in the process of seeking disability due to Covid-19 post-acute injury which has prevented me from working." He further indicated that he has $1,100 in assets and $4,040 in monthly expenses. He explained that his family is currently paying all his expenses and providing him with a home.
The court reporter testified that the record would cost approximately $15,000 and that she was willing to provide appellant with a payment plan. She explained that she informed appellant she would need $7,500 upfront and never heard back from him. She further testified that during the underlying custody dispute appellant never mentioned that he was experiencing a financial hardship. However, on cross-examination, she confirmed that she recalled appellant testifying that he was suffering from long Covid and unable to work. The court reporter confirmed that appellant had not submitted any evidence that he had applied for loans to pay for the record. Nor did appellant provide affidavits from family or friends regarding his finances.
On this record, we conclude that the trial court did not abuse its discretion by finding appellant did not carry his burden under Rule 145. See Emerson v. Holly Lake Ranch Assoc., 603 S.W.3d 172, 178 (Tex. App.-Texarkana 2020, no pet.); Sab v. Hawkins-Sab, 511 S.W.3d 290, 294 (Tex. App.-San Antonio 2016, no pet.). Therefore, appellant is directed to pay or make arrangements to pay for the record in this appeal. See Tex.R.App.P. 35.3(b)(3). Unless appellant provides this court with proof of payment for the record within fifteen days of the date of this order, we will consider and decide those issues or points that do not require a reporter's record for a decision. See Tex.R.App.P. 37.3(c)(2)(B).