Opinion
14-22-00521-CV
11-15-2022
CHRISTOPHER TROY BUSHLOW, Appellant v. KIMBERLY TRICKETT BUSHLOW, Appellee
On Appeal from the 231st District Court Tarrant County, Texas Trial Court Cause No. 231-633972-18
Panel Consists of Justices Spain, Poissant, and Wilson.
ORDER
PER CURIAM
Appellant appeals from a post-divorce order dividing undivided assets, signed March 31, 2022.
The Supreme Court of Texas ordered the Court of Appeals for the Second District of Texas to transfer this case (02-22-230-CV) to this court. Misc. Docket No. 22-9050 (Tex. June 30, 2022).
Appellant filed his notice of appeal on June 14, 2022. On June 29, 2022, the clerk's record was filed. On July 29, 2022, appellant filed a motion for a free reporter's record on appeal. On August 11, 2022, this court ordered the Tarrant County District Clerk and the court reporter for the 231st District Court of Tarrant County, Texas, to prepare and file the record of all trial court proceedings on appellant's claim of indigence. See Tex. R. Civ. P. 145(g)(3). The clerk's record concerning appellant's indigency status was filed August 23, 2022; the reporter's record was filed August 25, 2022.
Those records reflected the trial court denied appellant's request for a free reporter's record on July 20, 2022. Because the requirements of Rule 145(f) were not satisfied, on September 13, 2022, we ordered the trial court to conduct an evidentiary hearing after giving ten (10) days' notice to the parties, and file with the clerk of this court the clerk's and reporter's records of the hearing and a copy of any order signed as a result of the hearing.
The supplemental clerk's record filed October 6, 2022, reflects the trial court signed an order denying appellant's motion for a free reporter's record. The record also contains the trial court's detailed findings. See Tex. R. Civ. P. 145(f)(6).
The following is a summary of the trial court's findings:
The Court, makes the following findings after a full evidentiary hearing:
1.That CHRISTOPHER TROY BUSHLOW is fully employed with Envoy Air, Inc. of Irving, Texas.
2.He has been fully employed for a period in excess of two (2) years.
3.His pay rate is $14.57 per hour and he occasionally gets overtime.
4.Prior the date of October 5, 2022, he had grossed $12,395.37 with Envoy Air.
5. CHRISTOPHER TROY BUSHLOW is married to RHONDA DRAPPER.
6. CHRISTOPHER TROY BUSHLOW and RHONDA DRAPPER own property together in Mexico.
7. CHRISTOPHER TROY BUSHLOW lives in RHONDA DRAPPER's residence at . . .
8. CHRISTOPHER TROY BUSHLOW and RHONDA DRAPPER have been married since February 9, 2020.
9. CHRISTOPHER TROY BUSHLOW testified that he has been paying $400 a month rent to his wife, RHONDA DRAPPER, for 2½ years.
10.CHRISTOPHER TROY BUSHLOW has taken several trips since February 9, 2020, including the following: March 2022; March 2021; November 2021. All these trips involved leisure or vacation trips to Cabo San Lucas.
11.CHRISTOPHER TROY BUSHLOW recently took a vacation trip to Colorado for four (4) days.
12. CHRISTOPHER TROY BUSHLOW and RHONDA DRAPPER own community property together to-wit: A condominium unit in Cabo San Lucas, Mexico.
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 using an abuse-of-discretion standard. See Arevalo v. Millan, 983 S.W.2d 803, 804 (Tex. App.-Houston [1st Dist.] 1998, no pet.). In deciding whether the declarant is unable to afford to pay court costs, the test is whether the declarant proved either that he receives public assistance, is being assisted pro bono by counsel, or is unable to afford the payment of court costs. See Tex. R. Civ. P. 145(e). We may find an abuse of discretion by the trial court only if the trial court's ruling is "so arbitrary and unreasonable as to be clearly wrong." Arevalo, 983 S.W.2d at 804. Although a trial court may evaluate the declarant's credibility, the court may not disregard evidence establishing the declarant's inability to afford to pay court costs, particularly when that evidence is not rebutted. Koehne v. Koehne, 01-17-00016-CV, 2017 WL 2375789, at *2 (Tex. App.-Houston [1st Dist.] June 1, 2017, published order).
The evidence supports the trial court's findings set forth above. In addition, there was no evidence that appellant receives public assistance. There was also evidence appellant has paid his attorney over $7,000.
Accordingly, we find the trial court did not abuse its discretion in denying appellant's request to proceed without the payment of costs. Appellant is directed to pay or make arrangements to pay for the reporter's record in this appeal. See Tex. R. App. P. 35.3(a)(2). Unless appellant provides this court with proof of payment for the record within fifteen days of the date of this order, we may consider and decide those issues or points that do not require a reporter's record. See Tex. R. App. P. 37.3(c).