Opinion
No. 05-17-00651-CV
07-12-2017
IN THE INTEREST OF A.R.M., A CHILD
On Appeal from the 330th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-13-09646
MEMORANDUM OPINION
Before Chief Justice Wright, Justice Lang-Miers, and Justice Stoddart
Opinion by Chief Justice Wright
Before the Court is Mother's challenge to the trial court's order sustaining the court reporter's contest to Mother's statement of inability to afford payment of court costs. See TEX. R. CIV. P. 145(g)(1). We reverse the order.
BACKGROUND
Mother filed the statement seeking to obtain without payment the appellate record of her divorce and parental rights termination proceedings. The appeal from those proceedings, which resulted in her rights to A.R.M. being terminated, is docketed as appellate cause number 05-17-00539-CV.
The trial court clerk did not challenge Mother's statement and has filed the clerk's record without payment of costs. Mother is also proceeding without payment of costs in this Court.
In her statement, Mother listed as dependents a sixteen-year old son and A.R.M. She stated she was a student and had no income other than $511 which she received in food stamps "pending appeal of termination of parental rights." She also stated she had no cash, bank accounts, or "other financial assets" and had outstanding debt exceeding $225,000 in legal fees. Her personal property consisted of jewelry, which she valued at $300, and she drove a car owned by her father. Her monthly expenses totaled $4240 and consisted in part of "rent/ house payments/maintenance" in the amount of $1350, "clothing and laundry" in the amount of $450, "transportation, auto repair, gas" in the amount of $400, and "school and child care" in the amount $90. The expenses were paid by her boyfriend. The statement reflected she was "financially eligible for [legal aid] representation, but the provider could not take [her] case."
The trial court's order followed a hearing on the court reporter's contest. The court reporter did not dispute at the hearing that Mother had no income because she was a student and did not work. She testified she contested Mother's statement because Mother had been represented at trial by retained counsel paid for by her father. The court reporter also questioned whether Mother's boyfriend could pay the fee for the record, which she testified would be $4800 "if it was a normal turnaround" and $9600 "if it was expedited[.]"
We question the reasonableness of the fee for an "expedited" turnaround when the Texas Rules of Appellate Procedure require the court reporter file the record in a termination case within ten days of the filing of the notice of appeal. See TEX. GOV'T CODE ANN. § 52.047 (West 2013) (providing for reporter fees); TEX. R. APP. P. 26.1(b) (setting deadline for notice of appeal in accelerated appeals); 28.1(a) (defining accelerated appeals); 28.4(b)(1) (requiring the court to direct the reporter to "immediately commence" preparation of record); 35.1(b) (setting deadline for record in accelerated appeal);
Mother testified her father had paid over $165,000 in legal fees for her, but he was no longer "financially supporting" her "in this litigation." In fact, she was being represented by pro bono counsel.
As for her boyfriend, he had earned $76,000 in the past year, but money was "tight." Asked if she could afford to pay for the record, Mother responded "no."
In sustaining the contest, the trial court found in part that Mother was not credible. The trial court also found specific portions of Mother's statements to be "inaccurate, false, and/or misleading," including her claims of $450 in clothing expenses, $90 in school and child care expenses, and $400 "for a vehicle she claims she does not own[.]" The trial court found "[t]he household earns $76,000 per year" and, "[b]ased upon the information provided for the Court's consideration, the . . . household has approximately $3,200.00 in disposable income."
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, the 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 party seeking to proceed without payment of costs fails to establish his inability to afford costs. See id. 145(f)(5). The trial court may order the party pay that part of the costs he can afford or pay in installments. See id. 145(f)(7). If the trial court orders the party to pay court costs, the court must support its order with "detailed findings that the [party] can afford to pay costs." See id. 145(f)(6). The central inquiry under rule 145 "is not merely whether [the party] can pay costs, but whether [he] can afford to pay costs" and still pay for "basic essentials, like housing or food." See id. 145, cmt. The party is not required to show family or friends are unable to pay the costs, and he is not expected to secure the necessary funds by depriving himself and his family of the necessities of life or borrowing money he cannot repay. See Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980) (orig. proceeding); Gofney v. Lowry, 554 S.W.2d 157, 159-60 (Tex. 1977) (orig. proceeding); Pinchback v. Hockless, 164 S.W.2d 19, 20 (Tex. 1942).
On appeal, the trial court's order to pay costs 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.). As the fact finder, the trial court is the sole judge of the credibility of the witnesses and evidence. In re A.R., 236 S.W.3d 460, 471 (Tex. App.—Dallas 2007, no pet.) (op. on reh'g). However, the trial court may not completely disregard the only evidence adduced at the hearing concerning the party's ability to pay costs. See Sansom v. Sprinkle, 799 S.W.2d 776, 778 (Tex. App.—Fort Worth 1990, orig. proceeding).
DISCUSSION
The trial court here found Mother to not be credible. As the fact finder, the trial court was required to evaluate Mother's credibility, and we cannot disturb that finding. See A.R., 236 S.W.3d at 471. However, the trial court was not free to disregard Mother's testimony that she had no income and could not afford the reporter's fee when no evidence was offered in rebuttal. See Sansom, 799 S.W.2d at 778. In fact, the basis for challenging Mother's statement of inability to pay costs was not that she personally had the funds to pay, but that her father had paid for counsel at trial and her boyfriend paid her living expenses. Yet, in establishing her inability to afford costs, Mother had no burden to show her family or friends were unable to pay costs. See Gofney, 554 S.W.2d at 160.
On the record before us, we conclude the trial court abused its discretion in sustaining the reporter's contest and reverse the trial court's order. The reporter's record shall be prepared without payment of costs.
/Carolyn Wright/
CAROLYN WRIGHT
CHIEF JUSTICE 170651F.P05
JUDGMENT
On Appeal from the 330th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-13-09646.
Opinion delivered by Chief Justice Wright. Justice Lang-Miers and Justice Stoddart participating.
In accordance with this Court's opinion of this date, the trial court's order sustaining contest is REVERSED. The reporter's record shall be prepared without payment of costs and filed in appellate cause number 05-17-00539-CV. Judgment entered July 12, 2017.