Opinion
04-23-00840-CV
02-07-2024
IN THE INTEREST OF P.M.M., a Child
From the 166th Judicial District Court, Bexar County, Texas Trial Court No. 2021-CI-21699 Honorable Walden Shelton, Judge Presiding
The Honorable Walden Shelton, presiding judge of the 166th Judicial District Court, signed the final judgment in the underlying suit affecting the parent-child relationship. However, the Honorable Antonia Arteaga, presiding judge of the 57th Judicial District Court, signed the order addressed by this opinion.
Sitting: Irene Rios, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice
MEMORANDUM OPINION
PER CURIAM
AFFIRMED AS TO ORDER ON APPELLANT'S ABILITY TO PAY COSTS
Appellant J.E.M. challenges the trial court's order concluding that he can afford to pay court costs. We affirm the trial court's order.
To protect the privacy of the minor child involved in this appeal, we use initials to refer to the child and her parents.
Background
J.E.M. and appellee D.E.F. are the parents of P.M.M. The underlying dispute in this case, which was filed in 2021, is a suit affecting the parent-child relationship. Appellant's appeal of the final SAPCR judgment is not addressed by this opinion and remains pending in this court.
On January 20, 2022, J.E.M. filed a Statement of Inability to Afford Payment of Court Costs or an Appeal Bond in the underlying SAPCR. On April 5, 2023, D.E.F. filed a motion challenging J.E.M.'s claim of indigence. In her motion, D.E.F. also sought sanctions and attorney's fees.
On April 18, 2023, the trial court held a hearing at which J.E.M. and D.E.F. appeared and presented evidence. After considering the evidence, the trial court signed a May 2, 2023 order sustaining D.E.F.'s motion and concluding J.E.M. "has the ability to pay costs[.]" The trial court's order contained detailed findings of fact in support of its conclusion. The trial court also expressly held D.E.F.'s claims for sanctions and attorney's fees in abeyance.
The appendix of J.E.M.'s brief in support of his challenge to the trial court's order includes a June 29, 2023 "Amended Order on Motion to Dissolve the Statement of Inability to Afford Payment of Court Cost or an Appeal Bond and Motion for Rule 13 Sanctions." This amended order is not included in the appellate record. To the extent that the amended order is necessary to bring J.E.M.'s motion within the ten-day deadline imposed by Texas Rule of Civil Procedure 145(g)(2), we conclude we may consider it as "necessary to ascertain matters essential to the exercise of appellate jurisdiction[.]" Jay Kay Bear Ltd. v. Martin, No. 04-14-00579-CV, 2015 WL 6736776, at *5 (Tex. App.- San Antonio Nov. 4, 2015, no pet.) (mem. op.); see also Tex. R. Civ. P. 145(g)(2). We note, however, that the amended order is substantively identical to the May 2, 2023 order.
In his brief, J.E.M. argues that "ordering [him] to pay attorney fees would be unjust and further exacerbate [his] financial hardship." Because the order at issue here does not require J.E.M. to pay attorney's fees, we do not consider this argument.
On May 26, 2023, J.E.M.-appearing to rely on Texas Rule of Civil Procedure 145(g)- filed a notice of appeal in Cause Number 04-23-00552-CV that sought to challenge the trial court's May 2, 2023 order dissolving his statement of inability to pay costs. At that time, the trial court had not yet signed a final judgment in the underlying SAPCR proceeding.
On June 5 and 6, 2023, the appellate record of the proceedings on J.E.M.'s claim of indigency was filed in this court. On June 16, 2023, the trial court signed a final order in the underlying SAPCR proceeding. On September 6, 2023, J.E.M. filed a brief in Cause Number 04-23-00552-CV in support of his challenge to the trial court's order. On September 13, 2023, J.E.M. filed a notice of appeal from the SAPCR final judgment, and that appeal was docketed under this cause number.
On December 27, 2023, this court issued a memorandum opinion and order in Cause Number 04-23-00552-CV, in which we concluded that Texas Rule of Civil Procedure 145(g) did not authorize an independent interlocutory appeal from an order requiring an appellant to pay costs of court. See In re P.M.M., No. 04-23-00552-CV, 2023 WL 8896898, at *1 (Tex. App.-San Antonio Dec. 27, 2023, no pet. h.) (mem. op.) (per curiam); see also Tex. R. Civ. P. 145(g). Accordingly, we dismissed Cause Number 04-23-00552-CV for want of jurisdiction. See In re P.M.M., 2023 WL 8896898, at *1. However, because Rule 145(g) permits the filing of a motion "in the court of appeals with jurisdiction over an appeal from the judgment in the case," we also ordered the clerk of this court to transfer the records of Cause Number 04-23-00552-CV into this appeal from the underlying SAPCR judgment. Id. (quoting Tex.R.Civ.P. 145(g)).
Analysis
Standard of Review
We review a trial court's ruling on a claim of inability to pay costs for abuse of discretion. See Rodriguez v. H-E-B, No. 04-19-00795-CV, 2020 WL 354766, at *2 (Tex. App.-San Antonio Jan. 22, 2020, no pet.) (mem. op.) (per curiam); In re J.P.N., No. 04-17-00633-CV, 2018 WL 626526, at *1 (Tex. App.-San Antonio Jan. 31, 2018, no pet.) (mem. op.). A trial court does not abuse its discretion unless its ruling is arbitrary, unreasonable, or made without reference to guiding rules or principles. See Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 526 (Tex. 1998); White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.-San Antonio 2001, pet. denied) (per curiam). "An abuse of discretion does not exist where the trial court bases its decisions on conflicting evidence." Kepple, 970 S.W.2d at 526 (internal quotation marks omitted).
Applicable Law
"A party who cannot afford payment of court costs must file the Statement of Inability to Afford Payment of Court Costs approved by the Supreme Court or another sworn document containing the same information." Tex.R.Civ.P. 145(b). The district clerk, a court reporter, or an opposing party may file a motion in the trial court to challenge the declarant's claim of indigency. Tex.R.Civ.P. 145(e). If a motion challenging the declarant's claim of indigency is filed, "the declarant must not be ordered to pay costs" unless: (1) the trial courts holds "an oral evidentiary hearing"; (2) the declarant receives at least "10 days' notice of the hearing"; and (3) the trial court makes "detailed findings that the declarant can afford to pay costs." Tex.R.Civ.P. 145(f)(1), (2).
"At the hearing, the burden is on the declarant to prove the inability to afford costs." Tex.R.Civ.P. 145(f)(1). "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 applicant would be unable to pay the costs, or a part thereof, or give security therefor, if he really wanted to and made a good-faith effort to do so." Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. App.-San Antonio 2009, no pet.) (per curiam).
Application
During the hearing on D.E.F.'s challenge to J.E.M.'s claim of indigence, the trial court heard testimony from seven witnesses and admitted nine exhibits into evidence. The bulk of the evidence focused on whether and when J.E.M. was entitled to collect funds from the estate of his deceased father.
The dependent administrator of the estate testified that under the terms of a mediated settlement agreement, J.E.M. was entitled to collect 7.5% of the value of his father's estate. The dependent administrator also testified that the estate had sold some, but not all, of its assets and distributed funds to some of the heirs. An attorney who represented J.E.M.'s siblings in the probate proceeding, a separate attorney who represented J.E.M.'s stepmother, and the dependent administrator all testified while J.E.M. had not yet signed the MSA, he was entitled to receive approximately $52,000 immediately upon signing it. J.E.M.'s stepmother's attorney further testified that J.E.M. was entitled to receive that money when he filed his affidavit of indigence in June of 2022.
The dependent administrator testified that the estate was still in possession of "two tracts of real property which are under contracts for sale with a combined gross amount in excess of $3,500,000[.]" Because the sale of those assets had not yet closed, those funds were not immediately available for distribution to J.E.M. and other heirs. However, the trial court heard evidence that the sales of those properties were in progress and were nearly completed. The attorney for J.E.M.'s siblings testified that J.E.M. will eventually receive between $220,000 and $235,000 from the estate.
J.E.M. did not dispute the other witnesses' testimony that he was entitled to an immediate distribution of $52,071.02 as soon as he signed the MSA. He testified, however, that because he was not represented by an attorney in the probate proceeding, he did not know that until the day of the hearing at issue here. He also testified he had not yet signed the MSA because he believed he had "legal options that [he] will be weighing, and [he] can't say when that's going to happen." The evidence showed, however, that he had signed a previous MSA that entitled him to receive the same 7.5 percent share. The evidence further showed that a Guadalupe County judge had previously denied J.E.M.'s challenge to the distribution of the estate.
It is undisputed that at the time of the hearing at issue here, J.E.M. had not actually received any money from the estate. Additionally, J.E.M. testified he was "in a massive amount of debt," had "been struggling to pay rent," and was "scraping together whatever work [he] can find." He also presented bank statements showing that as of March 31, 2023, he had less than twenty dollars in his personal bank account. Finally, J.E.M. testified that his claim of indigency had been considered and accepted in three previous hearings. He conceded, however, that he testified during those hearings that he had been "cut out of a will" and that he did not tell the judges in those hearings that he was entitled to a share of his father's estate.
In this court, J.E.M. argues he cannot be bound by the MSA in his father's probate proceeding because he did not sign it. We note that J.E.M. did not raise this argument in the trial court and therefore did not preserve it for our review. Tex.R.App.P. 33.1. Furthermore, the question before this court is not whether an MSA in a separate proceeding is legally binding on J.E.M. Instead, the question we must resolve "is whether the record as a whole shows by a preponderance of the evidence that [J.E.M.] would be unable to pay the costs, or a part thereof, or give security therefor, if he really wanted to and made a good-faith effort to do so." Basaldua, 298 S.W.3d at 241 (emphasis added). Based on the evidence described above, the trial court did not abuse its discretion by concluding J.E.M. did not satisfy his burden to show he could not afford to pay court costs. See id.; Tex.R.Civ.P. 145(f)(1); see also White, 40 S.W.3d at 576 ("Certainly, failing to pursue and use assets that could be used to provide funds for paying for the appellate record evidences the opposite of a good-faith effort.").
Conclusion
We affirm the trial court's order concluding that J.E.M. can afford to pay costs of court.