Aurelio Sotelo Flores v. Letisia Cuevas

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Opinion issued March 1, 2007

























In The

Court of Appeals

For The

First District of Texas



NO. 01-06-00257-CV

____________



AURELIO SOTELO FLORES, Appellant



V.



LETISIA CUEVAS, Appellee



On Appeal from the 245th District Court

Harris County, Texas

Trial Court Cause No. 2005-43269



MEMORANDUM OPINION

In this restricted appeal, appellant, Aurelio Sotelo Flores, challenges the trial court's "order establishing the parent relationship." In four issues, Flores contends that he is "entitled to review by restricted appeal"; there is "no evidence or, alternatively, insufficient evidence to support the relief granted"; "the child support order failed to reduce the child support as each child reached [the] age of eighteen"; and appellee, Letisia Cuevas, the mother of the minor children, "failed to provide notice of her petition for relief to a necessary party, the Texas Attorney General's office, as assignee of her support right."

We affirm in part and reverse and remand in part.

Factual and Procedural Background

Cuevas filed a "petition to establish the parent-child relationship," seeking a determination that Flores is the father of her minor children, Z.F.C. and R.F.C., and an order for "appropriate current, retroactive, and medical child support for the children." Although Flores was served, he failed to file an answer. During a default judgment hearing, Cuevas testified that Flores is the father of her minor children, Z.F.C. and R.F.C., the birthdates of Z.F.C. and R.F.C. are February 17, 2000 and July 19, 2002 respectively, and she did not have sexual intercourse with anyone other than Flores "during either the 90-day period before, during, and after the conception" of Z.F.C. and R.F.C. Cuevas also testified that Flores had never lived with, supported, or visited the children. Cuevas stated that she had knowledge regarding Flores's earnings, which were $3,700 per week. Cuevas asked the trial court to order Flores to pay child support for both children "in accordance with the established guidelines" and retroactive child support for the preceding four years for Z.F.C. and the preceding three years for R.F.C. "based on his income."

On September 19, 2005, the trial court signed an "order establishing the parent relationship," finding Flores to be the children's biological father and ordering Flores to pay prospective (1) and retroactive child support. Specifically, the trial court ordered Flores to pay prospective child support in the amount of $900 per month until the earliest occurrence of a number of events, such as "the children reach[ing] the age of eighteen years." The trial court also ordered Flores to pay "retroactive child support" in the amount of $39,084, to be paid in the form of an additional monthly payment.

Restricted Appeal

To attack a judgment by a restricted appeal, the appeal must be filed (1) within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who, either in person or through counsel, did not participate at trial; and (4) the error must be apparent from the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Barry v. Barry, 193 S.W.3d 72, 74 (Tex. App.--Houston [1st Dist.] 2006, no pet). The face of the record consists of all the papers on file in the appeal, including any reporter's record. Osteen v. Osteen, 38 S.W.3d 809, 813 (Tex. App.--Houston [14th Dist.] 2001, no pet.). Here, the parties dispute only the timeliness of the restricted appeal and the appearance of error on the face of the record. (2)

Paternity

In his first and second issues, Flores argues that there is no evidence, or insufficient evidence, to establish paternity because the evidence "fails to negate the existence of a presumed father." The Texas Family Code specifically provides that a "court shall issue an order adjudicating the paternity of a man who: (1) after service of process, is in default; and (2) is found by the court to be the father of a child." See Tex. Fam. Code Ann. § 160.634 (Vernon 2002).

Here, the record indicates that Flores failed to timely file an answer and, pursuant to section 160.634, the trial court found him to be the father of the children. Id. The trial court's finding was based on Cuevas's uncontroverted testimony that Flores was the father of both children and that she did not have sexual intercourse with anyone other than Flores "during either the 90-day period before, during, and after the conception" of both children. Although section 160.204 provides presumptions of paternity, including presumptions arising in the context of marriage and residency, there is no evidence in the record that Cuevas was married at or around the time she conceived or gave birth to the children or that another man resided in the same household as the children during the first two years of their lives. See id. § 160.204(a) (Vernon Supp. 2006). Thus, the presumptions do not apply, and Cuevas was not required to present evidence "negating the existence" of a presumed father. (3) Cuevas's testimony that Flores is the father and that she did not have sexual intercourse with anyone else but Flores during the 90-day period before and after the conception of the children is sufficient to support the trial court's finding that Flores is the father. Accordingly, we hold that Flores has failed to show error on the face of the record with respect to the paternity findings.

We overrule Flores's first and second issues to the extent they pertain to the paternity findings.

Child Support

Flores also contends in his first and second issues that there is no evidence, or insufficient evidence, to support the trial court's awards for child support. In regard to the prospective child support award, Flores argues that the evidence used to establish his net resources is insufficient because Cuevas failed to "state the basis of her knowledge," the trial court did not make "appropriate deductions," and there is no evidence as to whether his earnings were a "a gross or net amount." Thus, Flores asserts that the trial court was required to set child support on the "federal minimum wage" presumption. Flores reasons that by failing to apply this presumption, the trial court awarded child support in excess of the Family Code's guidelines without making the statutorily required findings and that the trial court provided Cuevas "substantially more relief" than she requested. Flores argues that the evidence is also insufficient to support the award for retroactive child support because the court failed to consider his net resources "during the relevant time period" and other additional factors, as required by the Family Code.

We review a trial court's order granting child support under an abuse of discretion standard. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.--Houston [14th Dist.] 2004, no pet.). A trial court abuses it discretion when it acts arbitrarily or without reference to guiding principles. Worford, 801 S.W.2d at 109. Under this standard, legal and factual sufficiency of the evidence are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion. Newberry, 146 S.W.3d at 235. A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support the trial court's order. Id.

In regard to the prospective child support award, section 154.062 of the Family Code provides that a court "shall calculate net resources for the purpose of determining child support liability as provided by this section." See Tex. Fam. Code Ann. § 154.062(a) (Vernon 2002). "Resources" are defined to include, among other things, "100 percent of all wage and salary income and other compensation for personal services." Id. § 154.062(b)(1) (Vernon 2002). "There must be some evidence of a substantive and probative character of net resources" in order for the trial court to discharge its duty under section 154.062. Newberry, 146 S.W.3d at 236. Here, Cuevas testified, based on her personal knowledge, that Flores earns $3,700 per week. Cuevas's testimony was uncontroverted, and provided some evidence to support the trial court's implied findings on Flores's net resources for purposes of determining prospective child support. See id. (affirming child support award when mother's testimony provided "only evidence" of father's income); Wilemon v. Wilemon, 930 S.W.2d 290, 294-95 (Tex. App.--Waco 1996, no pet.) (affirming child support award on basis of mother's testimony regarding father's monthly earnings, and rejecting argument that mother was required to furnish tax returns, wage stubs, and financial statements of father's net resources). Consequently, the trial court was not required to presume that Flores had wages or salary equal to the federal minimum wage. See Tex. Fam. Code Ann. § 154.068 (Vernon 2002) ("In the absence of evidence of the wage and salary income of a party, the court shall presume that the party has wages or salary equal to the federal minimum wage for a 40-hour week."). Cuevas's testimony establishes Flores's annual income to be $192,400, and his monthly income to be approximately $16,000. See id. § 154.061 (Vernon Supp. 2006) ("gross income should first be computed on an annual basis and then should be recalculated to determine average monthly gross income"). Using the tax charts found in section 154.061 of the Family Code to compute net income, the trial court could have properly found Flores's net monthly income to exceed $10,000. (4) See id. The Family Code provides that when an obligor's net resources exceed $6,000 per month, the court is to apply the presumptive percentage guidelines set forth in section 154.125 to the first $6,000. Id. § 154.126 (Vernon 2002). Section 154.125 provides that child support should equal twenty-five percent of the obligor's net resources when there are two children, as there are here. Id. § 154.125 (Vernon 2002). Therefore, the trial court was authorized to order appellant to pay child support of $1,500 per month. Here, the prospective child support award of $900 per month did not exceed the guidelines. Thus, contrary to Flores's complaints, the trial court did not abuse its discretion in awarding an amount "in excess" of the guidelines or by granting Cuevas "substantially more relief" than she requested. Accordingly, we hold that Flores has failed to show error on the face of the record with respect to the prospective child support award. (5)

In regard to the retroactive child support award, section 154.009 of the Family Code provides that a "court may order a parent to pay retroactive child support if the parent: (1) has not previously been ordered to pay support for the child; and (2) was not a party to a suit in which support was ordered." Id. § 154.009(a) (Vernon 2002). This section further provides that "[i]n ordering retroactive child support, the court shall apply the child support guidelines provided by this chapter." Id. § 154.009(b) (Vernon 2002); see also 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."). Section 154.131(b) provides that "[i]n ordering retroactive child support, the court shall consider the net resources of the obligor during the relevant time period . . . ." Id. § 154.131(b) (Vernon 2002) (emphasis added). (6)

Here, Cuevas testified only regarding Flores's present earnings. Cuevas offered no evidence regarding Flores's earnings during "the relevant time period" for which she sought retroactive child support. We recognize that compliance with the guidelines regarding the award of retroactive child support is not mandatory. See In re Sanders, 159 S.W.3d 797, 801 (Tex. App.--Amarillo 2005, no pet.). Also, courts may calculate net resources on "imprecise information." See In re J.C.K.,143 S.W.3d 131, 139 (Tex. App.--Waco 2004, no pet.). However, section 154.131 plainly states that a trial court must at least "consider" the "net resources" of the father "during the relevant time period." Tex. Fam. Code Ann. § 154.131(b) (Vernon 2002). In this case, there is no evidence pertaining to the relevant time period. In the absence of such evidence, the trial court should have presumed that Flores had wages or salary during the relevant time period equal to the federal minimum wage for a 40-hour week. Id. § 154.068 (Vernon 2002); see In re M.M., 980 S.W.2d 699, 700 (Tex. App.--San Antonio 1998, no pet.) (applying minimum wage presumption to retroactive child support award).

Applying the federal minimum wage, which at the time was $5.15, (7) Flores's gross annual income would have been $10,712, his gross monthly wage would have been approximately $892, and his net monthly income would have been approximately $805. See Tex. Fam. Code Ann. § 154.061(a), (b). Cuevas requested retroactive child support for the preceding four years for Z.F.C. and the preceding three years for R.F.C. Flores's monthly child support obligation, for the first year in which he had only one child, would have been 20% of his net resources, or $161.11. See id. § 154.125(b) (Vernon 2002). For the remaining three years, Flores's monthly child support obligation, in which he had two children, would have been 25% of his net resources, or $201.38. See id. Thus, the trial court would have been authorized to award retroactive child support, pursuant to Cuevas's request, in the amount of $9,183.04. The trial court appears to have awarded Cuevas retroactive child support in the amount of $39,084 based solely on evidence of Flores's present earnings, without any evidence of his earnings during any relevant time period or evidence on the other relevant factors. Id. § 154.131(b). The trial court abused its discretion in doing so, and we hold that error appears on the face of the record with respect to the retroactive child support award.

We overrule Flores's first and second issues to the extent that they pertain to the prospective child support award. We sustain Flores's first and second issues to the extent that they pertain to the retroactive child support award.

Partial Termination of Support Obligation

In his third issue, Flores contends that "he is entitled to reversal because the child support order failed to reduce the child support as each child reached [the] age of eighteen." (8)

Section 154.127 of the Family Code provides that "[a] child support order for more than one child shall provide that, on the termination of support for a child, the level of support for the remaining child or children is in accordance with the child support guidelines." Tex. Fam. Code Ann. § 154.127 (Vernon 2002).

In Newberry, our sister court held that a trial court abused its discretion when it signed a child support order that failed to properly apply section 154.127. 146 S.W.3d at 237. The father in Newberry complained that the child support order failed to properly decrease the "payments as set forth in the guidelines." Id. The court agreed, noting that the order required the father to pay $1,500 per month, regardless of whether he was obligated to support one or two children, and held that the trial court abused its discretion in requiring the father "to pay an amount of child support not in accordance with the guidelines and without making any specific factual findings to support the excessive amount." Id. The mother conceded that there was error on the face of the record and filed a voluntary remittitur so that the judgment would "fall[] within the Family Code guidelines," and the court reformed the judgment "according to the guidelines." Id. Similarly, in Deltuva v. Deltuva, the Dallas Court of Appeals, citing section 154.001(a)(1), stated that "[a]bsent a contractual agreement," a trial court could not require support for children who had left high school and were over the age of eighteen, and held that the trial court abused its discretion in failing to provide a reduction in the father's child support obligations for these events. 113 S.W.3d 882, 887 (Tex. App.--Dallas 2003, no pet.).

Here, as we have previously noted, the award for prospective child support of $900 per month falls well below the amount calculated under the Family Code's guidelines. Furthermore, we note that, even after his first child turns eighteen, the current guidelines would still require Flores to pay child support in the amount of $1,200 per month, an amount that exceeds the $900 per month Flores was actually ordered to pay by the trial court. Tex. Fam. Code Ann. § 154.001, 154.125, 154.126, 154.127 (Vernon 2002 & Supp. 2006). Nevertheless, we recognize that the terms of section 154.127 are mandatory, and the trial court abused its discretion in failing to include in its order a provision consistent with section 154.127. We hold that this error appears on the face of the record.

We sustain Flores's third issue.

Notice to Attorney General

In his fourth issue, Flores argues that "he is entitled to reversal because Cuevas failed to provide notice of her petition for relief to a necessary party, the Texas Attorney General's office, as assignee of her support right." Flores alleges, without citation to any portion of the record, that he and Cuevas have been involved in litigation concerning the children and that the "agency was required to receive notice of the filing of Cuevas's petition."

Flores cites section 102.009(d) of the Family Code, which provides, "If the petition requests the establishment . . . of a support right assigned to the Title IV-D agency under Chapter 231 . . . notice shall be given to the Title IV-D agency in a manner provided by Rule 21a, Texas Rules of Civil Procedure." Tex. Fam. Code Ann. § 102.009(d) (Vernon Supp. 2006).

There is nothing on the face of the record suggesting that Cuevas's support rights were assigned to the Title IV-D agency. Thus, we hold that Flores has failed to show error on the face of the record in this regard.

We overrule Flores's fourth issue.















Conclusion

We reverse the order of the trial court to the extent that it awards retroactive child support, and we remand this cause to the trial court for proceedings consistent with this opinion on the issue of retroactive child support and for the addition of a provision to the order in compliance with section 154.127 of the Family Code. See Tex. Fam. Code Ann. § 154.127. We affirm the remainder of the order of the trial court, including the portions of the order that establish Flores's paternity as to both children and award Cuevas prospective child support for those children in the amount of $900 per month.





Terry Jennings

Justice



Panel consists of Chief Justice Radack and Justices Jennings and Bland.

1.

Flores uses the term "prospective child support," to refer to the award of child support on a going-forward basis, and we adopt this term for consistency.

2.

Although this Court has previously considered and denied Cuevas's motion to dismiss Flores's restricted appeal on the ground that it was untimely, Cuevas again raises the timeliness issue in her appellate brief. The "order establishing the parent relationship" was signed on September 19, 2005, and both parties agree that the notice of restricted appeal was to be filed no later than March 20, 2006. See Tex. R. App. P. 25.1, 26.1(c). Cuevas alleges, as she did in her motion, that the notice was filed on March 21, 2006. In his response, Flores explained that he timely filed his notice on March 20, 2006, he discovered later that day that the file stamp incorrectly stated March 21, 2006, he returned to the clerk's office, and the clerk corrected the error. Flores attached to his response a copy of the corrected notice supporting his explanation, and, as we indicated by our July 17, 2006 order, we have considered the evidence contained in the record, accepted Flores's explanation, and determined the notice to be timely.

3.

Moreover, section 160.204 states that "a presumption of paternity established" under that section may be rebutted by an adjudication under Subchapter G of Chapter 160 of the Family Code, which includes section 160.634, the section under which Flores's paternity was adjudicated. See Tex. Fam. Code Ann. § 160.204(b)(1) (Vernon Supp. 2006).

4.

The tax charts account for the payment of, among other things, social security and federal income taxes. See Tex. Fam. Code Ann. § 154.061 (Vernon Supp. 2006). There was no evidence presented to support Flores's contention that he was entitled to any other deductions.

5.

If an obligor's net resources exceed $6,000 per month, the trial court "may order additional amounts of child support as appropriate, depending on the income of the parties and the proven needs of the child." Id. § 154.126 (Vernon 2002). Here, there was no evidence presented to show that the needs of the children required support above the presumptive percentage guidelines, and Cuevas does not complain of the trial court's failure to award any additional amounts. Furthermore, instead of exceeding the guidelines, as Flores alleges, the prospective child support award actually falls well below the guidelines. See id. However, although Cuevas recognizes in her briefing that she would have been entitled to a higher child support award under the guidelines, she does not challenge the amount of the award, and instead asks that it be affirmed.

6.

A court "shall" also "consider" 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(b) (Vernon 2002). There was no evidence presented on these additional factors.

7.

See 29 U.S.C. § 206 (1996).

8.

See Tex. Fam. Code Ann. § 154.001(a) (Vernon Supp. 2006) ("The court may order either or both parents to support a child in the manner specified by the order: (1) until the child is 18 years of age or until graduation from high school, whichever occurs later; (2) until the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law; (3) until the death of the child; or (4) if the child is disabled as defined in this chapter, for an indefinite period.").