lOTION l)lNlEl): Opinion issued November 1, 2012.
In The
(tiiirt I Aii.it1
3FiftIi thitrirt øf rxu a,t tkillas
No. 05-I 2-00944-CV
IN TIlE INTEREST 01 P.E., C.E., AND S.E., ClllLiflN
On ;Ppeal fromthe 301st Judicial District Court
Dallas County. Texas
Trial Court Cause No. I)F-10-5399
MEMORANDUM OPINION ON MOTION TO REVIEW
TRIAL COURT ORDER SUSTAINING CONTEST TO
AFFIDAVIT OF INDIGENCE
Belore Chiel .Justice Wright, Justice Francis, and Justice Lang—N’l iers
Opinion By Justice Lang-Miers
Before the Court is Father’s motion to review the trial court’s order sustaining the court
reporter’s contest to his affidavit of indigence. We conclude the trial judge did not abuse her
discretion in sustaining the contest and deny Father’s motion.
BACKGROUNI)
Father, pro se at the time, filed his affidavit following final summary judgment in favor of
appellee, Father’s former attorney, on appellee’s petition for attorney’s fees. Father used a pre
printed affidavit fbrm which included sections concerning (1)the amount and sources of income, (2)
debts and expenses, and (3) property owned. Father averred he was unable to pay court costs and
indicated in his affidavit that he received $790 each month in public benefits including supplemental
social security disability income (SSI). He also indicated he owned a car valued at $1,000 and had
$2840 in monthly expenses consisting of“rent/house payments/maintenance,” food and household
supplies, utilities and telephone, hSflaaprôjti()fl, auto repair, gas,” and clothing and laundry.
Seeking “competent evidence” other than the affidavit, the court reporter contested the
affidavit, and the trial court held a hearing. Father, the sole witness and represented then by pm bono
counsel, testified upon questioning by the court reporter and appellee’s counsel that he lived with
his wife and children; that his wife worked as a nurse’s aide making $9 an hour and had made
$16,819 the previous year; that he received $698 in 551 benefits each month; and that he owed
approximately $38,000 in student loans. He testified further that he owned a house valued by the
county appraisal district at $115,000 and two cars. He explained, though, that the house “had been
placed... on short sale” because he was behind on his mortgage payments, and one ofthe cars was
inoperable. Upon questioning by his counsel, Father explained he had not included his wife’s
income in his affidavit because he did not know what it was at the time he completed the affidavit.
He became aware of her income the day before the hearing when they filed their tax return. Father
also testified he had ajoint checking account with his wife and had received assistance from Dallas
County and the Salvation Army to pay his utility bills.
During the questioning by Father’s counsel, the trial judge observed that there “seem[ed] to
be some real discrepancies” between the affidavit and testimony. Appellee’s counsel then urged the
trial judge to disregard the affidavit. Father’s counsel responded that there were no discrepancies,
just omissions and that the omissions were “to [Father’s] detriment” and not of “something” that
“benefitted” Father. Disagreeing with Father’s counsel, the trial judge sustained the contest and
specifically found Father had “failed to appropriately prepare [the] affidavit,” had “intentionally and
knowingly filed... a false affidavit,” and had “intentionally and knowingly left out [wife’s] income,
infbrmation concerning his vehicles,. . . information about the joint checking account. . . [and
—2—
information aboutj the real estate,”
STANDARD OF REVIEW AND APPIJ CABLE LAW
We review a trial court’s ruling on a contest to an affidavit of indigence for abuse of
discretion. Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. AppSan Antonio 2009, no pet.) (per
curiam). We will conclude the trial court abused its discretion if it acted without reference to any
guiding rules or principles or in an arbitrary and unreasonable manner. Id. As the factfinder, 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). We may not reverse the trial court’s
decision simply because we might have reached a different result. See Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).
DISC USS ION
Given the record before us, we cannot conclude the trial judge abused her discretion in
sustaining the contest. The trial judge’s ruling was based on her assessment of Father’s credibility.
Although Father explained his reasons for omitting certain information and provided information
omitted from the affidavit during his testimony, the trial judge observed Father’s demeanor and
appearance as he testified, and as the fact-finder, evaluated his credibility. We will not substitute
our judgment for that of the trial judge. Accordingly, we deny Father’s motion.
Having concluded the trial judge did not abuse her discretion in sustaining the contest, we
ORDER Father to pay, or make arrangements to pay, for the clerk’s and court reporter’s records
within twenty (20) days of the date of this opinion.
We caution hither that tii lure to 1ay br the reporters record will result in this appeal being
submitted without that record ftiilure to pay tor the clerk’s record will result in dismissal of this
appeal without further warning. See TEX, R. Api. P. 373(b), (c), 423 (b),(c),
/
/
/ ( *‘
/ ‘.7J ‘f7 17,’ I
f [ILA[3L 111 1 ANG-fvll[ R
ltJSlI( I
1 2O944FPO5