Opinion
NO. 01-16-00823-CV
05-23-2017
EBONY ALLEN, Appellant v. STEVEN PORTER, Appellee
On Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 81796-F
MEMORANDUM OPINION
Appellee, Steven Porter, instituted this suit affecting the parent-child relationship ("SAPCR") against appellant, Ebony Allen, the mother of their daughter, S.A. The trial court adjudicated Porter the father of S.A., named Allen and Porter as joint managing conservators of S.A., awarded Porter visitation consistent with a standard possession order, confirmed Porter's temporary child support arrearages, and set Porter's prospective monthly child support obligation. The trial court did not award Allen child support retroactive to S.A.'s birth. In her sole issue on appeal, Allen contends that the trial court abused its discretion in failing to award retroactive child support.
We affirm.
Background
In June 2013, Allen, who was not married to Porter, gave birth to S.A. Porter subsequently filed a SAPCR, seeking to be adjudicated as S.A.'s father. During the pendency of the SAPCR, the trial court required Porter to pay temporary child support beginning in September 2015. Shortly before trial, the parties entered into a Rule 11 Agreement in which they agreed that Porter owed $4,340 in child support arrearages from September 1, 2015, to July 15, 2016, and that, going forward, Porter should pay $100 per month to reduce the arrearages. The parties agreed that Porter's current child support obligation would begin on September 1, 2016, and that he would owe Allen $668.83 per month.
The trial court held a trial on the merits on July 18, 2016. The parties waived the recording of testimony, and thus there has been no reporter's record filed in this appeal. The trial court's docket sheet reflected that, at the trial on the merits, the court "considered [the] issue of retro[active child support] only" because "[a]ll other issues [were] resolved by [agreement] and [mediated settlement agreement]." The docket entry also stated that the trial court denied retroactive child support.
On August 12, 2016, the trial court signed an order adjudicating parentage of S.A. The trial court adjudicated Porter to be S.A.'s father and named both Porter and Allen as joint managing conservators, with Allen having the right to designate S.A.'s primary residence. The trial court's order granted Porter visitation with S.A. consistent with a standard possession order. The order also set out Porter's child support obligations going forward. It provided that Porter was obligated to pay $668.83 per month in child support to Allen beginning on August 1, 2016. With respect to the temporary child support Porter had been required to pay between September 1, 2015, and July 15, 2016, pursuant to the parties' Rule 11 Agreement, the order stated: "The Court further finds and confirms that [Porter] is in arrears in the amount of $4340.00 through July 10, 2016. Judgment should be awarded against [Porter] in the total amount of $4340.00 for the arrearages. The Court further finds that all arrearages amounts should be withheld from [Porter's] earnings at the rate of $100.000 per month, beginning September 1, 2016." The order did not specifically award or deny child support retroactive to S.A.'s birth, but it did include a Mother Hubbard clause stating that "all relief requested in this case and not expressly granted is denied."
Allen filed a notice of appeal from this order, stating that she "seeks to alter the trial court's denial of child support from birth."
Retroactive Child Support
In her sole issue on appeal, Allen contends that the trial court erred by not awarding retroactive child support from the birth of S.A. in June 2013 to September 2015, when the trial court ordered the payment of temporary child support during the pendency of the SAPCR.
Family Code section 154.009(a) provides that a trial 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. TEX. FAM. CODE ANN. § 154.009(a) (West 2014); see also id. § 160.636(g) (West Supp. 2016) (providing, pursuant to Uniform Parentage Act, that trial court may order retroactive child support upon finding of parentage). If the trial court decides to award retroactive child support, the court must apply the child support guidelines contained in Family Code Chapter 154. Id. § 154.009(b); see also id. § 154.131(a) (West 2014) ("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 in ordering retroactive child support, the trial court shall consider the net resources of the obligor parent during the relevant time period and 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. Id. § 154.131(b).
The Family Code does not mandate the award of retroactive child support; rather, the decision to award such support "is left to a factual determination on the part of the trial judge." Garza v. Blanton, 55 S.W.3d 708, 709 (Tex. App.—Corpus Christi 2001, no pet.); see also In re Guthrie, 45 S.W.3d 719, 727 (Tex. App.—Dallas 2001, pet. denied) ("The statutory language provides that the trial court has discretion in deciding whether to award retroactive child support and the amount of such an award."). The trial court "maintains discretion in deciding whether to award retroactive child support," and we therefore review that decision for an abuse of discretion. Garza, 55 S.W.3d at 710; In re Guthrie, 45 S.W.3d at 727. A trial court abuses its discretion if it acts without reference to any guiding rules or principles or the decision is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law. See Garza, 55 S.W.3d at 710; In re Guthrie, 45 S.W.3d at 727.
The appellant bears the burden to bring forward on appeal a sufficient record to show the error committed by the trial court. Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.)); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) ("The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal."). The appellant's failure to obtain a reporter's record containing a ruling challenged on appeal makes it impossible for the appellate court to determine that the trial court abused its discretion in making the ruling. Huston, 434 S.W.3d at 636 (citing Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n.1 (Tex. App.—Houston [1st Dist.] 2012, no pet.)). In the absence of a reporter's record, "[w]e indulge every presumption in favor of the trial court's findings." Bryant v. United Shortline Inc. Assurance Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998); Willms v. Am. Tire Co., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet. denied) ("[W]hen an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order.").
Here, the parties agreed to a pre-trial Rule 11 Agreement concerning the amount of Porter's monthly child support obligation going forward and the amount of his child support arrearages that accrued during the pendency of the SAPCR. The trial court's docket sheet reflected that the only issue heard on the day of trial was the issue of retroactive child support from the date of S.A.'s birth in June 2013 to the date the trial court ordered Porter to pay temporary child support in September 2015. The docket sheet reflected that the parties had waived the making of a reporter's record, and this was also reflected in the trial court's order adjudicating parentage, which stated, "The making of a record of testimony was waived by the parties with the consent of the Court." No reporter's record was prepared or filed with this Court.
In its order, the trial court adjudicated Porter as the father of S.A., set his monthly child support obligation at $668.83 per month going forward, confirmed that he owed $4,340 in arrearages under temporary child support orders, and required that an additional $100 per month be withheld from his salary to pay off his arrearages. The order did not award Allen retroactive child support from S.A.'s birth. Because we do not have a reporter's record from the trial, we have no way of determining what evidence was admitted before the trial court and what the court considered when it made its determination not to award retroactive support. See Huston, 434 S.W.3d at 636 (stating that appellant's failure to obtain reporter's record containing challenged ruling makes it impossible for appellate court to determine whether trial court abused its discretion). We therefore presume, in the absence of a reporter's record, that the evidence presented at trial supports the trial court's decision to deny retroactive child support. See Bryant, 972 S.W.2d at 31; Willms, 190 S.W.3d at 803; see also In re J.W., 97 S.W.3d 818, 825 (Tex. App.—Dallas 2003, pet. denied) (holding that because there was no record of evidence presented at trial concerning child support, child presented nothing for appellate court to review on his cross-appeal concerning his claim for additional retroactive child support).
Both Allen and Porter have attached documents as appendices to their appellate briefs. "The attachment of documents as exhibits or appendices to documents filed by a party in an appellate court is not formal inclusion in the record on appeal and, therefore, such documents cannot be considered." Fox v. Alberto, 455 S.W.3d 659, 668 n.5 (Tex. App.—Houston [14th Dist.] 2014, pet. denied). Because the documents attached to Allen's and Porter's briefs are not part of the appellate record, we may not consider these documents in determining whether the trial court abused its discretion in refusing to award retroactive child support.
We overrule Allen's sole issue.
Conclusion
We affirm the judgment of the trial court.
Evelyn V. Keyes
Justice Panel consists of Justices Keyes, Bland, and Huddle.