Delivered and Filed: February 2, 2005.
The Honorable Pat Boone adopted the recommendations and orders of Associate Judge James A. Rausch.
Affirmed in Part; Reversed and Rendered in Part.
Sitting: Alma L. LÓPEZ, Chief Justice, Catherine STONE, Justice, Karen ANGELINI, Justice.
Guillermo Harper appeals the trial court's order establishing his paternity of B.N.B. and ordering him to pay $1,203.00 to the Office of the Attorney General in retroactive child support. Because the issues in this appeal involve the application of well-settled principles of law, we address the issues in this memorandum opinion. See Tex.R.App.P. 47.4.
1. In his first issue, Harper asserts that the trial court erred in failing to transfer venue of the suit to Travis County. "If venue of a suit is improper in the court in which the original suit is filed and no other court has continuing, exclusive jurisdiction of the suit," the trial court must transfer the suit to a county of proper venue "on the timely motion of a party other than the petitioner." Tex. Fam. Code Ann. § 103.002 (Vernon 2002). Section 155.204 establishes the timetables for filing a motion to transfer venue. See Tex. Fam. Code Ann. § 155.204 (Vernon 2002); McManus v. Wilborn, 932 S.W.2d 662, 665 (Tex.App.-Houston [14th Dist.] 1996, orig. proceeding). Harper was required to file his motion on or before the first Monday after the 20th day after the date of service of citation. Tex. Fam. Code Ann. § 155.204 (Vernon 2002). Harper was served with citation on July 3, 2003, but he did not file any document complaining of improper venue until November 5, 2003. Because Harper's complaint regarding improper venue was untimely, the trial court was not required to transfer the suit. Accordingly, Harper's first issue is overruled.
2. In his second issue, Harper complains that a "parentage test" proves that he is not the biological father of B.N.B. The record does not contain any results from a "parentage test", and Harper's pleadings contain numerous references to himself as B.N.B.'s father. See Brooks v. Center for Healthcare Servs., 981 S.W.2d 279, 283 (Tex.App.-San Antonio 1998, no pet.) (defining judicial admissions as assertions of fact in the live pleadings of a party); Tex.R.App.P. 38.1(h) (argument must be supported by record). Harper's second issue is overruled.
3. In his third issue, Harper contends that the OAG's objective was not in B.N.B.'s best interest. Although the best interest of the child is of the utmost importance in paternity suits, see Martinez v. Dept. of Human Resources, 620 S.W.2d 805, 808 (Tex.Civ.App.-Houston [14th Dist.] 1981, no writ), nothing contained in the record shows that the establishment of Harper's paternity was not in B.N.B.'s best interest regardless of the OAG's motive. Harper further contends that B.N.B's best interest was not protected because the trial court did not appoint an ad litem to represent her. Harper does not, however, provide any evidence that the actions taken by the trial court were not in B.N.B.'s best interest. B.N.B.'s mother, who was the only witness to testify at the hearing, stated that B.N.B. had been raised by her grandmother since she was 18-1/2 months old, and B.N.B. was ten-years-old at the time of the hearing. B.N.B.'s mother testified that it was in B.N.B's best interest to stay with her grandmother. Furthermore, Harper admits in several of his pleadings that he agreed to have B.N.B.'s grandmother raise her. Accordingly, the record does not support Harper's contention that the trial court erred in not appointing an ad litem. Harper's third and fourth issues are overruled.
4. In his fifth issue, Harper asserts that the trial court erred in denying his motion for a jury trial. A party is not entitled to a jury trial in a suit to adjudicate parentage or on the issue of child support. See Tex. Fam. Code Ann. § 155.002(b)(2), (c)(2)(A) (Vernon Supp. 2004-2005). Harper's fifth issue is overruled.
5. In his sixth issue, Harper complains that the trial court erred in failing to enter findings of fact and conclusions of law. Because Harper's notice of past due findings was prematurely filed and the record does not indicate that Harper otherwise brought the matter to the trial court's attention during the thirty day period following the date the findings were due, Harper's complaint regarding the trial court's failure to file findings of fact and conclusions of law is waived. See Tex. R. Civ. P. 297; Estate of Gorski v. Welch, 993 S.W.2d 298, 301-02 (Tex.App.-San Antonio 1999, pet. denied).
6. In his eighth issue, Harper contends that the trial court erred in entering its order by default despite Harper's efforts to appear in some manner. The trial court's order recites that the trial court considered Harper's motion for a bench warrant. We review the trial court's decision not to grant Harper's request for a bench warrant under an abuse of discretion standard. In re Z.L.T., 124 S.W.3d 163, 166 (Tex. 2003). When deciding whether to grant an inmate's request for a bench warrant, the trial court considers various factors, including: the cost and inconvenience of transporting the prisoner to the courtroom; the security risk the prisoner presents to the court and public; whether the prisoner's claims are substantial; whether the matter's resolution can reasonably be delayed until the prisoner's release; whether the prisoner can and will offer admissible, noncumulative testimony that cannot be effectively presented by deposition, telephone, or some other means; whether the prisoner's presence is important in judging his demeanor and credibility; whether the trial is to the court or a jury; and the prisoner's probability of success on the merits. Id. at 165-66. The main issues to be decided by the court were Harper's paternity and retroactive child support. Harper's pleadings contained admissions of paternity, and Harper and B.N.B.'s mother agreed that B.N.B. should be raised by her grandmother. B.N.B.'s mother and grandmother waived their rights to retroactive and future child support. The record reflects that the trial court did consider Harper's pleadings, which included an affidavit of his proposed testimony. Furthermore, the trial court noted that Harper could seek to modify the visitation set forth in its order upon his release from prison by filing a motion to modify. Given the issues in dispute, the trial court did not abuse its discretion in denying Harper's motion for a bench warrant. Harper's eighth issue is overruled.
7. In his seventh issue, Harper challenges the sufficiency of the evidence to support the portion of the trial court's order requiring him to pay retroactive child support. Harper states that the State of Texas never provided support for B.N.B. Harper presented this same complaint in the affidavit he filed in the trial court objecting to the OAG seeking retroactive child support. Furthermore, within thirty days after the date the trial court signed its order, Harper filed a document entitled "Limited Objection to Retroactive Support Owed Solely to the State." In that document, Harper objects to the award of retroactive child support, asserting that the OAG never presented any evidence regarding the support provided to B.N.B. by the State which would entitle the OAG to retroactive child support.
The OAG initially responds that the statement made by its attorney to the court regarding the child support owed constituted evidence of the support provided by the State because no objection was made to the statement. The OAG relies on Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997) to support its response.
The general rule, as recognized in Banda, is that an attorney's statements must be under oath to be considered evidence. Id. The exception in Banda permits an attorney's unsworn statements to be considered evidence if the opponent of the testimony waives the oath requirement by failing to object when the opponent knows or should know that an objection is necessary. Id. Statements made by an attorney will not constitute evidence based on the absence of an objection where the party who should have objected is not present and is not represented by counsel. Under those circumstances, the opponent of the testimony did not know and could not have known that an objection was necessary. Id.
The OAG further responds that if retroactive support had been calculated under the child support guidelines, the amount owed would have been greater. Even if we were to accept the OAG's contention, this argument would only support an increase in the total amount of retroactive child support owed. The argument still presents no evidence that any amount of retroactive child support would be owed to the State. Because no evidence is contained in the record to show that the State ever provided any support to B.N.B. that would entitle the OAG to retroactive child support, we sustain Harper's seventh issue.
The portion of the trial court's order awarding the OAG retroactive child support is reversed, and judgment is rendered that the OAG is not entitled to recover any retroactive child support from Harper for the period preceding the trial court's order. The remainder of the trial court's order is affirmed.