In re M.D.G.

• Decision Date: 27 January 2017
• Docket Number: No. 08-16-00004-CV.,08-16-00004-CV.
• Citation: 527 S.W.3d 299
• Parties: IN the INTEREST OF M.D.G., a Child
• Court: Texas Court of Appeals

527 S.W.3d 299

IN the INTEREST OF M.D.G., a Child

No. 08-16-00004-CV.

Court of Appeals of Texas, El Paso.

January 27, 2017

J.G., Pro se.

Veronica Teresa Lerma, El Paso, TX, Attorney for Appellee.

Before McClure, C.J., Rodriguez, and Hughes, JJ.

OPINION

YVONNE T. RODRIGUEZ, Justice

Jesus Guerra, pro se , appeals from an order modifying child support and health insurance obligations under a prior order in a suit affecting the parent-child relationship. We affirm.

FACTUAL SUMMARY

The final decree of divorce ordered Jesus Guerra to pay child support in the amount of $300.00 per month and designated Jessica Jacobs as the primary joint managing conservator of M.D.G. with the right to designate the child's residence. In 2010, Jacobs was serving in the Armed Forces of the United States and subject to deployment, so the parties entered into an agreed temporary modification order which named the child's grandmother, Margaret Sierra, as the primary managing conservator and authorized her to exercise Jacob's rights and duties under the prior order. The agreed temporary modification order suspended Guerra's obligation to pay child support until the agreed order is modified or it terminated on August 31, 2014.

In 2011, Jacobs filed a motion seeking to modify the agreed temporary modification order by reappointing her as the joint managing conservator. She also asked the trial court to modify child support and medical insurance for the child. Following a hearing, the trial court set aside the agreed temporary modification order and found that child support should be modified due to the existence of material and substantial changes since the rendition of the final decree of divorce. The court ordered that child support would be modified after it received proof of income.

The record does not reflect that the trial court entered an order modifying the amount of child support, but Guerra, on October 23, 2014, filed an objection to what he referred to as the amended court order for income withholding. In his brief, Guerra states that he appeared at a hearing on September 18, 2015, and presented proof of his income, and the associate judge set his child support obligation at $405.84 per month retroactive to May 1, 2012. On September 18, 2015, the district court signed an order setting Guerra's child support obligation at $405.00 per month retroactive to May 1, 2012, and requiring him to reimburse Jacobs for the cost of the child's medical insurance premium.

NEW ISSUES RAISED IN REPLY BRIEF

Guerra filed a reply brief raising new issues. Rule 38.3 restricts a reply brief to addressing matters raised in the appellee's brief. TEX.R.APP.P. 38.3 ; Calvillo v. Carrington Mortgage Services , 487 S.W.3d 626, 630 n.2 (Tex.App.–El Paso 2015, pet. denied). A reply brief may not be utilized to present a new issue to the court. Calvillo , 487 S.W.3d at 630 n.2 ; Fox v. City of El Paso , 292 S.W.3d 247, 249 (Tex.App.–El Paso 2009, pet. denied). Consequently, we will not address the new issues raised in the reply brief, but we will consider those arguments made in response to Jacobs' brief.

PROCEDURAL DEFAULTS

Jacobs argues in her brief that the appeal should be dismissed because Guerra did not perfect the appeal, his notice of appeal does not comply with TEX.R.APP.P. 25.1(d), and his brief does not comply with TEX.R.APP.P. 38.1. In order to perfect an appeal in a civil case, a party must file a written notice of appeal within thirty days after the judgment is signed. See TEX.R.APP.P. 25.1, 26.1. The trial court conducted the hearing on September 16, 2015, but it did not sign the challenged modification order until September 18, 2015. Guerra filed a premature notice of appeal on September 17, 2015. In a civil case, a prematurely filed notice of appeal is effective and deemed filed on the day of, but after, the event that begins the period for perfecting the appeal. See TEX.R.APP.P. 27.1(a). Guerra timely perfected his appeal.

Jacobs next asserts that Guerra's appeal should be dismissed because his notice of appeal does not comply with Rule 25.1(d). We are mindful that pro se litigants are generally held to the same standards as a licensed attorney and are required to comply with all applicable laws and rules of procedure. See Robb v. Horizon Communities Improvement Association, Inc. , 417 S.W.3d 585, 589–90 (Tex.App.–El Paso 2013, no pet.) ; Viasana v. Ward County , 296 S.W.3d 652, 654 (Tex.App.–El Paso 2009, no pet.). Rule 25.1(d) specifies the contents of the notice of appeal. See TEX.R.APP.P. 25.1(d). Although Rule 42.3(c) permits dismissal of an appeal where the appellant has failed to comply with a requirement of the Rules of Appellate Procedure, such as Rule 25.1(d), but dismissal is discretionary with the appellate court. See TEX.R.APP.P. 42.3. Appellate courts are required to interpret the Rules of Appellate Procedure liberally in order to reach the merits of an appeal whenever possible. Jones v. Stayman , 747 S.W.2d 369, 370 (Tex. 1987) ; St. Mina Auto Sales, Inc. v. Al–Muasher , 481 S.W.3d 661, 668 (Tex.App.–Houston [1st Dist.] 2016, pet. denied). Further, an appellant is permitted to amend the notice of appeal. See TEX.R.APP.P. 25.1(g). We agree that Guerra's notice of appeal does not include all of the required information, but it is apparent from a reading of Jacob's brief that she has been able to discern which order Guerra is challenging in this appeal. Consequently, we will not dismiss the appeal or require Guerra to file an amended notice of appeal.

Jacobs also contends that Guerra's brief does not comply with Rule 38.1. When reviewing a brief, whether filed by counsel or by pro se parties, we are required to construe it reasonably, yet liberally, so that the right to appellate review is not lost by waiver. Perry v. Cohen , 272 S.W.3d 585, 587 (Tex. 2008). Substantial compliance with the rules is sufficient. See TEX.R.APP.P. 38.9. Jacobs is correct that Guerra's brief is deficient in several respects, but we decline to dismiss the appeal due to inadequate briefing.

FAILURE TO FILE REPORTER'S RECORD

There is another procedural matter which must be considered before we address the merits of the appeal. The court reporter notified the Court that Guerra had not required the reporter's record or made financial arrangements to pay for the preparation of the reporter's record.

On January 26, 2016, we notified Guerra that his appeal would be submitted on the clerk's record alone if he did not request the reporter's record and make arrangements to pay for it. See TEX.R.APP.P. 37.3(c). Guerra did not respond to the inquiry. In the absence of a reporter's record, we are limited to considering those issues which do not require a reporter's record for a decision. TEX.R.APP.P. 37.3(c).

Guerra's first two issues pertain to the legality of the modification order and do not require a reporter's record to address. The same cannot be said for the third issue where Guerra maintains that the trial court abused its discretion by miscalculating the amount of child support he is required to pay. A trial court's order modifying child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. See In re J.A.J., 283 S.W.3d 495, 497 (Tex.App.–Beaumont 2009, no pet.). The test for abuse of discretion is whether the trial court acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. Cire v. Cummings , 134 S.W.3d 835, 838–39 (Tex. 2004) ; Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990). Guerra's entire argument is based on the evidence presented at the hearing regarding his gross monthly earnings as reflected on two pay stubs, his exchanges with the trial court during the hearing, and his objections to evidence presented. While Guerra's brief provides details about the evidence presented at the hearing, he has not provided us with the reporter's record or any exhibits introduced during the hearing. A reporter's record of the modification hearing is required to properly assess Guerra's third issue.

There is nothing in the record to indicate that the amount of child support ordered by the trial court varied from the amount computed by applying the percentage guidelines. Consequently, the court was not required to make findings unless Guerra made a written request within ten days after the hearing, or Guerra made an oral request in open court during the hearing. See TEX.FAM.CODE ANN. § 154.130 (West 2014). When no findings of fact and conclusions of law are filed, we must presume the trial court made all the necessary findings to support its judgment. Holt Atherton Industries, Inc. v. Heine , 835 S.W.2d 80, 83 (Tex. 1992) ; Garcia v. Garcia , 170 S.W.3d 644, 652 (Tex.App.–El Paso 2005, no pet.). The legal and factual sufficiency of the evidence to support these implied findings may be challenged only when a reporter's record is brought forward. Holt Atherton , 835 S.W.2d at 84. When a reporter's record is not filed, as in this case, we must assume that the missing evidence supports the trial court's ruling. Bryant v. United Shortline Inc. Assurance Services , 972 S.W.2d 26, 31 (Tex. 1998). Consequently, Guerra's failure to take the necessary steps to ensure that the reporter's record was filed prevents us from reviewing this issue or granting the relief he requests. Issue Three is overruled.

DISMISSAL OF GUERRA'S COUNSEL AND RETROACTIVE CHILD SUPPORT

In Issue One, Guerra raises two distinct legal arguments which we will address separately. First, Guerra contends that his right to "equality under the law" was violated when the trial court did not permit him to enter on the record at the hearing that he had dismissed his legal counsel. The modification order reflects that Guerra was represented by an attorney at the hearing. A record of the hearing has not been made part of the appellate record. Consequently, Guerra has waived the issue because the record...