OAG-Suits: In the Interest of J.D.K., A Child, No. 02-06-00280-CV (Tex.App.- Fort Worth Sep. 27, 2007)(Opinion by Justice Livingston )(paternity suit, retroactive support, default judgment)(Before Justices Livingston, Dauphinot and Walker)
Appeal from 415th District Court of Parker County
Disposition: Affirmed
Appellant Carl K., pro se, appeals from the trial court=s default judgment against him in this suit to establish the parent-child relationship filed by the Attorney General. Although appellant does not assign specific issues or points to his complaints, he does complain that (1) the default judgment should be set aside because he could not attend the hearing through no fault of his own because he had been in a car accident, (2) retroactive child support should not have been awarded to appellee Lisa K. because their daughter, J.D.K., had not lived with Lisa since she was twelve years old, and (3) he has evidence showing that he did support J.D.K. in the past until she decided to move out on her own and marry. We affirm.
On January 23, 2006, when J.D.K. was seventeen years old, the Attorney General filed a petition to establish Carl=s paternity[2] and order him to pay current and retroactive child support. Although he was served with citation and received notice of the hearing on the petition, Carl failed to appear at the July 21, 2006 hearing. The trial court entered a default judgment against him after hearing testimony from Lisa regarding Carl=s failure to pay child support in the amount of $8,320.[3] The default judgment orders Carl to pay retroactive child support of $8,320 to Lisa in $300 installments beginning August 1, 2006. It also requires him to pay court costs.
Carl did not file any document purporting to be a motion for new trial. On August 11, 2006, twenty-one days after the hearing, Carl filed a sworn AAffidavit of Inability@ with the trial court, in which he averred that he could not pay court costs due to his unemployment and debts. In the affidavit, he also states that he believes he has a Ameritorious claim.@ The same day, he filed a notice of appeal stating that he Acould not be in court due to an auto accident [a]nd could not be heard to give testimony about this cause.@ He also stated in the notice of appeal that J.D.K. had not lived with Lisa for the last four years and that the amount set by the trial court did not follow the Attorney General=s percentage of income guidelines.[4] The trial court did not hold a hearing or make any ruling as to the assertions set forth in Carl=s affidavit of inability or notice of appeal.
When extrinsic evidence is necessary to challenge a default judgment, a motion for new trial is a prerequisite to complaining on appeal that it should be set aside. See Tex. R. Civ. P. 324(b)(1); Massey v. Columbus State Bank, 35 S.W.3d 697, 699 (Tex. App.CHouston [1st Dist.] 2000, pet. denied); Zuniga v. Zuniga, 13 S.W.3d 798, 802 (Tex. App.CSan Antonio 1999, no pet.), disapproved of on other grounds by In re Z.L.T., 124 S.W.3d 163 (Tex. 2003); see also Craddock v. Sunshine Bus Lines, Inc., 134 Tex. 388, 133 S.W.2d 124, 126 (1939) (establishing matters defendant must prove to obtain new trial after default judgment). In the motion for new trial, the movant must (1) establish that the failure to answer was not intentional or the result of conscious indifference, (2) set up a meritorious defense, and (3) demonstrate that setting aside the default judgment would not delay or otherwise injure the plaintiff. In re R.R., 209 S.W.3d 112, 114-15 (Tex. 2006); Craddock, 133 S.W.2d at 126; In re K.B.A., 145 S.W.3d 685, 691 (Tex. App.CFort Worth 2004, no pet.). To successfully challenge a default judgment, the movant must allege, and support with sworn proof, the three Craddock requirements. Ivy v. Carrell, 407 S.W.2d 212, 214 (Tex. 1966); Wal-Mart Stores, Inc. v. Kelley, 103 S.W.3d 642, 644 (Tex. App.CFort Worth 2003, no pet.); Pickell v. Guaranty Nat=l Life Ins. Co., 917 S.W.2d 439, 443 (Tex. App.CHouston [14th Dist.] 1996, no writ).
Even if we were to construe the statements in Carl=s affidavit of inability and notice of appeal as a motion for new trial, see Zuniga, 13 S.W.3d at 802-03, the allegations set forth in those documents are not supported by sufficient sworn proof; thus, they would not entitle Carl to relief. See Ivy, 407 S.W.2d at 214-15; Kelley, 103 S.W.3d at 644; Massey, 35 S.W.3d at 699; Pickell, 917 S.W.2d at 443. And because Carl did not file a motion for new trial with supporting proof, the allegations in his brief are not included in the appellate record. Accordingly, we overrule Carl=s complaint that the trial court improperly entered a default judgment against him for failure to appear. Because none of Carl=s remaining complaints are supported by the record, we overrule them as well.
Having overruled all of Carl=s complaints, we affirm the trial court=s judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL B: LIVINGSTON, DAUPHINOT, and WALKER, JJ.
DELIVERED: September 27, 2007
[1]See Tex. R. App. P. 47.4.
[2]Although no evidence of Carl=s alleged paternity was admitted at trial, Carl admits in his brief that he is J.D.K.=s father. Moreover, his complaints appear to concern only the retroactive child support award rather than the adjudication of his paternity.
[3]By the time of trial, J.D.K. was eighteen years old, so the trial court did not establish conservatorship or order future child support or medical support.
[4]When the obligor=s monthly net income is less than $6,000, the child support guidelines provide the obligor to pay twenty percent of the monthly net income for one child. See Tex. Fam. Code Ann. ' 154.125(b) (Vernon 2002) (amended effective Sept. 1, 2007, to increase amount to $7,500); see also id. '' 154.009(b) (requiring trial court to follow statutory child support guidelines when ordering retroactive support), 154.068 (AIn 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.@), 154.131 (providing factors for court to consider in awarding retroactive support) (amended effective Sept. 1, 2007 to add subsection (f)). Here, the State introduced Exhibit 1, which it represented was calculations for the retroactive child support judgment. That exhibit lists the amounts of net monthly income from 2006 to 2006; for each year, the corresponding monthly child support amount is calculated to be $160, which is approximately twenty percent of the net monthly income for each year. For example, the net monthly income for 2005 is listed as $783.60; twenty percent of that is $156.72, and seven monthly payments were shown as unpaid. But for 2006, for which twelve monthly payments were unpaid, the net income was shown as $803.45, twenty percent of which is $160.69.
Sunday, September 30, 2007
Parental Presumption does not apply in SAPCR modification proceeding - order terminating grandparent access reversed
Grandparent access: In the Interest of M.A.S. and M.B.S., Children, No. 04-06-00629-CV (Tex.App. - San Antonio, Sep. 12, 2007)(Opinion by Chief Justice López)(grandparent access)(Before Chief Justice López, Justices Marion and Speedlin)
Appeal from 81st District Court of Wilson County
Disposition: Reversed and remanded
IN THE INTEREST OF M.A.S. and M.B.S., Children
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 04-12-0553-CVW
Honorable Stella Saxon, Judge Presiding
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: September 12, 2007
REVERSED AND REMANDED
Reanell Speer appeals the trial court's order modifying the parent-child relationship and terminating her access to her grandchildren. Speer contends that the trial court erred in applying a parental presumption in the modification proceeding. We reverse the trial court's order and remand the cause to the trial court for further proceedings.
Background
Milisia Bielstein and Thomas Swanson are the parents of two children, M.A.S. and M.B.S. Reanell Speer is the children's maternal grandmother. In May of 2004, the trial court issued a custody order naming Bielstein and Swanson as joint managing conservators and Speer as possessory conservator of the children. In January of 2006, Bielstein filed a motion to modify the parent-child relationship, requesting that Speer's access to the children be terminated. After a hearing, the trial court granted Bielstein's motion. This appeal followed.
Standard of Review
We review a trial court's decision to modify conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In the Interest of M.R., 975 S.W.2d 51, 53 (Tex. App.-San Antonio 1998, pet. denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
Analysis
Speer contends that the trial court erred in applying a presumption that a parent acts in the best interest of her children in the modification proceeding. Citing In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (1), Speer argues that the presumption, which is set forth in section 153.433(2) of the Texas Family Code (2), applies only to an original custody proceeding but not to a modification proceeding. We agree.
In V.L.K., the Texas Supreme Court held that the parental presumption contained in section 153.131 of the Texas Family Code applied only in original custody determinations and not in modification suits. 24 S.W.3d at 339-40. The court made a distinction between Chapter 153 of the Family Code, which governs original custody determinations and contains a parental presumption, and Chapter 156 of the Family Code, which governs modification suits and does not contain a presumption. Id. at 341-43. Because the legislature did not include a parental presumption in Chapter 156, the court held that the presumption did not apply in modification suits. Id. at 343. Like the presumption in V.L.K., the parental presumption involved in this case is also contained in Chapter 153, and its applicability is therefore also limited to original custody determinations. See id.; Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007).
Thus, the trial court erred in applying a parental presumption in this case.
The correct standard is contained in section 156.101, which places the burden on the person seeking modification of an existing custody order to show that modification would be in the best interest of the child and that the circumstances of at least one of the parties affected by the order have materially and substantially changed since the order took effect. See Tex. Fam. Code Ann. § 156.101 (Vernon Supp. 2007).
Bielstein argues that there is no evidence that the trial court applied a parental presumption in this case. We disagree. During a hearing on Bielstein's motion to enter the trial court's modification order, Bielstein argued that the trial court should enter the order based on In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006), which relied extensively on the plurality opinion in Troxel v. Granville, 530 U.S. 57 (2000) in holding a visitation statute unconstitutional. Mays-Hooper, 189 S.W.3d at 777-78. In Troxel, the plurality held a visitation statute unconstitutional mainly because the statute did not include a presumption that a fit parent acts in the best interest of her children. 530 U.S. at 68-70. In Mays-Hooper, the court stated that it reached the same result as that in Troxel because the facts in both cases were "virtually the same." 189 S.W.3d at 778. Speer argued at the hearing that the parental presumption involved in Mays-Hooper applied to only original custody determinations and not to modification proceedings.
After hearing arguments from both parties, the trial court concluded that "[b]ased upon the applicable law in the State of Texas the court finds that in this particular case the Mays-Hooper standard does apply." Later, at a hearing on Speer's motion for reconsideration and new trial, the trial court stated that "[i]t seems to me that the entire direction that the law is going in is a recognition by the courts that parents have a right to determine access to their children." The trial court's comments make it clear that the court applied a parental presumption in this case.
Because the parental presumption does not apply in modification suits, the trial court abused its discretion in applying the presumption in this case. Accordingly, we reverse the trial court's order and remand the cause to the trial court for further proceedings consistent with this opinion.
Conclusion
The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. (3)
Alma L. López, Chief Justice
1. Although the opinion in In re V.L.K. was issued before the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000), Bielstein does not argue in her brief that Troxel affects the holding in In re V.L.K., and at least one court has expressly addressed the continuing validity of the Texas Supreme Court's decision post-Troxel. See In re M.N.G., 113 S.W.3d 27 (Tex. App.--Fort Worth 2003, no pet).
2. The relevant provision of section 153.433 of the Texas Family Code states that the court must order reasonable possession of or access to a grandchild by a grandparent if, among other things, "the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being." Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007).
3. Speer also contends that the trial court erred in: (1) failing to make a record of the modification hearing and failing to consider evidence at the hearing; (2) granting the motion to modify when there was no evidence that the circumstances of any parties affected by the order had materially or substantially changed and no evidence that the modification was in the best interest of the children; and (3) excluding evidence that the children's physical or emotional well-being would suffer if the court did not grant grandparent visitation. We need not address these issues because our analysis of the trial court's application of the parental presumption is dispositive of this appeal. See Tex. R. App. P. 47.1.
Appeal from 81st District Court of Wilson County
Disposition: Reversed and remanded
IN THE INTEREST OF M.A.S. and M.B.S., Children
From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 04-12-0553-CVW
Honorable Stella Saxon, Judge Presiding
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: September 12, 2007
REVERSED AND REMANDED
Reanell Speer appeals the trial court's order modifying the parent-child relationship and terminating her access to her grandchildren. Speer contends that the trial court erred in applying a parental presumption in the modification proceeding. We reverse the trial court's order and remand the cause to the trial court for further proceedings.
Background
Milisia Bielstein and Thomas Swanson are the parents of two children, M.A.S. and M.B.S. Reanell Speer is the children's maternal grandmother. In May of 2004, the trial court issued a custody order naming Bielstein and Swanson as joint managing conservators and Speer as possessory conservator of the children. In January of 2006, Bielstein filed a motion to modify the parent-child relationship, requesting that Speer's access to the children be terminated. After a hearing, the trial court granted Bielstein's motion. This appeal followed.
Standard of Review
We review a trial court's decision to modify conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In the Interest of M.R., 975 S.W.2d 51, 53 (Tex. App.-San Antonio 1998, pet. denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
Analysis
Speer contends that the trial court erred in applying a presumption that a parent acts in the best interest of her children in the modification proceeding. Citing In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (1), Speer argues that the presumption, which is set forth in section 153.433(2) of the Texas Family Code (2), applies only to an original custody proceeding but not to a modification proceeding. We agree.
In V.L.K., the Texas Supreme Court held that the parental presumption contained in section 153.131 of the Texas Family Code applied only in original custody determinations and not in modification suits. 24 S.W.3d at 339-40. The court made a distinction between Chapter 153 of the Family Code, which governs original custody determinations and contains a parental presumption, and Chapter 156 of the Family Code, which governs modification suits and does not contain a presumption. Id. at 341-43. Because the legislature did not include a parental presumption in Chapter 156, the court held that the presumption did not apply in modification suits. Id. at 343. Like the presumption in V.L.K., the parental presumption involved in this case is also contained in Chapter 153, and its applicability is therefore also limited to original custody determinations. See id.; Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007).
Thus, the trial court erred in applying a parental presumption in this case.
The correct standard is contained in section 156.101, which places the burden on the person seeking modification of an existing custody order to show that modification would be in the best interest of the child and that the circumstances of at least one of the parties affected by the order have materially and substantially changed since the order took effect. See Tex. Fam. Code Ann. § 156.101 (Vernon Supp. 2007).
Bielstein argues that there is no evidence that the trial court applied a parental presumption in this case. We disagree. During a hearing on Bielstein's motion to enter the trial court's modification order, Bielstein argued that the trial court should enter the order based on In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006), which relied extensively on the plurality opinion in Troxel v. Granville, 530 U.S. 57 (2000) in holding a visitation statute unconstitutional. Mays-Hooper, 189 S.W.3d at 777-78. In Troxel, the plurality held a visitation statute unconstitutional mainly because the statute did not include a presumption that a fit parent acts in the best interest of her children. 530 U.S. at 68-70. In Mays-Hooper, the court stated that it reached the same result as that in Troxel because the facts in both cases were "virtually the same." 189 S.W.3d at 778. Speer argued at the hearing that the parental presumption involved in Mays-Hooper applied to only original custody determinations and not to modification proceedings.
After hearing arguments from both parties, the trial court concluded that "[b]ased upon the applicable law in the State of Texas the court finds that in this particular case the Mays-Hooper standard does apply." Later, at a hearing on Speer's motion for reconsideration and new trial, the trial court stated that "[i]t seems to me that the entire direction that the law is going in is a recognition by the courts that parents have a right to determine access to their children." The trial court's comments make it clear that the court applied a parental presumption in this case.
Because the parental presumption does not apply in modification suits, the trial court abused its discretion in applying the presumption in this case. Accordingly, we reverse the trial court's order and remand the cause to the trial court for further proceedings consistent with this opinion.
Conclusion
The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. (3)
Alma L. López, Chief Justice
1. Although the opinion in In re V.L.K. was issued before the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000), Bielstein does not argue in her brief that Troxel affects the holding in In re V.L.K., and at least one court has expressly addressed the continuing validity of the Texas Supreme Court's decision post-Troxel. See In re M.N.G., 113 S.W.3d 27 (Tex. App.--Fort Worth 2003, no pet).
2. The relevant provision of section 153.433 of the Texas Family Code states that the court must order reasonable possession of or access to a grandchild by a grandparent if, among other things, "the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being." Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007).
3. Speer also contends that the trial court erred in: (1) failing to make a record of the modification hearing and failing to consider evidence at the hearing; (2) granting the motion to modify when there was no evidence that the circumstances of any parties affected by the order had materially or substantially changed and no evidence that the modification was in the best interest of the children; and (3) excluding evidence that the children's physical or emotional well-being would suffer if the court did not grant grandparent visitation. We need not address these issues because our analysis of the trial court's application of the parental presumption is dispositive of this appeal. See Tex. R. App. P. 47.1.
Granger v. Granger (Tex.App.- Tyler, Sep. 26, 2007)
Karen Granger v. Helen Granger, Elijah Granger, Chester Benjamin, Sarah Reed, Joseph Benjamin, Susie Williams and Tony Granger, No. 12-06-00147-CV (Tex.App.- Sep. 26, 2007)(Opinion by Hon. Griffith)(affirmed)(marital property, community property presumption, separate property, life insurance policy)
Appeal from 159th District Court of Angelina County
OPINION
Appellant Karen Granger appeals the trial court’s judgment denying her claim to one-half of a life insurance policy purchased by her deceased husband. In three issues, Karen argues that the beneficiaries of her husband’s life insurance policy failed to prove by clear and convincing evidence that the policy was his separate property and that, if the policy was community property, the gift of the proceeds was a fraud on the community estate, entitling her to an appropriate remedy.
Background
Karen and Danny Granger were married on May 24, 1999 and had two children during the marriage. In 2003, Danny purchased two life insurance policies, one from Monumental Life Insurance Company in the amount of $150,000.00 and the other from Old Line Life Insurance Company of America in the amount of $100,000.00. Danny named his mother, Helen Granger, and his brother, Elijah Granger, as beneficiaries of the Monumental policy. He named his mother, four brothers, and two sisters as beneficiaries of the Old Line policy. Danny paid the premiums for both policies through automatic drafts from his Regions Bank account. The first Monumental policy premium was drafted on March 4, 2003 in the amount of $15.00 and the first Old Line policy premium was drafted in May of 2003. Danny died on October 27, 2003. After his death, Monumental distributed the proceeds of its policy to Helen Granger and Elijah Granger.
On March 22, 2004, Old Line filed suit, seeking to deposit funds in the court’s registry to resolve conflicting claims to the proceeds of its insurance policy. Karen, Helen, and Danny’s four brothers and two sisters were named defendants. Karen filed a cross action against Danny’s mother, four brothers, and two sisters, claiming that Danny’s gifts of her one-half community interest in the policies constituted fraud on her and on the community estate. The trial court ordered that Old Line’s policy proceeds be deposited into the registry of the court. After a bench trial, the trial court found that Danny had community funds in his possession when he purchased the Old Line policy and that one-half of the policy was Karen’s community property. However, the trial court found that Danny used separate property funds to purchase the Monumental policy and, thus, the policy was Danny’s separate property. The trial court ordered that Karen recover one-half of the proceeds of the Old Line policy, but that she take nothing on her claims regarding the Monumental policy. The trial court also ordered that Danny’s mother, four brothers, and two sisters recover the other one-half of the proceeds of the Old Line policy.
In its findings of fact and conclusions of law, the trial court stated as follows:
1. Danny and Karen were married on May 24, 1999, and ceased to live together as husband and wife approximately one year before his death as a result of an auto accident on or about October 27, 2003, in Lufkin, Angelina County, Texas.
2. Danny was totally disabled as determined by the Social Security Administration as of June 22, 2000, and was awarded Supplemental Security Income (“SSI”) which was paid monthly to him with payments being made to Sarah Reed for Danny beginning July 1, 2000.
3. Danny received $457.00 in SSI payments for each month during the year of 2003, through the month of his death in October 2003. The SSI payments paid to Danny because of his total disability was received by his sister, Sarah Reed, and thereafter paid over to Danny in cash payments.
4. Danny purchased a life insurance policy through Regions Bank accidental death insurance plan with an effective date of March 1, 2003, issued by Monumental providing for $150,000.00 for accidental death benefits.
5. Danny paid the monthly premiums to Monumental by a bank draft through Regions Bank in the amount of $15.00 per month with the first premium being paid on March 4, 2003.
6. Danny possessed no monies other than monies received by him through his SSI payments and gifts from family members at the time of the purchase of the life insurance policy on his life through Monumental.
7. Those funds on deposit on March 4, 2003, in Danny’s account with Regions Bank was the separate property of Danny.
8. Danny had no community property monies at the time of the purchase of the life insurance policy on his life with Monumental.
9. Danny designated his mother, Helen Granger, and his brother, Elijah Granger, as beneficiaries in equal shares of the life insurance proceeds to be paid under the policy issued by Monumental.
10. After Danny had purchased life insurance from Monumental on his life, he received a check from Willie Spikes, Jr., in the amount of $315.00 dated March 12, 2003, which was presumed to be community property of Danny and Karen.
11. Danny purchased a life insurance policy issued on his life by Old Line effective May 3, 2003, after Danny had in his possession those funds paid to him by Willie Spikes, Jr. in the amount of $315.00.
12. The cross-defendants proved that the life insurance policy issued by Monumental on the life of Danny was the separate property of Danny by rebutting the presumption that the same was community property by clear and convincing evidence.
13. At the time of inception of title by Danny of the Monumental policy[,] the policy was characterized as separate property because it was acquired by the use of separate property funds.
14. Cross-defendants failed to rebut the presumption that the life insurance policy purchased by Danny from Old Line during his marriage to Karen was not the community property of Danny and Karen.
This appeal followed.
Separate Property
In her first issue, Karen argues that the beneficiaries of her husband’s Monumental life insurance policy failed to prove by clear and convincing evidence that the policy was his separate property.
Standard of Review
We review a trial court’s division of property under an abuse of discretion standard. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.–Dallas 2005, pet. denied); see also Garza v. Garza, 217 S.W.3d 538, 548 (Tex. App.–San Antonio 2006, no pet.). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. A trial court’s findings of fact are reviewed for legal and factual sufficiency of the evidence under the same legal standards applied to review jury verdicts for legal and factual sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); M.D. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
However, in family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standards of review and, as a result, legal and factual sufficiency are not independent grounds of reversible error. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. Instead, they constitute factors relevant to our assessment of whether the trial court abused its discretion. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. Thus, in considering whether the trial court abused its discretion because the evidence is legally or factually insufficient, we apply a two prong test: (1) did the trial court have sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in its application of that discretion? Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. We then consider whether, based on the evidence, the trial court made a reasonable decision. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857.
We review the trial court’s conclusions of law de novo. Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.–Houston [14th Dist.] 2003, pet. denied). The standard of review for conclusions of law is whether they are correct. Id. We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Id. Thus, incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.
Applicable Law
Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006). To overcome this presumption, a party must present clear and convincing evidence that the property is separate. Id., § 3.003(b); Garza, 217 S.W.3d at 548. “Clear and convincing evidence” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam. Code Ann. § 101.007 (Vernon 2002). In order to overcome the community property presumption, the burden is on the spouse claiming certain property as separate to trace and clearly identify the property claimed to be separate. Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.–Fort Worth 2004, no pet.). A spouse’s separate property consists of the property owned or claimed by the spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent, and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Tex. Fam. Code Ann. § 3.001 (Vernon 2006).
Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Boyd, 131 S.W.3d at 612. As a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community property presumption. Garza, 217 S.W.3d at 548; Moroch, 174 S.W.3d at 855. Any doubt as to the character of property should be resolved in favor of the community estate. Garza, 217 S.W.3d at 548; Moroch, 174 S.W.3d at 856. The presumption that obtains when the marriage is dissolved applies to dissolution by death as well as divorce. Smith v. Lanier, 998 S.W.2d 324, 331 (Tex. App.–Austin 1999, pet. denied). Social security benefits are not subject to division under community property laws because the language in 42 U.S.C.A., section 407 of the Social Security Act manifests a congressional intent to preempt state law. Richard v. Richard, 659 S.W.2d 746, 747-49 (Tex. App.–Tyler 1983, no writ) (citing In re Marriage of Kelley, 64 Cal. App. 3d 82, 98, 132 Cal. Rptr. 259, 268 (1976)). The provisions of section 407 of the Social Security Act apply to Supplemental Security Income benefits to the same extent pursuant to section 1383(d)(1) of the Social Security Act. See Social Security Act, 42 U.S.C.A. § 1383(d)(1) (West, Westlaw through Feb. 2006).
Analysis
At trial, Karen testified that she and Danny were separated about one year before his death on October 27, 2003. When they married, Danny worked at the Atkinson Candy Kitchen and did carpentry work in the evenings and on weekends. About a year after they were married, Danny quit working at the Candy Kitchen and began receiving SSI, but continued to work as a carpenter. Karen agreed that Danny’s SSI check went to his sister, Sarah Reed, on the first of every month. Karen stated that, most of the time, Danny paid his child support when he received the check. She denied that Danny relied upon his family for support or that he was living with his mother when he died. Other than the $315.00 check from Willie Spikes, Jr., Karen had no other documentation regarding any monies that Danny earned in the year after they separated. Karen admitted that Danny borrowed money from her at times after they separated. Although Karen stated that she saw people pay Danny money for carpentry work, she admitted that this occurred before their separation. She acknowledged that she did not have access to Danny’s bank accounts.
Willie Spikes, Jr. testified that, in March of 2003, he hired Danny to remodel his residence. As payment for the work, Spikes wrote a check to Danny in the amount of $315.00 on March 12, 2003. Danny’s bank records show that he deposited $200.00 of this check into his Bank of America account on March 13, 2003. This check was deposited after Regions Bank drafted the Monumental premium on March 4, 2003. Spikes also testified that while Danny worked for him, people would frequently approach Danny asking him to perform carpentry jobs for them. Two other witnesses testified that Danny performed carpentry work for them, but admitted that he did the work about two months before his death on October 27, 2003.
Sarah Reed, Danny’s sister, testified that she helped him obtain SSI benefits because he suffered from schizophrenia. Sarah stated that Danny received a check each month for SSI benefits in the year before his death, but that she handled his funds. Sarah stated that when she received Danny’s SSI check, she either deposited it into her account or cashed the check. Because she advanced Danny monies “all of the time,” she would deduct the amount advanced from his SSI check and give him the rest of it. She denied that Danny was able to perform carpentry work in the year before he died. At that time, she stated that any work Danny might have done would have been minimal because he was very sick. Sarah had no knowledge of any work that Danny performed from November 2000 to the date of Spikes’s check which would have gained him any income. As far as she knew, Danny had no other funds from which to purchase life insurance besides his SSI check.
Sarah stated that Danny lived with their mother and did not pay rent. Nor did he have the money to help pay for his mother’s utilities. She testified that her mother and all of their siblings gave Danny money because he was always “broke.” To her knowledge, Danny spent most of the last year of his life at home and did not work for any extended period of time. She stated that Danny paid Karen child support after their separation and, to the best of her knowledge, it was paid from his SSI benefits.
Elijah Granger, Danny’s brother, testified that he lived next door to his mother and Danny. He agreed that Danny suffered from schizophrenia and had long periods of depression. Other than the time Danny worked for Spikes, Elijah was not aware of any time that Danny had any kind of employment for Spikes or anyone else during the last months of his life. Because he lived next door to his mother and Danny, Elijah saw Danny daily. Elijah stated that most of the time Danny would be sitting in his “studio,” playing his guitar. He was not aware that Danny performed any work for Spikes, although he stated that Danny did practice his guitar with Spikes, who was also a musician. The only money he knew Danny had during the last year of his life that would have allowed him to purchase life insurance was his SSI check. Almost every time Elijah saw Danny, he was “broke” and needed money. If Danny needed help, such as gas money or money to go to the store, he provided it. Suzie Anna Williams, Danny’s sister, testified that Danny was always “broke.” She was not aware that he worked regularly during the last year of his life. Other than his SSI check, Suzie did not believe Danny had any funds to pay for insurance premiums.
Regarding Danny’s Regions Bank account, the evidence showed that he had no deposits over $200.00 for the months from April of 2002 through November of 2002. During these months, his account was frequently overdrawn. When he deposited $500.00 in December of 2003, his account had a balance of $1.98. At the beginning of January, the account had a balance of $0.97. He deposited $20.00 on February 4, 2003, leaving a balance of $15.97. In February, Danny made two other deposits totaling $170.00. At the time the Monumental premium was drafted on March 4, 2003, the account had a balance of $52.04. At the same time, the balance in his bank account with Bank of America was $18.92. At the end of December 2002, his Bank of America account had a $20.42 balance, although he deposited $500.00 on December 4, 2002. Danny’s Bank of America account was overdrawn for almost the entire month of January 2003, and he made only three deposits totaling $50.00 from January 2003 until March 12, 2003. The evidence also shows that Sarah gave Danny a check in the amount of $452.00 on January 30, 2003 and that Danny paid Karen $500.00 on February 28, 2003. None of Sarah’s deposit slips from January through March 2003 match the amount of Danny’s SSI check.
Because the Monumental policy was purchased during the marriage, the policy is presumed to be community property. See Tex. Fam. Code Ann. § 3.003(a). However, Danny’s relatives with knowledge of his financial matters testified that he had no income from approximately October 2002 to March 4, 2003 other than his SSI benefits or their gifts to him, both of which were his separate property. See Tex. Fam. Code Ann. § 3.001; Richard, 659 S.W.2d at 747-49. Further, they denied that he worked as a carpenter regularly during the last year of his life and said he was usually “broke.” Although Karen disputed their testimony, we note that, in a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.–Houston [1st Dist.] 1992, writ denied). As fact finder, the court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. The trial court could have believed Elijah and Sarah, relatives who lived close to Danny during the last year of his life, and disbelieved Karen from whom he had been separated.
The only documented community property income Danny received was earned after he purchased the Monumental policy. His Regions Bank account had only a nominal balance at the beginning of January 2003 and the deposits in January and February of 2003 were never documented as being anything other than SSI benefits or gifts from his family. Although Sarah’s account did not show that she deposited Danny’s SSI check in February or March of 2003, she could have given him cash from those checks as reflected by her testimony. Further, Danny’s Bank of America account was either overdrawn or showed little activity between January and March 4, 2003. Because Danny’s relatives testified that he did not have any income other than SSI and gifts from family from approximately October 2002 to March 4, 2003 and his bank records did not document any such income, there was sufficient evidence to rebut the community property presumption and the trial court did not abuse its discretion in finding the Monumental policy to be Danny’s separate property. See Garza, 217 S.W.3d at 548-49; Moroch, 174 S.W.3d at 855-57. Accordingly, we overrule Karen’s first issue. Because our holding on Karen’s first issue is dispositive, we need not consider her remaining issues.
Disposition
The judgment of the trial court is affirmed.
SAM GRIFFITH
Justice
Opinion delivered September 26, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
Appeal from 159th District Court of Angelina County
OPINION
Appellant Karen Granger appeals the trial court’s judgment denying her claim to one-half of a life insurance policy purchased by her deceased husband. In three issues, Karen argues that the beneficiaries of her husband’s life insurance policy failed to prove by clear and convincing evidence that the policy was his separate property and that, if the policy was community property, the gift of the proceeds was a fraud on the community estate, entitling her to an appropriate remedy.
Background
Karen and Danny Granger were married on May 24, 1999 and had two children during the marriage. In 2003, Danny purchased two life insurance policies, one from Monumental Life Insurance Company in the amount of $150,000.00 and the other from Old Line Life Insurance Company of America in the amount of $100,000.00. Danny named his mother, Helen Granger, and his brother, Elijah Granger, as beneficiaries of the Monumental policy. He named his mother, four brothers, and two sisters as beneficiaries of the Old Line policy. Danny paid the premiums for both policies through automatic drafts from his Regions Bank account. The first Monumental policy premium was drafted on March 4, 2003 in the amount of $15.00 and the first Old Line policy premium was drafted in May of 2003. Danny died on October 27, 2003. After his death, Monumental distributed the proceeds of its policy to Helen Granger and Elijah Granger.
On March 22, 2004, Old Line filed suit, seeking to deposit funds in the court’s registry to resolve conflicting claims to the proceeds of its insurance policy. Karen, Helen, and Danny’s four brothers and two sisters were named defendants. Karen filed a cross action against Danny’s mother, four brothers, and two sisters, claiming that Danny’s gifts of her one-half community interest in the policies constituted fraud on her and on the community estate. The trial court ordered that Old Line’s policy proceeds be deposited into the registry of the court. After a bench trial, the trial court found that Danny had community funds in his possession when he purchased the Old Line policy and that one-half of the policy was Karen’s community property. However, the trial court found that Danny used separate property funds to purchase the Monumental policy and, thus, the policy was Danny’s separate property. The trial court ordered that Karen recover one-half of the proceeds of the Old Line policy, but that she take nothing on her claims regarding the Monumental policy. The trial court also ordered that Danny’s mother, four brothers, and two sisters recover the other one-half of the proceeds of the Old Line policy.
In its findings of fact and conclusions of law, the trial court stated as follows:
1. Danny and Karen were married on May 24, 1999, and ceased to live together as husband and wife approximately one year before his death as a result of an auto accident on or about October 27, 2003, in Lufkin, Angelina County, Texas.
2. Danny was totally disabled as determined by the Social Security Administration as of June 22, 2000, and was awarded Supplemental Security Income (“SSI”) which was paid monthly to him with payments being made to Sarah Reed for Danny beginning July 1, 2000.
3. Danny received $457.00 in SSI payments for each month during the year of 2003, through the month of his death in October 2003. The SSI payments paid to Danny because of his total disability was received by his sister, Sarah Reed, and thereafter paid over to Danny in cash payments.
4. Danny purchased a life insurance policy through Regions Bank accidental death insurance plan with an effective date of March 1, 2003, issued by Monumental providing for $150,000.00 for accidental death benefits.
5. Danny paid the monthly premiums to Monumental by a bank draft through Regions Bank in the amount of $15.00 per month with the first premium being paid on March 4, 2003.
6. Danny possessed no monies other than monies received by him through his SSI payments and gifts from family members at the time of the purchase of the life insurance policy on his life through Monumental.
7. Those funds on deposit on March 4, 2003, in Danny’s account with Regions Bank was the separate property of Danny.
8. Danny had no community property monies at the time of the purchase of the life insurance policy on his life with Monumental.
9. Danny designated his mother, Helen Granger, and his brother, Elijah Granger, as beneficiaries in equal shares of the life insurance proceeds to be paid under the policy issued by Monumental.
10. After Danny had purchased life insurance from Monumental on his life, he received a check from Willie Spikes, Jr., in the amount of $315.00 dated March 12, 2003, which was presumed to be community property of Danny and Karen.
11. Danny purchased a life insurance policy issued on his life by Old Line effective May 3, 2003, after Danny had in his possession those funds paid to him by Willie Spikes, Jr. in the amount of $315.00.
12. The cross-defendants proved that the life insurance policy issued by Monumental on the life of Danny was the separate property of Danny by rebutting the presumption that the same was community property by clear and convincing evidence.
13. At the time of inception of title by Danny of the Monumental policy[,] the policy was characterized as separate property because it was acquired by the use of separate property funds.
14. Cross-defendants failed to rebut the presumption that the life insurance policy purchased by Danny from Old Line during his marriage to Karen was not the community property of Danny and Karen.
This appeal followed.
Separate Property
In her first issue, Karen argues that the beneficiaries of her husband’s Monumental life insurance policy failed to prove by clear and convincing evidence that the policy was his separate property.
Standard of Review
We review a trial court’s division of property under an abuse of discretion standard. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.–Dallas 2005, pet. denied); see also Garza v. Garza, 217 S.W.3d 538, 548 (Tex. App.–San Antonio 2006, no pet.). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. A trial court’s findings of fact are reviewed for legal and factual sufficiency of the evidence under the same legal standards applied to review jury verdicts for legal and factual sufficiency of the evidence. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); M.D. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991).
However, in family law cases, the abuse of discretion standard of review overlaps with the traditional sufficiency standards of review and, as a result, legal and factual sufficiency are not independent grounds of reversible error. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. Instead, they constitute factors relevant to our assessment of whether the trial court abused its discretion. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. Thus, in considering whether the trial court abused its discretion because the evidence is legally or factually insufficient, we apply a two prong test: (1) did the trial court have sufficient evidence upon which to exercise its discretion, and (2) did the trial court err in its application of that discretion? Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857. We then consider whether, based on the evidence, the trial court made a reasonable decision. Garza, 217 S.W.3d at 549; Moroch, 174 S.W.3d at 857.
We review the trial court’s conclusions of law de novo. Material P’ships, Inc. v. Ventura, 102 S.W.3d 252, 257 (Tex. App.–Houston [14th Dist.] 2003, pet. denied). The standard of review for conclusions of law is whether they are correct. Id. We will uphold conclusions of law on appeal if the judgment can be sustained on any legal theory the evidence supports. Id. Thus, incorrect conclusions of law do not require reversal if the controlling findings of fact support the judgment under a correct legal theory. Id.
Applicable Law
Property possessed by either spouse during or on dissolution of marriage is presumed to be community property. Tex. Fam. Code Ann. § 3.003(a) (Vernon 2006). To overcome this presumption, a party must present clear and convincing evidence that the property is separate. Id., § 3.003(b); Garza, 217 S.W.3d at 548. “Clear and convincing evidence” means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established. Tex. Fam. Code Ann. § 101.007 (Vernon 2002). In order to overcome the community property presumption, the burden is on the spouse claiming certain property as separate to trace and clearly identify the property claimed to be separate. Boyd v. Boyd, 131 S.W.3d 605, 612 (Tex. App.–Fort Worth 2004, no pet.). A spouse’s separate property consists of the property owned or claimed by the spouse before marriage, the property acquired by the spouse during marriage by gift, devise, or descent, and the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage. Tex. Fam. Code Ann. § 3.001 (Vernon 2006).
Tracing involves establishing the separate origin of the property through evidence showing the time and means by which the spouse originally obtained possession of the property. Boyd, 131 S.W.3d at 612. As a general rule, mere testimony that property was purchased with separate funds, without any tracing of the funds, is insufficient to rebut the community property presumption. Garza, 217 S.W.3d at 548; Moroch, 174 S.W.3d at 855. Any doubt as to the character of property should be resolved in favor of the community estate. Garza, 217 S.W.3d at 548; Moroch, 174 S.W.3d at 856. The presumption that obtains when the marriage is dissolved applies to dissolution by death as well as divorce. Smith v. Lanier, 998 S.W.2d 324, 331 (Tex. App.–Austin 1999, pet. denied). Social security benefits are not subject to division under community property laws because the language in 42 U.S.C.A., section 407 of the Social Security Act manifests a congressional intent to preempt state law. Richard v. Richard, 659 S.W.2d 746, 747-49 (Tex. App.–Tyler 1983, no writ) (citing In re Marriage of Kelley, 64 Cal. App. 3d 82, 98, 132 Cal. Rptr. 259, 268 (1976)). The provisions of section 407 of the Social Security Act apply to Supplemental Security Income benefits to the same extent pursuant to section 1383(d)(1) of the Social Security Act. See Social Security Act, 42 U.S.C.A. § 1383(d)(1) (West, Westlaw through Feb. 2006).
Analysis
At trial, Karen testified that she and Danny were separated about one year before his death on October 27, 2003. When they married, Danny worked at the Atkinson Candy Kitchen and did carpentry work in the evenings and on weekends. About a year after they were married, Danny quit working at the Candy Kitchen and began receiving SSI, but continued to work as a carpenter. Karen agreed that Danny’s SSI check went to his sister, Sarah Reed, on the first of every month. Karen stated that, most of the time, Danny paid his child support when he received the check. She denied that Danny relied upon his family for support or that he was living with his mother when he died. Other than the $315.00 check from Willie Spikes, Jr., Karen had no other documentation regarding any monies that Danny earned in the year after they separated. Karen admitted that Danny borrowed money from her at times after they separated. Although Karen stated that she saw people pay Danny money for carpentry work, she admitted that this occurred before their separation. She acknowledged that she did not have access to Danny’s bank accounts.
Willie Spikes, Jr. testified that, in March of 2003, he hired Danny to remodel his residence. As payment for the work, Spikes wrote a check to Danny in the amount of $315.00 on March 12, 2003. Danny’s bank records show that he deposited $200.00 of this check into his Bank of America account on March 13, 2003. This check was deposited after Regions Bank drafted the Monumental premium on March 4, 2003. Spikes also testified that while Danny worked for him, people would frequently approach Danny asking him to perform carpentry jobs for them. Two other witnesses testified that Danny performed carpentry work for them, but admitted that he did the work about two months before his death on October 27, 2003.
Sarah Reed, Danny’s sister, testified that she helped him obtain SSI benefits because he suffered from schizophrenia. Sarah stated that Danny received a check each month for SSI benefits in the year before his death, but that she handled his funds. Sarah stated that when she received Danny’s SSI check, she either deposited it into her account or cashed the check. Because she advanced Danny monies “all of the time,” she would deduct the amount advanced from his SSI check and give him the rest of it. She denied that Danny was able to perform carpentry work in the year before he died. At that time, she stated that any work Danny might have done would have been minimal because he was very sick. Sarah had no knowledge of any work that Danny performed from November 2000 to the date of Spikes’s check which would have gained him any income. As far as she knew, Danny had no other funds from which to purchase life insurance besides his SSI check.
Sarah stated that Danny lived with their mother and did not pay rent. Nor did he have the money to help pay for his mother’s utilities. She testified that her mother and all of their siblings gave Danny money because he was always “broke.” To her knowledge, Danny spent most of the last year of his life at home and did not work for any extended period of time. She stated that Danny paid Karen child support after their separation and, to the best of her knowledge, it was paid from his SSI benefits.
Elijah Granger, Danny’s brother, testified that he lived next door to his mother and Danny. He agreed that Danny suffered from schizophrenia and had long periods of depression. Other than the time Danny worked for Spikes, Elijah was not aware of any time that Danny had any kind of employment for Spikes or anyone else during the last months of his life. Because he lived next door to his mother and Danny, Elijah saw Danny daily. Elijah stated that most of the time Danny would be sitting in his “studio,” playing his guitar. He was not aware that Danny performed any work for Spikes, although he stated that Danny did practice his guitar with Spikes, who was also a musician. The only money he knew Danny had during the last year of his life that would have allowed him to purchase life insurance was his SSI check. Almost every time Elijah saw Danny, he was “broke” and needed money. If Danny needed help, such as gas money or money to go to the store, he provided it. Suzie Anna Williams, Danny’s sister, testified that Danny was always “broke.” She was not aware that he worked regularly during the last year of his life. Other than his SSI check, Suzie did not believe Danny had any funds to pay for insurance premiums.
Regarding Danny’s Regions Bank account, the evidence showed that he had no deposits over $200.00 for the months from April of 2002 through November of 2002. During these months, his account was frequently overdrawn. When he deposited $500.00 in December of 2003, his account had a balance of $1.98. At the beginning of January, the account had a balance of $0.97. He deposited $20.00 on February 4, 2003, leaving a balance of $15.97. In February, Danny made two other deposits totaling $170.00. At the time the Monumental premium was drafted on March 4, 2003, the account had a balance of $52.04. At the same time, the balance in his bank account with Bank of America was $18.92. At the end of December 2002, his Bank of America account had a $20.42 balance, although he deposited $500.00 on December 4, 2002. Danny’s Bank of America account was overdrawn for almost the entire month of January 2003, and he made only three deposits totaling $50.00 from January 2003 until March 12, 2003. The evidence also shows that Sarah gave Danny a check in the amount of $452.00 on January 30, 2003 and that Danny paid Karen $500.00 on February 28, 2003. None of Sarah’s deposit slips from January through March 2003 match the amount of Danny’s SSI check.
Because the Monumental policy was purchased during the marriage, the policy is presumed to be community property. See Tex. Fam. Code Ann. § 3.003(a). However, Danny’s relatives with knowledge of his financial matters testified that he had no income from approximately October 2002 to March 4, 2003 other than his SSI benefits or their gifts to him, both of which were his separate property. See Tex. Fam. Code Ann. § 3.001; Richard, 659 S.W.2d at 747-49. Further, they denied that he worked as a carpenter regularly during the last year of his life and said he was usually “broke.” Although Karen disputed their testimony, we note that, in a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.–Houston [1st Dist.] 1992, writ denied). As fact finder, the court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. The trial court could have believed Elijah and Sarah, relatives who lived close to Danny during the last year of his life, and disbelieved Karen from whom he had been separated.
The only documented community property income Danny received was earned after he purchased the Monumental policy. His Regions Bank account had only a nominal balance at the beginning of January 2003 and the deposits in January and February of 2003 were never documented as being anything other than SSI benefits or gifts from his family. Although Sarah’s account did not show that she deposited Danny’s SSI check in February or March of 2003, she could have given him cash from those checks as reflected by her testimony. Further, Danny’s Bank of America account was either overdrawn or showed little activity between January and March 4, 2003. Because Danny’s relatives testified that he did not have any income other than SSI and gifts from family from approximately October 2002 to March 4, 2003 and his bank records did not document any such income, there was sufficient evidence to rebut the community property presumption and the trial court did not abuse its discretion in finding the Monumental policy to be Danny’s separate property. See Garza, 217 S.W.3d at 548-49; Moroch, 174 S.W.3d at 855-57. Accordingly, we overrule Karen’s first issue. Because our holding on Karen’s first issue is dispositive, we need not consider her remaining issues.
Disposition
The judgment of the trial court is affirmed.
SAM GRIFFITH
Justice
Opinion delivered September 26, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
MTM child support: Mother raises 37 issues in pro se appeal; loses on all of them - mostly for failure to preserve error in the trial court
Waco Court of Appeals goes to great length to explain the law in this suit to modify child support and provides guidance for trial and appellate practitioners on what errors to avoid. - Texas Supreme Court has since struck unhappy appellant's petition for review.
Cathy Burgess v. Mohammed Feghhi, No. 12-04-00367-CV (Tex.App.- Waco, Jul 31, 2007)(Opinion by Hon. Hoyle). Appeal from 321st District Court of Smith County
MEMORANDUM OPINION
Cathy Burgess appeals from an order for modification of child support. Burgess presents thirty-seven issues for our consideration. We affirm.
Background
Burgess and Mohammad Feghhi are the parents of S.A.B., born August 2, 1988. On July 30, 1991, a Bexar County trial court modified the existing child support order and ordered that Feghhi pay Burgess child support of $175.00 a month. On June 23, 2003, the Attorney General filed a motion to modify child support, which included a request that Feghhi produce certain financial and health insurance information. The Attorney General also filed a motion to transfer the suit to Smith County, S.A.B.’s residence. The trial court granted the motion and transferred the suit to Smith County.
On May 13, 2004, an assistant attorney general and Feghhi’s counsel attended a hearing on the motion to modify. The Assistant Attorney General stated that he had not received the financial information he had requested from Feghhi and had not informed Burgess of the hearing. As a result, the Assistant Attorney General and Feghhi’s counsel agreed, in open court, to reset the hearing for May 27, 2004. Fegghi agreed to produce the documents requested by the Assistant Attorney General. On May 27, 2004, the trial court conducted a brief hearing on a motion for enforcement against Burgess. The motion to modify was not addressed.
On June 4, 2004, Burgess filed an “open records” request that Feghhi produce documents on “any and all open records as described by Texas law.” On the same date, she filed a request for Feghhi to produce documents and things.
On June 28, 2004, the trial court held a hearing on the Attorney General’s motion to modify, at which all parties were present. The Assistant Attorney General stated that he and Feghhi had agreed to modify Feghhi’s child support obligation to $575.00 a month beginning June 1, 2004. However, he stated that Burgess was not a party to the agreement and that she believed Feghhi should pay more child support. At that point, the trial court observed that S.A.B. was in the courtroom and ordered that she leave.
Burgess stated that Feghhi made more money than he had disclosed, but she was not sure how much he should pay in child support. She also told the trial court that Feghhi had not produced documentation that she had requested. Feghhi responded that the request for production was sent less than thirty days before the hearing, that his responses were not due until July 4, that the requests were not clear or specific, and that all the requests were objectionable. After examining Burgess’s request for production, the trial court stated that some of the requests were proper, as modified by the court, but that Burgess could not require production of documents regarding businesses or properties that were owned by third parties, specifically Feghhi’s sister and brother.
Feghhi stated that he had agreed to pay $575.00 a month in child support and produced his 2002 and 2003 income tax returns. Fegghi’s attorney informed the trial court that Feghhi had two other children to support. The Assistant Attorney General stated that he considered depreciation in his calculations for the negotiated settlement for child support along with Feghhi’s tax returns and information relating to his properties and payments. Feghhi’s attorney believed he had shown Burgess records regarding real estate or houses that Feghhi had purchased. He explained, without objection, that Fegghi was a resident of the United States, but had been born in Iran. According to Feghhi’s attorney, Feghhi’s sister transferred monies from Iran through a third country to an account in Feghhi’s name to purchase a house. Feghhi produced records from his sister’s bank showing the transfer of monies and copies of wire transfers showing that the house Feghhi occupied was owned by his sister. According to Fegghi’s attorney, records may indicate that Feghhi owned certain monies or properties that were, in fact, owned by members of his family. In response, Burgess stated that Feghhi owned the property even though he claimed it was his sister’s. She pointed out that Feghhi was in a cash business. She also stated that Feghhi’s income tax returns never changed and that since 1990, he had claimed only $45,000 in earnings each year. However, Burgess produced no evidence to support her argument. Although Burgess complained about the amount of child support in the past, both Feghhi and the Assistant Attorney General denied that retroactive child support was an issue. The trial court requested that Feghhi produce documentation indicating the cost of goods sold in his business and concluded the hearing.
On June 28, Feghhi filed his answers to Burgess’s request for production, objecting to a number of the requests and asking for a hearing on his objections.
On September 8, the trial court conducted the final hearing on the Attorney General’s motion to modify. On that same date, before the hearing, Burgess filed numerous pleadings, including a pleading entitled “Concerning Motion to Quash” in response to Feghhi’s motion to quash and a request for production of documents and things. She also filed a pleading containing a motion to compel “all discovery,” to exclude and dismiss Feghhi’s motion to quash and assess sanctions, to penalize Feghhi for not producing discovery, to take judicial notice of documents, and to order the rest of discovery. The pleading included a request that Feghhi reimburse her for obtaining discovery. Burgess also filed a motion to amend “the proceedings” to include claims of fraud, misrepresentation, personal injury, harassment, deceit, and retaliation against Feghhi.
Feghhi and his attorney appeared at the hearing by telephone without objection. Feghhi’s attorney told the court that he had produced documents to support Feghhi’s income tax returns. The trial court stated that Feghhi also produced a profit and loss statement. The Assistant Attorney General responded that this documentation, which he had examined, did not change their agreement on child support. However, Burgess believed otherwise. She stated that the information provided by Feghhi was not complete because he provided documentation regarding only one of his businesses, not all of them. Feghhi’s attorney stated that Feghhi’s businesses were identified by different names because they were located on different properties. Burgess stated that she believed Feghhi earned approximately $1 million per year.
Regarding discovery, Burgess stated that she received some of the documents she requested. Nonetheless, she claimed that Feghhi “frauded” her by not answering discovery. Feghhi’s attorney told the court about the additional discovery requests Burgess had filed before the hearing. The trial court told Burgess that she could not obtain discovery after the case closed. In response, Burgess stated that she had filed proper pleadings that day, but never elaborated on the content of those pleadings. She protested that she had not had an opportunity to present her case. She stated that “he,” indicating Feghhi or his attorney, kept “butting in,” that he “started” the case, and that the rules of court were different from what she had supposed.
Burgess also complained about a lack of documentation regarding Feghhi’s sister’s financial activities relating to Feghhi and the transfer of monies. Burgess objected to Feghhi’s argument that certain properties were his sister’s because his sister was not present at the hearing. She stated that Feghhi’s profit and loss statement reflected that he earned approximately $488,000 annually. Burgess also stated that Feghhi did not return S.A.B.’s medical bills as ordered and, thus, he was in contempt of court. She believed he owed her approximately $6,000 a month in child support. The trial court stated that this amount was over the child support guidelines. Burgess continued arguing, repeating her previous arguments at times.
During the hearing, Burgess attempted to file certain documents, but the trial court refused to accept them stating that they were improper for filing. The trial court acknowledged that Burgess had filed a new lawsuit or petition that day, but stated that it could not take up the petition at the hearing. However, the trial court agreed to take a box of documents that Burgess had referred to during the hearing and examine them before ruling. Feghhi agreed to return the originals of S.A.B.’s medical bills.
On November 9, 2004, the trial court found that Feghhi’s gross income was $5,000 a month and ordered that Feghhi provide health insurance. A day later, the trial court ordered that child support be made retroactive to the date Feghhi was served with the motion to modify. On November 15, the trial court signed an order finding that Feghhi’s monthly net resources were $3,569.33, ordering that Feghhi pay Burgess current child support of $571.09 each month beginning November 1, 2003, and ordering Feghhi to obtain health insurance for S.A.B. Burgess appealed pro se. Feghhi did not file a brief.1
Discovery (Issues 1-9)
Burgess contends that the trial court abused its discretion by denying or limiting discovery concerning Feghhi’s ability to pay child support and by not compelling discovery about Feghhi’s family’s assets to show fraudulent transfers. Burgess also argues that the trial court’s abuse of discretion in denying or limiting discovery was material to her case, and denied her “a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud.” This, she contends, caused an incorrect, and lower, determination of child support. Further, she argues that the trial court abused its discretion by refusing to permit additional discovery at or after the final hearing and by failing to require compliance with sections 154.063 and 154.185 of the Texas Family Code. She also contends that Feghhi had a duty to produce the discovery she requested immediately after the discovery was sent because her request was pursuant to the Texas Family Code, and not the general discovery rules. Burgess argues further that Feghhi waived his objections to her discovery because they were not timely made, and that he failed to produce discovery. Finally, she argues that the trial court abused its discretion by not sanctioning Feghhi’s attorney for failing to produce discovery.
Denying and/or Limiting Discovery of Ability to Pay Child Support
We review a trial court’s ruling on discovery requests for an abuse of discretion. Wheeler v. Methodist Hosp., 95 S.W.3d 628, 643 (Tex. App.–Houston [1st Dist.] 2002, no pet.). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Id. at 241-42. In other words, we must determine whether the act was arbitrary or unreasonable. Id. at 242. The mere fact that a trial judge may decide a matter within her discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.
A trial court’s discovery decision is an abuse of discretion when
1. the appellate court would not be able to cure the trial court’s discovery error, such as when privileged information or trade secrets would be revealed or a disproportionate burden would be imposed on the producing party to furnish patently irrelevant or duplicative documents;
2. the party’s ability to present a viable claim or defense is compromised or vitiated by the erroneous discovery ruling to the extent that it is effectively denied the ability to develop the merits of its case; or
3. the trial court’s discovery order disallows discovery which cannot be made a part of the appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial court’s error.
Wheeler, 95 S.W.3d at 644.
At the June 28 hearing, Feghhi produced his 2002 and 2003 income tax returns and copies of wire transfers showing that the house he occupied was owned by his sister. He also stated that he had shown Burgess records regarding real estate or houses he had purchased. Further, after examining Burgess’s June 4 request for production, the trial court stated that some of the requests were proper, as modified by the court, but that Burgess could not require production of documents regarding businesses or properties that were owned by third parties, specifically Feghhi’s sister and brother. At the September 8 hearing, Feghhi stated that he had produced the documents ordered by the trial court, including documentation to support his income tax returns and a profit and loss statement.2
From the clerk’s record and Burgess’s own argument, it appears that she received some of the documents the trial court ordered Feghhi to produce that were identified in the June 4 request for production. Feghhi also produced other documents as ordered by the trial court. Burgess wanted Feghhi to produce all of his profit and loss statements from all of his businesses and to produce documents that reflected Feghhi was receiving money from “outside.” According to Feghhi’s attorney, his profit and loss statement reflected that his businesses were classified under one name even though they were on different city lots under different names. The trial court accepted this explanation and did not require Feghhi to produce any other documents.
Feghhi produced the documents the trial court ordered regarding his income, financial status, and properties. The trial court considered the arguments of the parties, reviewed the documents Feghhi produced, and concluded that it had sufficient information before it to rule on the Attorney General’s motion to modify. Based upon our review of the record, we cannot conclude that the trial court abused its discretion by denying Burgess the opportunity to conduct additional discovery relating to Feghhi’s ability to pay child support. See id.
Additionally, Burgess complains that the trial court abused its discretion by failing to compel discovery about Feghhi’s family’s assets to show fraudulent transfers. The trial court ruled that Feghhi was not required to produce documents regarding businesses or properties owned by his sister and brother. The Texas Rules of Civil Procedure contain no requirement that a party obtain a nonparty’s personal financial information and produce the information in response to a discovery request. Thus, the trial court’s failure to compel the requested discovery was not an abuse of discretion. Burgess also argues that the trial court’s abuse of discretion in denying or limiting discovery was material to her case, and denied her a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud. This, she contends, caused an incorrect, and lower, determination of child support. We have concluded that the trial court did not abuse its discretion in denying or limiting discovery regarding Feghhi’s ability to pay child support. Because the trial court did not abuse its discretion in denying or limiting Burgess’s discovery, it did not deny her “a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud.”
Refusing to Permit Additional Discovery at or after Final Hearing
The scope of discovery is largely within the discretion of the trial court, and the court’s action cannot be set aside unless there is a clear showing of abuse of discretion. Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995); Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 652 (Tex. App.–Houston [14th Dist.] 1987, writ denied). To support a reversal, the trial court’s refusal to permit discovery must have been such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment. Lovelace, 733 S.W.2d at 652.
In cases under the Texas Family Code, the discovery period begins the date a cause is filed and continues until thirty days before the date set for trial. See Tex. R. Civ. P. 190.3(b)(1)(A).3 Thus, the discovery period in this case ended, at the latest, thirty days before the September 8 hearing. The clerk’s record shows that Burgess filed a second request for production of documents and things on September 8, the date of the final hearing. Because Burgess filed this discovery request after the discovery period ended, the trial court did not abuse its discretion in refusing to permit the discovery. See Tex. R. Civ. P. 190.3(b)(1)(A).
Failing to Require Compliance with the Texas Family Code
Section 154.063 of the Texas Family Code requires a party to furnish information sufficient to accurately identify that party’s net resources and ability to pay child support and to produce copies of income tax returns for the past two years, a financial statement, and current pay stubs. Tex. Fam. Code Ann. § 154.063 (Vernon 2002). Section 154.185 requires the trial court to order a parent providing health insurance to furnish certain information to the obligee, obligor, or child support agency not later than the thirtieth day after the date the notice of rendition of the order is received. Id. § 154.185 (Vernon 2002).
As a prerequisite to presenting a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule on the request, objection, or motion, and the complaining party must have objected to the refusal. Tex. R. App. P. 33.1(a)(2).
Pursuant to section 154.063, Feghhi produced his income tax returns for the past two years and a financial, or profit and loss, statement. See Tex. Fam. Code Ann. § 154.063. According to the record, he did not produce his current pay stubs. However, Burgess did not timely object during either hearing to Feghhi’s failure to produce his pay stubs nor did she file a motion to compel production of his pay stubs. See Tex. R. App. P. 33.1(a)(1), (2). Thus, Burgess has waived this complaint.
The final modification order required Feghhi to furnish Burgess and the Attorney General documents regarding the health insurance policy he obtained covering S.A.B. See Tex. Fam. Code Ann. § 154.185. Burgess’s argument on appeal consists of only a conclusory statement that Feghhi failed to send the medical insurance documents to her or the Attorney General’s office after the final hearing. The jurisdiction of this court is, except where otherwise specially provided, appellate only. Tex. Gov’t Code Ann. § 22.220(a) (Vernon 2004); see also Thorp Springs Christian College v. Dabney, 37 S.W.2d 193, 196 (Tex. Civ. App.–Fort Worth 1931, no writ). The scope of our appellate jurisdiction is limited to review of decisions by a lower court. See United Am. Ins. Co. v. McPhail, 435 S.W.2d 624, 625-26 (Tex. Civ. App.–Tyler 1968, no writ); see also Walker v. Koger, 131 S.W.2d 1074, 1075 (Tex. Civ. App.–Eastland 1939, writ dism’d) (stating that the subject matter of an assignment of error is some ruling or action of the court). Here, Burgess complains of Feghhi’s failure to comply with the trial court’s final order, not a decision of the trial court. Because we can review only decisions of a lower court, we are without jurisdiction to address this issue.
Burgess also asserts that under section 154.063, Feghhi was required to produce discovery immediately after the request was sent, and did not have thirty days to respond. The Texas Family Code contains no specific provisions governing discovery in a suit for modification of conservatorship, possession, access, or child support. See Tex. Fam. Code Ann. §§ 156.001-.401 (Vernon 2002 & Supp. 2006). Instead, it provides that the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification. See id. § 156.004 (Vernon 2002). Burgess filed a request for production of documents and things on June 4. Rule 196.2 states that a response to a request for production of documents must be served within thirty days after service of the request. Tex. R. Civ. P. 196.2. Thus, Feghhi’s responses were not due until July 4. Feghhi produced his responses to discovery within the time specified by Rule 196.2. Therefore, Burgess’s complaint is without merit.
Waiver of Objections
Burgess contends that Feghhi waived his objections to her discovery because they were not timely made. As noted above, Feghhi timely filed his responses to Burgess’s request for production. Further, he filed his objections timely, within the time for response. See Tex. R. Civ. P. 193.2(a). Therefore, Feghhi did not waive his discovery objections.
Failure to Produce Discovery
Rule 193.4 of the Texas Rules of Civil Procedure states that any party may at any reasonable time request a hearing on an objection or claim of privilege asserted under this rule. Tex. R. Civ. P. 193.4(a). A party need not request a ruling on that party’s own objection to preserve the objection. Tex. R. Civ. P. 193.4(b). On June 28, Feghhi filed responses and objections to Burgess’s June 4 request for production of documents and things. Burgess did not request a hearing on Feghhi’s objections.4 See Tex. R. Civ. P. 193.4(a). Thus, the trial court did not have an opportunity to rule on whether Feghhi’s objections were valid. See Tex. R. Civ. P. 193.4(b). Further, on the day of the final hearing, Burgess filed a pleading that contained a motion to compel documents and things. However, she did not request that the trial court set the motion for hearing, and did not obtain a ruling from the trial court on her motion. See Tex. R. Civ. P. 193.4(a), (b). Because Burgess did not obtain a ruling on Feghhi’s objections or timely file and request a hearing on a motion to compel, she waived her complaint regarding Feghhi’s failure to produce the discovery to which he objected. See Tex. R. App. P. 33.1(a)(1), (2).
Failure to Sanction Feghhi’s Attorney
We review a trial court’s decision regarding the sanction of a party under an abuse of discretion standard. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court may enter “just” sanctions for a party’s failure to comply with a discovery order or request. See id. at 839; Tex. R. Civ. P. 215.2(b). Likewise, a trial court may impose sanctions against a party who abuses the discovery process. Tex. R. Civ. P. 215.3.
Feghhi produced his income tax returns, a profit and loss statement, documentation to support his income tax returns, and copies of wire transfers showing that the house he occupied was owned by his sister. He also produced documents in response to Burgess’s requests for production. However, at the June 28 hearing, the trial court modified some of Burgess’s requests for production and determined that Burgess could not require production of documents pertaining to businesses or properties owned by third parties, specifically Feghhi’s sister and brother. Thus, the trial court did not require Feghhi to produce all of the documents Burgess requested. Because Feghhi produced the documents the trial court required, we cannot conclude that the trial court abused its discretion by not sanctioning Feghhi’s attorney for failing to produce discovery. See Tex. R. Civ. P. 215.2(b); Cire, 134 S.W.3d at 838.
We overrule Burgess’s issues one through nine.
Continuances (Issue 10)
Burgess contends that the trial court abused its discretion by granting continuances. Specifically, she argues that she never knew about “unwanted continuances,” and that these continuances delayed her case. We review a trial court’s decision regarding a continuance under an abuse of discretion standard. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 , 800 (Tex. 2002). A trial court has wide latitude in controlling its docket, especially regarding preliminary hearings. See Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.–Houston [1st Dist.] 1994, writ denied). According to the record, the trial court granted only one continuance, and that was regarding a preliminary hearing. On May 13, 2004, the Assistant Attorney General stated that it had not received financial information from Feghhi and had not informed Burgess of the hearing. As a result, Burgess was not present. Feghhi also had not received certain information from the Assistant Attorney General until shortly before the hearing. As a result, Feghhi’s attorney and the Assistant Attorney General stated in open court that they had agreed to a continuance on the motion to modify. Under these circumstances, we cannot conclude that the trial court abused its discretion in granting the continuance of this preliminary hearing. Further, because she was not present at the hearing, Burgess was not harmed by the trial court’s decision to grant the continuance. We overrule Burgess’s issue ten.
Bias (Issue 11)
Burgess argues that the trial court was biased against her and calls our attention to the trial court’s statement during a hearing on a motion for enforcement against Burgess.5 She also contends that the trial court denied her “fair standards of law and justice or the administration of justice” and never enforced due process protections on her behalf. Burgess claims that the trial court was not fair or impartial because she allowed Feghhi’s attorney to interrupt her, allowed Feghhi to “go first,” denied her “rules of court,” denied her the ability to present her case, and failed to exercise control.
Applicable Law
Due process requires a neutral and detached hearing body or officer. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.–Corpus Christi 1993), writ dism'd, improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761, 36 L. Ed. 2d 656 (1973)). In the absence of a clear showing to the contrary, we will presume the trial court was a neutral and detached officer. Id. (citing Fielding v. State, 719 S.W.2d 361, 366 (Tex. App.–Dallas 1986, pet. ref'd)). The complaining party must show the judge acted improperly and that she suffered probable prejudice as a result. Rymer v. Lewis, 206 S.W.3d 732, 735-36 (Tex. App.–Dallas 2006, no pet.). In reaching our decision, we examine the entire record. Id. at 736.
Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994). Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id. Bias must come from an extrajudicial source and result in an opinion on the merits of the case other than what the trial court learned from participation in the case. See in re K.L.R., 162 S.W.3d 291, 312 (Tex. App.–Tyler 2005, no pet.). A trial court has the inherent power to control the disposition of cases. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). The discretion vested in the trial court over the conduct of a trial is great. Id. Further, a trial court may properly intervene to maintain control in the courtroom, expedite the trial, and to prevent what it considers to be a waste of time. Id. at 241.
Analysis
The record from the enforcement hearing shows that the Assistant Attorney General informed the trial court that the hearing involved a motion for enforcement brought by the State against Burgess. The trial court then informed Burgess that a motion for enforcement could lead to her “being in jail or being on probation which could also result in [her] going to jail.” The trial court stated that Burgess had the right to an attorney and that, if she was too poor to hire one, the court could appoint one. Burgess stated that she wanted the trial court to consider appointing her an attorney. The trial court informed Burgess that she needed to complete some paperwork for review and concluded the hearing. The trial court did not rule on the motion for enforcement, but simply informed Burgess of the consequences if the motion for enforcement was granted. See Liteky, 510 U.S. at 555, 114 S. Ct. at 1157.
At the June 28, 2004 hearing, the trial court addressed Burgess’s request for production. This eventually led to Feghhi’s attorney explaining the unusual aspects of the case, primarily involving Feghhi’s family’s problems with transferring money from Iran to the United States and how those transactions affected Feghhi’s financial documents and property records. This explanation may be what Burgess complains of as Feghhi being allowed to “go first.” After hearing arguments from Feghhi’s attorney and explanations by the Assistant Attorney General, the trial court stated that she would allow Burgess to “tell me whatever you want to tell me.” Burgess was allowed to argue, but was, admittedly, interrupted by the trial court. Most of the interruptions were a direct result of Burgess’s arguments.
In the September 8, 2004 hearing, Burgess was allowed to argue, but was interrupted by the trial court and Feghhi’s attorney regarding her allegations and arguments. She complained to the trial court that Feghhi’s attorney started the case and kept “butting in,” and also told the court that the rules of court were not what she “thought they were supposed to be.” The trial court allowed Burgess to continue her argument, which consists of approximately twenty pages of a thirty page reporter’s record. Feghhi’s attorney interrupted at least once to question documents Burgess gave to the trial court. At one point, Burgess again complained that Feghhi’s attorney was attempting to interrupt her and asked the trial court not to allow him to do so. The trial court stated that she was listening to Burgess, but that interruptions were “the way lawsuits go. Everybody gets to interrupt. It’s the way we do things.” At the end of Burgess’s argument, the trial court stated, at least twice, that Burgess was repeating the same arguments.
The record demonstrates that, contrary to Burgess’s assertions of bias and partiality, the trial court was patient, attentive, and professional. The trial court’s statements during the hearing on the motion for enforcement were merely to inform Burgess of the consequences if the motion was granted. Burgess complains about interruptions during other hearings, but these hearings were informal and involved argument only. No evidence or witnesses were presented. Further, the record indicates that the trial court exercised its broad discretion to maintain control and promote expedition of the hearings. See Dow Chem. Co., 46 S.W.3d at 241. Although Burgess complains that the trial court violated court rules, she does not specify which rules were violated, or in what manner.
Burgess also states that the trial court was biased, but she does not identify any extrajudicial source that influenced the trial court’s decision nor has she directed us to any evidence in the record from which we might conclude any such influence existed. See in re K.L.R., 162 S.W.3d at 312. Thus, in substance, she complains only of actions taken by the trial court while acting in its judicial capacity at trial. Based upon our review of the record, we conclude that Burgess has failed to make a clear showing that the trial court was biased or partial and, thus, has failed to overcome the presumption that the trial court was a neutral and detached officer. See Earley, 855 S.W.2d at 262. We overrule Burgess’s issue eleven.
New Claims (Issue 12)
Burgess contends that the trial court erred in not allowing her to “prosecute” her fraud claims. Parties may amend their pleadings and file such other pleadings as they may desire “at such time as not to operate as a surprise to the opposite party.” Tex. R. Civ. P. 63. If a pleading is offered for filing within seven days of trial or thereafter, the pleading shall be filed only after leave of court is obtained. Id. On the day of the final hearing, September 8, Burgess filed a motion to amend “the proceedings” alleging actions for fraud, misrepresentation, personal injury, harassment, deceit, and retaliation against Feghhi. Attached to the motion was a proposed petition. Burgess did not request that the trial court rule on her motion, but the court informed Burgess that she could not take up her new suit at the final hearing. See id. We construe this as a denial of Burgess’s motion.
Although Feghhi failed to object to Burgess’s motion, nothing in the record shows that he was served with a copy. Because the amendment was requested at the final hearing and the record does not show that Feghhi was served with a copy of Burgess’s motion, the trial court reasonably could have concluded that the filing of the motion operated as a surprise and denied it. See id. We overrule Burgess’s issue twelve.
Notices Pertaining to Hearings (Issues 13-14)
Burgess argues that the trial court erred or abused its discretion because she did not receive proper notices of hearings in violation of her rights of due process and equal protection. Moreover, she contends that she was not “invited” to all of the hearings in violation of fair standards of law or the administration of justice. Because she was not notified of hearings, she claims that she was denied the opportunity for discovery and right to speak and give testimony in violation of her rights of due process. Burgess also complains that Feghhi’s attorney failed to notify her that he was attending the hearings by telephone, denying her rights of due process and equal protection.
Applicable Law
An elementary and fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899, 99 L. Ed. 2d 75 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950)). Failure to give notice violates the most rudimentary demands of due process of law. Id. However, no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the appellate court concludes that the error (1) probably caused the rendition of an improper judgment or (2) probably prevented the appellant from properly presenting the case to the appellate court. Tex. R. App. P. 44.1(a).
Analysis
Although Burgess claims that she did not receive notice of all the hearings or was not “invited” to all of the hearings, the record shows that she attended all but one of the hearings.
Hearings on May 27, June 28, and September 8, 2004
According to the record, Burgess did not object to the lack of notice for the hearings that took place on May 27, June 28, or September 8, or complain that Feghhi’s attorney appeared by telephone during the September 8 hearing. By failing to object, Burgess has failed to preserve these issues for review. See Tex. R. App. P. 33.1(a)(1). Moreover, she does not explain how the lack of notice of these hearings caused the rendition of an improper judgment or prevented her from properly presenting her case to this court, particularly in light of the fact that she attended all of these hearings. See Tex. R. App. P. 44.1(a)
Hearing on May 13, 2004
Burgess did not attend the hearing held on May 13, 2004. However, the Assistant Attorney General informed the trial court that he and Feghhi’s attorney had not yet reached a settlement and that Feghhi’s attorney wanted a continuance because of scheduling problems. The Assistant Attorney General stated that he would like the case reset, particularly because he did not have Feghhi’s financial information and he had not informed the custodial parent, Burgess, of the hearing. The trial court noted that Feghhi’s attorney was not present and contacted him by telephone during the hearing. After some discussion, the Assistant Attorney General and Feghhi agreed to a continuance of the case until May 27. Feghhi also agreed to provide the requested financial information to the Attorney General and to discuss a settlement. No argument was heard or evidence presented during this hearing.
Burgess argues that because she did not receive notice of this hearing, she was denied the opportunity for discovery and the right to speak and give testimony in violation of her rights of due process. Although notice is an elementary and fundamental requirement of due process, it is a requirement only for any proceeding that “is to be accorded finality.” See Peralta, 485 U.S. at 84, 108 S. Ct. at 899. The May 13 hearing was not a final hearing – there was no argument regarding the merits of the case, there was no evidence presented during the hearing, and there was no decision regarding the outcome of the case by the trial court. Further, Burgess contends that she was prevented from conducting discovery during this hearing. However, she did not file her request for discovery from Feghhi until June 4. She also does not state how her lack of notice of this hearing probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Because the May 13 hearing was not a final hearing and Burgess failed to show how the lack of notice caused the rendition of an improper judgment, we conclude that, if the trial court erred in failing to provide notice of the May 13 hearing, the error was harmless.
We overrule Burgess’s issues thirteen and fourteen.
Witnesses (Issue 15)
Burgess argues that the trial court improperly excluded her witnesses, including S.A.B. At the June 28 hearing, the trial court observed that S.A.B. was in the courtroom. Burgess stated that she thought S.A.B. was to be sworn as a witness to testify that she had never received anything from Feghhi. The trial court stated that the courtroom was not a place for children and requested the child wait outside and be taken home. Burgess stated that S.A.B. wanted to come, but admitted telling the child that she did not believe the trial court was going to let her in the courtroom. Burgess never asked the trial court to allow S.A.B. to testify. At the September 8 hearing, Burgess’s mother attempted to speak to the trial court, but was ordered to “be quiet” because she was not in the case or before the court. According to the record, Burgess never objected that the trial court improperly excluded her witnesses. Because Burgess failed to timely object to the exclusion of her witnesses, she has waived her complaint. See Tex. R. App. P. 33.1(a)(1). We overrule Burgess’s issue fifteen.
Hearsay (Issue 16)
Burgess argues that the trial court erred in overruling her hearsay objections to Feghhi’s evidence, including his statements regarding his sister’s ownership of certain properties. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). If a party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross examination. Tex. R. Evid. 806.
At the June 28 hearing, Feghhi presented documentation showing Feghhi’s sister’s transfer of monies. Burgess did not object to those documents during the hearing. At the September 8 hearing, after Burgess argued that she had not seen the documentation that Feghhi’s sister transferred monies to him, Burgess “objected to it” because Feghhi’s sister was not at the hearing. The trial court simply said “okay,” but did not rule on Burgess’s objection. Burgess failed to timely object to the documentation regarding Feghhi’s sister’s transfer of monies, allowing these documents to be presented at the June 28 hearing without objection. She also failed to obtain a ruling on her objection during the September 8 hearing. By failing to timely object or obtain a ruling on her objection, she has waived this issue for review. See Tex. R. App. P. 33.1(a)(1), (2)(A). We overrule Burgess’s issue sixteen.
Credibility of Witnesses (Issue 17)
Burgess argues that the trial court abused its discretion when it believed Feghhi’s testimony and evidence regarding his financial status and ability to pay child support because it was false, misleading, and fraudulent. In a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.–Houston [1st Dist.] 1992, writ denied). The court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. Although Burgess argues that Feghhi’s testimony and evidence was false, misleading, and fraudulent, the record contains only the reporter’s records of the hearings and no exhibits that were admitted during the hearings. Burgess has attached a large volume of documents to her brief. However, we must determine a case on the record as filed, and may not consider documents attached as exhibits to an appellate brief. Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.–Houston [1st Dist.] 1999, no pet.).
Because the trial court was the exclusive judge of Feghhi’s credibility and Burgess has presented us with nothing but the reporter’s records without exhibits, we cannot conclude that the trial court abused its discretion by believing Feghhi’s testimony and evidence regarding his financial status and ability to pay child support. We overrule Burgess’s issue seventeen.
Exclusion of Evidence (Issue 18)
Burgess also contends that the trial court improperly excluded her evidence. We review a trial court’s evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Id. The burden is on the complaining party to present a sufficient record to the appellate court to show error requiring reversal. Est. of Veale v. Teledyne Indus., Inc., 899 S.W.2d 239, 242 (Tex. App.–Houston [1st Dist.] 1995, writ denied). Although Burgess complains that the trial court excluded her evidence, the record does not show what evidence was excluded by the trial court. The trial court accepted a box of unidentified documents on September 8 and agreed to examine them in making its ruling, but it did not admit these documents into evidence. Because Burgess did not present a bill of review on these documents, we have nothing to review. We overrule Burgess’s issue eighteen.
Retroactive Child Support (Issue 19)
Burgess argues that the trial court should have determined Feghhi’s child support from the date of his fraud or from the date of filing the motion to modify. A support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify. Tex. Fam. Code Ann. § 156.401(b) (Vernon 2002). Thus, the trial court had no authority to modify child support from the date of Feghhi’s alleged fraud or from the date the motion to modify was filed. Further, the motion to modify did not ask for retroactive child support. Thus, the trial court did not err in refusing to grant child support before the date of service of citation. We overrule Burgess’s issue nineteen.
Modification of Child Support (Issues 20-26)
Burgess contends that the trial court abused its discretion by excluding other sources of income including deemed income, bank accounts, businesses, properties, and Feghhi’s wife’s income taxes in determining Feghhi’s monthly net resources and, thus, his child support. She also argues that Feghhi misrepresented his income taxes. Further, she contends that the trial court abused its discretion in determining the number of children before the court and the percentage of his income to be paid as child support. She also contends that the trial court abused its discretion when it failed to consider additional factors in determining child support, and that the trial court did not consider the best interests of the child. Finally, she argues that the trial court should have ordered child support beyond the child’s eighteenth birthday.
Standard of Review
A court’s order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.–Houston [1st Dist.] 2003, pet. dism’d). The test for abuse of discretion is whether the trial court acted without reference to any governing rules or principles. Worford, 801 S.W.2d at 109; In re L.R.P., 98 S.W.3d at 313. In other words, the issue is whether the trial court’s actions were arbitrary or unreasonable. Worford, 801 S.W.2d at 109; In re L.R.P., 98 S.W.3d at 313.
Under the abuse of discretion standard, legal and factual insufficiency of the evidence are not independent reversible grounds, but are relevant components in assessing whether the trial court abused its discretion. In re L.R.P., 98 S.W.3d at 313; Farish v. Farish, 921 S.W.2d 538, 542 (Tex. App.–Beaumont 1996, no writ). In making this determination, the reviewing court must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App.–Houston [1st Dist.] 1997, pet. denied); In re S.B.C., 952 S.W.2d 15, 17-18 (Tex. App.–San Antonio 1997, no writ). If there is some evidence of a substantive and probative character to support the judgment, the trial court did not abuse its discretion. Nordstrom, 965 S.W.2d at 578; In re S.B.C., 952 S.W.2d at 18.
Applicable Law
A trial court may modify a child support order if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition. Tex. Fam. Code § 156.401(a)(1) (Vernon 2002). A child support order also may be modified if it has been three years since the order was rendered or last modified and the monthly amount of the child support award differs by either twenty percent or one hundred dollars from the amount that would be awarded in accordance with child support guidelines. Id. § 156.401(a)(2). In determining whether the circumstances of the child or a person affected by the order have materially and substantially changed, evidence regarding the parents’ or child’s financial circumstances and needs at the time of divorce and the time of modification should be considered by the trial court. Farish, 921 S.W.2d at 541; In re Striegler, 915 S.W.2d 629, 635 (Tex. App.–Amarillo 1996, writ denied). The amount of a child support order established by the child support guidelines is presumed to be reasonable and an order of support conforming to the guidelines is presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122 (a) (Vernon 2002).
Under the Texas Family Code, net resources for calculating child support include all wage and salary income and other compensation for personal services, including commissions, overtime pay, tips, bonuses, and all other income actually being received, including gifts and prizes. Id. § 156.062(a), (b)(1), (5) (Vernon 2002). The duty to support a child is not limited to a parent’s ability to pay from current earnings, but also extends to his financial ability to pay from any and all sources that might be available. In re Striegler, 915 S.W.2d at 638; Roosth v. Roosth, 889 S.W.2d 445, 455 (Tex. App.–Houston [14th Dist.] 1994, writ denied); Musick v. Musick, 590 S.W.2d 582, 586 (Tex. Civ. App.–Tyler 1979, no writ).
Analysis
Regarding child support, we note that the reporter’s record contains only argument and does not include any exhibits admitted into evidence. Although the trial court agreed to take a box of documents that Burgess referred to during the September 8 hearing, these documents were not identified during the hearing or admitted into evidence and are not included in the record on appeal. Further, the record contains little or no testimony regarding the amount of income reflected by Feghhi’s tax returns or the profit and loss statement that he produced during trial. Although Burgess attached a number of documents to her brief, we cannot consider documents attached to an appellate brief that do not appear in the record. See Till, 10 S.W.3d at 733.
Regarding her contention that the trial court excluded deemed income, a court may assign a reasonable amount of deemed income attributable to assets that do not currently produce income. Tex. Fam. Code Ann. § 154.067(a) (Vernon 2002). However, Burgess does not argue that the trial court failed to assign income to assets that do not currently produce income, but that the trial court excluded certain sources of income in determining Feghhi’s child support. Nonetheless, the burden is on Burgess to present a sufficient record to the appellate court to show error requiring reversal. Aguero v. Aguero, 225 S.W.3d 236, 238 (Tex. App.–El Paso 2006, no pet.). As noted above, the reporter’s record contains only argument. Thus, we cannot determine what sources of income were excluded by the trial court. Because Burgess has not presented a record sufficient to show that the trial court excluded other sources of Fegghi’s income or that Feghhi misrepresented his income taxes, she has waived the issue. See id.
Burgess further contends that the trial court abused its discretion in determining the number of children before the court and the percentage of Feghhi’s income to be paid as child support. Under the alternative method of computing support for children in more than one household, an obligor who has one child before the court and two children for whom he has a duty of support should pay sixteen percent of his net resources for child support. Tex. Fam. Code Ann. §154.129 (Vernon 2002). In the final order, the trial court found that the percentage applied to his net resources for child support was sixteen percent and that there was one child before the court, but that there were two children not before the court residing in the same household as Feghhi. The record supports the trial court’s finding that Feghhi had two other children to support. The order of child support regarding the amount of children and the percentage applied to Feghhi’s net resources conformed to the child support guidelines. Therefore, we conclude that the trial court did not abuse its discretion in determining the number of children before the court and the percentage of Feghhi’s income to be paid as child support. See id. §§ 154.122 (a), 154.129.
Burgess also complains that the trial court abused its discretion when it failed to consider additional factors in determining child support. Under a liberal construction of Burgess’s argument, we conclude that she is referring to section 154.123 of the Texas Family Code. Section 154.123 states that a court may order child support payments in an amount other than that established by the child support guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines. See id. § 154.123(a) (Vernon 2002). To determine whether application of the child support guidelines would be unjust or inappropriate under the circumstances, a court shall consider evidence of all relevant factors including, among others, the age and needs of the child, the ability of the parents to contribute to the support of the child, any financial resources available for the support of the child, the amount of the obligee’s net resources, provision for health care insurance and payment of uninsured medical expenses, special or extraordinary educational, health care, or other expenses of the parties or of the child, positive or negative cash flow from any real and personal property and assets, including a business and investments, and any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents. See id. § 154.123(b).
According to the record, Burgess did not object that the trial court refused to consider these additional factors when it determined child support. Instead, she argued that Feghhi’s monthly net resources exceeded $6,000 and that the trial court should award child support based on that amount. The grounds asserted on appeal must comport with the objection at trial. Moser v. Davis, 79 S.W.3d 162, 169 (Tex. App.–Amarillo 2002, no pet.). An objection at trial that is not the same as the issue urged on appeal presents nothing for appellate review. Scurlock Permian Corp. v. Brazos Cty., 869 S.W.2d 478, 484 (Tex. App.–Houston [1st Dist.] 1993, writ denied). Because Burgess’s argument on appeal does not conform to her complaint during trial, she has waived this issue. See id.
Burgess also argues that the trial court did not consider the best interest of the child. However, the order of support conformed to the guidelines and, thus, was presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122. Moreover, in the final order, the trial court found that its order was in the best interest of the child. Burgess did not provide any argument or citations to the record to demonstrate how the child support order was not in the best interest of the child. Her argument consisted only of conclusory statements that the trial court failed to consider the child’s best interest. Because Burgess has failed to provide us with an adequate substantive analysis of this issue, she has presented nothing for our review. See Tex. R. App. P. 38.1(h).
Finally, Burgess argues that the trial court should have ordered child support beyond S.A.B.’s eighteenth birthday because she had continuing dental problems and Feghhi denied her medical insurance in the past. According to the Texas Family Code, a court may order child support until the child is 18 years of age or until graduation from high school, whichever occurs later or, if the child is disabled as defined in the statute, for an indefinite period. Tex. Fam. Code Ann. § 154.001(a) (Vernon 2002). Burgess does not argue that S.A.B. is under eighteen years of age, is still in high school, or is disabled. Therefore, the trial court did not abuse its discretion when it failed to order child support beyond the time limits imposed by the family code.
We overrule Burgess’s issues twenty through twenty-six.
Other Issues (Issues 27-37)
Burgess presents eleven other issues in her brief. More specifically, she argues as follows:
27. She should receive a new judge and reasonable accommodations and modifications under the Americans with Disabilities Act based upon her disability, which she characterized as an inability to focus;
28. Feghhi should pay for an attorney for S.A.B. and for the costs of the appeal;
29. The Attorney General should be ordered to perform a Financial Information Data Match on Feghhi and his family;
30. Feghhi was in contempt of the order in the suit for modification of child support because he failed to pay child support and provide medical insurance. She requests that Feghhi be placed on probation and be ordered to reimburse Burgess for those medical expenses;
31. We should determine Feghhi’s ability to pay child support and the amount of child support because of the untimeliness of this case. She specifically complains about the delays in the case;
32. The trial court erred or abused its discretion in failing to hold a hearing on her motion to compel;
33. Feghhi should be ordered to produce responses to her discovery because he failed to object;
34. Feghhi’s attorney should return the “lost papers”;
35. We should order that she receive a jury trial;
36. She was unfairly deprived of notice of all motions and pleadings in violation of her “rights”; and that
37. Feghhi concealed evidence, committed fraud and perjury, and misrepresented his resources.
Burgess has waived issues twenty-seven, twenty-eight, and twenty-nine because she did not complain during trial by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). Because Burgess did not file a timely motion with the trial court regarding Feghhi’s failure to comply with the order in the suit for modification of child support, she has waived issue thirty. See Tex. R. App. P. 33.1(a)(1). Burgess failed to object to the delays at trial and, thus, she has waived issue thirty-one. See Tex. R. App. P. 33.1(a)(1). Because Burgess did not file a timely motion or request a hearing on her motion to compel, she has waived issue thirty-two. See Tex. R. App. P. 33.1(a)(1), (2).
Regarding issue thirty-three, we have already determined that Feghhi timely objected to Burgess’s discovery requests and that, although Burgess filed a motion to compel after the final hearing, she never requested that the motion be set for hearing, and did not obtain a ruling on her motion from the trial court. Because Burgess did not file a timely motion to compel or obtain a ruling on Feghhi’s objections, she has waived issue thirty-three. See Tex. R. App. P. 33.1(a)(1), (2). Regarding issue thirty-four, Burgess filed a motion on September 23, 2004 requesting that certain unspecified “lost papers” be returned. However, she did not request that the motion be set for a hearing and did not receive a ruling on her motion from the trial court. Because Burgess did not obtain a ruling on her motion, she has waived issue thirty-four. See Tex. R. App. P. 33.1(a)(1), (2). Even if she had obtained a ruling, however, we are unable to locate any authority permitting an appeal of such an order.
Regarding issue thirty-five, according to the Texas Family Code, a party may demand a jury trial except that the court may not submit to the jury questions on the issues of child support. Tex. Fam. Code Ann. § 105.002(a), (c)(2)(A) (Vernon 2002). Because this suit involved child support issues only, Burgess was not entitled to a jury trial. Thus, her complaint is without merit. Even if Burgess were entitled to a jury trial, the result would not change. According to Rule 216 of the Texas Rules of Civil Procedure, no jury trial shall be had in any civil suit unless a written request for a jury trial is filed with the clerk of the court not less than thirty days in advance of the date set for trial on the nonjury docket. Tex. R. Civ. P. 216(a). Had Burgess been entitled to a jury trial, by failing to request a jury trial thirty days in advance of the final hearing, she would have waived the issue.
Regarding issue thirty-six, Burgess did not provide any argument or citations to the record identifying the motions and pleadings she did not receive. Her argument consisted only of a conclusory statement that she did not receive notice of all motions and pleadings. Because Burgess has failed to provide us with an adequate substantive analysis of this issue, she has presented nothing for our review. We overrule Burgess’s issue thirty-six. See Tex. R. App. P. 38.1(h).
Finally, regarding issue thirty-seven, it is Burgess’s burden to present a sufficient record to the appellate court to show error requiring reversal. See Aguero, 225 S.W.3d at 238. The record contains only arguments and does not include any exhibits admitted into evidence. Although Burgess points to documents attached to her brief, we cannot consider documents attached to an appellate brief that do not appear in the record. See Till, 10 S.W.3d at 733. Because Burgess has not provided a record sufficient to show that Feghhi concealed evidence, committed fraud and perjury, and misrepresented his resources, she has waived this issue. See Aguero, 225 S.W.3d at 238.
We overrule Burgess’s issues twenty-seven through thirty-seven.
Disposition
The judgment of the trial court is affirmed. All pending motions are overruled.
BRIAN HOYLE
Justice
Opinion delivered July 31, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
1 We have liberally construed Burgess’s brief in order to give effect to her arguments. See Tex. R. App. P. 38.9. Under such a construction, we have determined that Burgess has raised thirty-seven issues.
2 The record does not contain any written orders requiring Feghhi to produce certain discovery. Nor did the trial court identify on the record which of Burgess’s discovery requests it considered proper. We cannot verify what discovery the trial court required Feghhi to produce and, thus, we rely on Feghhi’s uncontroverted statements to the trial court about the substance of its discovery orders.
3 Unless a suit is governed by a discovery control plan under Rules 190.2 or 190.4, discovery must be conducted in accordance with Rule 190.3 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 190.3(a).
4 The trial court reviewed Burgess’s discovery requests at the June 28 hearing. However, Feghhi filed his responses and objections after the hearing.
5 The hearing on the motion for enforcement against Burgess was brief, and the State did not explain the subject matter of the motion. Further, the motion for enforcement is not a part of the clerk’s record.
Cathy Burgess v. Mohammed Feghhi, No. 12-04-00367-CV (Tex.App.- Waco, Jul 31, 2007)(Opinion by Hon. Hoyle). Appeal from 321st District Court of Smith County
MEMORANDUM OPINION
Cathy Burgess appeals from an order for modification of child support. Burgess presents thirty-seven issues for our consideration. We affirm.
Background
Burgess and Mohammad Feghhi are the parents of S.A.B., born August 2, 1988. On July 30, 1991, a Bexar County trial court modified the existing child support order and ordered that Feghhi pay Burgess child support of $175.00 a month. On June 23, 2003, the Attorney General filed a motion to modify child support, which included a request that Feghhi produce certain financial and health insurance information. The Attorney General also filed a motion to transfer the suit to Smith County, S.A.B.’s residence. The trial court granted the motion and transferred the suit to Smith County.
On May 13, 2004, an assistant attorney general and Feghhi’s counsel attended a hearing on the motion to modify. The Assistant Attorney General stated that he had not received the financial information he had requested from Feghhi and had not informed Burgess of the hearing. As a result, the Assistant Attorney General and Feghhi’s counsel agreed, in open court, to reset the hearing for May 27, 2004. Fegghi agreed to produce the documents requested by the Assistant Attorney General. On May 27, 2004, the trial court conducted a brief hearing on a motion for enforcement against Burgess. The motion to modify was not addressed.
On June 4, 2004, Burgess filed an “open records” request that Feghhi produce documents on “any and all open records as described by Texas law.” On the same date, she filed a request for Feghhi to produce documents and things.
On June 28, 2004, the trial court held a hearing on the Attorney General’s motion to modify, at which all parties were present. The Assistant Attorney General stated that he and Feghhi had agreed to modify Feghhi’s child support obligation to $575.00 a month beginning June 1, 2004. However, he stated that Burgess was not a party to the agreement and that she believed Feghhi should pay more child support. At that point, the trial court observed that S.A.B. was in the courtroom and ordered that she leave.
Burgess stated that Feghhi made more money than he had disclosed, but she was not sure how much he should pay in child support. She also told the trial court that Feghhi had not produced documentation that she had requested. Feghhi responded that the request for production was sent less than thirty days before the hearing, that his responses were not due until July 4, that the requests were not clear or specific, and that all the requests were objectionable. After examining Burgess’s request for production, the trial court stated that some of the requests were proper, as modified by the court, but that Burgess could not require production of documents regarding businesses or properties that were owned by third parties, specifically Feghhi’s sister and brother.
Feghhi stated that he had agreed to pay $575.00 a month in child support and produced his 2002 and 2003 income tax returns. Fegghi’s attorney informed the trial court that Feghhi had two other children to support. The Assistant Attorney General stated that he considered depreciation in his calculations for the negotiated settlement for child support along with Feghhi’s tax returns and information relating to his properties and payments. Feghhi’s attorney believed he had shown Burgess records regarding real estate or houses that Feghhi had purchased. He explained, without objection, that Fegghi was a resident of the United States, but had been born in Iran. According to Feghhi’s attorney, Feghhi’s sister transferred monies from Iran through a third country to an account in Feghhi’s name to purchase a house. Feghhi produced records from his sister’s bank showing the transfer of monies and copies of wire transfers showing that the house Feghhi occupied was owned by his sister. According to Fegghi’s attorney, records may indicate that Feghhi owned certain monies or properties that were, in fact, owned by members of his family. In response, Burgess stated that Feghhi owned the property even though he claimed it was his sister’s. She pointed out that Feghhi was in a cash business. She also stated that Feghhi’s income tax returns never changed and that since 1990, he had claimed only $45,000 in earnings each year. However, Burgess produced no evidence to support her argument. Although Burgess complained about the amount of child support in the past, both Feghhi and the Assistant Attorney General denied that retroactive child support was an issue. The trial court requested that Feghhi produce documentation indicating the cost of goods sold in his business and concluded the hearing.
On June 28, Feghhi filed his answers to Burgess’s request for production, objecting to a number of the requests and asking for a hearing on his objections.
On September 8, the trial court conducted the final hearing on the Attorney General’s motion to modify. On that same date, before the hearing, Burgess filed numerous pleadings, including a pleading entitled “Concerning Motion to Quash” in response to Feghhi’s motion to quash and a request for production of documents and things. She also filed a pleading containing a motion to compel “all discovery,” to exclude and dismiss Feghhi’s motion to quash and assess sanctions, to penalize Feghhi for not producing discovery, to take judicial notice of documents, and to order the rest of discovery. The pleading included a request that Feghhi reimburse her for obtaining discovery. Burgess also filed a motion to amend “the proceedings” to include claims of fraud, misrepresentation, personal injury, harassment, deceit, and retaliation against Feghhi.
Feghhi and his attorney appeared at the hearing by telephone without objection. Feghhi’s attorney told the court that he had produced documents to support Feghhi’s income tax returns. The trial court stated that Feghhi also produced a profit and loss statement. The Assistant Attorney General responded that this documentation, which he had examined, did not change their agreement on child support. However, Burgess believed otherwise. She stated that the information provided by Feghhi was not complete because he provided documentation regarding only one of his businesses, not all of them. Feghhi’s attorney stated that Feghhi’s businesses were identified by different names because they were located on different properties. Burgess stated that she believed Feghhi earned approximately $1 million per year.
Regarding discovery, Burgess stated that she received some of the documents she requested. Nonetheless, she claimed that Feghhi “frauded” her by not answering discovery. Feghhi’s attorney told the court about the additional discovery requests Burgess had filed before the hearing. The trial court told Burgess that she could not obtain discovery after the case closed. In response, Burgess stated that she had filed proper pleadings that day, but never elaborated on the content of those pleadings. She protested that she had not had an opportunity to present her case. She stated that “he,” indicating Feghhi or his attorney, kept “butting in,” that he “started” the case, and that the rules of court were different from what she had supposed.
Burgess also complained about a lack of documentation regarding Feghhi’s sister’s financial activities relating to Feghhi and the transfer of monies. Burgess objected to Feghhi’s argument that certain properties were his sister’s because his sister was not present at the hearing. She stated that Feghhi’s profit and loss statement reflected that he earned approximately $488,000 annually. Burgess also stated that Feghhi did not return S.A.B.’s medical bills as ordered and, thus, he was in contempt of court. She believed he owed her approximately $6,000 a month in child support. The trial court stated that this amount was over the child support guidelines. Burgess continued arguing, repeating her previous arguments at times.
During the hearing, Burgess attempted to file certain documents, but the trial court refused to accept them stating that they were improper for filing. The trial court acknowledged that Burgess had filed a new lawsuit or petition that day, but stated that it could not take up the petition at the hearing. However, the trial court agreed to take a box of documents that Burgess had referred to during the hearing and examine them before ruling. Feghhi agreed to return the originals of S.A.B.’s medical bills.
On November 9, 2004, the trial court found that Feghhi’s gross income was $5,000 a month and ordered that Feghhi provide health insurance. A day later, the trial court ordered that child support be made retroactive to the date Feghhi was served with the motion to modify. On November 15, the trial court signed an order finding that Feghhi’s monthly net resources were $3,569.33, ordering that Feghhi pay Burgess current child support of $571.09 each month beginning November 1, 2003, and ordering Feghhi to obtain health insurance for S.A.B. Burgess appealed pro se. Feghhi did not file a brief.1
Discovery (Issues 1-9)
Burgess contends that the trial court abused its discretion by denying or limiting discovery concerning Feghhi’s ability to pay child support and by not compelling discovery about Feghhi’s family’s assets to show fraudulent transfers. Burgess also argues that the trial court’s abuse of discretion in denying or limiting discovery was material to her case, and denied her “a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud.” This, she contends, caused an incorrect, and lower, determination of child support. Further, she argues that the trial court abused its discretion by refusing to permit additional discovery at or after the final hearing and by failing to require compliance with sections 154.063 and 154.185 of the Texas Family Code. She also contends that Feghhi had a duty to produce the discovery she requested immediately after the discovery was sent because her request was pursuant to the Texas Family Code, and not the general discovery rules. Burgess argues further that Feghhi waived his objections to her discovery because they were not timely made, and that he failed to produce discovery. Finally, she argues that the trial court abused its discretion by not sanctioning Feghhi’s attorney for failing to produce discovery.
Denying and/or Limiting Discovery of Ability to Pay Child Support
We review a trial court’s ruling on discovery requests for an abuse of discretion. Wheeler v. Methodist Hosp., 95 S.W.3d 628, 643 (Tex. App.–Houston [1st Dist.] 2002, no pet.). The test for abuse of discretion is not whether, in the opinion of the reviewing court, the facts present an appropriate case for the trial court's action. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241 (Tex. 1985). Rather, it is a question of whether the court acted without reference to any guiding rules and principles. Id. at 241-42. In other words, we must determine whether the act was arbitrary or unreasonable. Id. at 242. The mere fact that a trial judge may decide a matter within her discretionary authority in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Id.
A trial court’s discovery decision is an abuse of discretion when
1. the appellate court would not be able to cure the trial court’s discovery error, such as when privileged information or trade secrets would be revealed or a disproportionate burden would be imposed on the producing party to furnish patently irrelevant or duplicative documents;
2. the party’s ability to present a viable claim or defense is compromised or vitiated by the erroneous discovery ruling to the extent that it is effectively denied the ability to develop the merits of its case; or
3. the trial court’s discovery order disallows discovery which cannot be made a part of the appellate record, thereby denying the reviewing court the ability to evaluate the effect of the trial court’s error.
Wheeler, 95 S.W.3d at 644.
At the June 28 hearing, Feghhi produced his 2002 and 2003 income tax returns and copies of wire transfers showing that the house he occupied was owned by his sister. He also stated that he had shown Burgess records regarding real estate or houses he had purchased. Further, after examining Burgess’s June 4 request for production, the trial court stated that some of the requests were proper, as modified by the court, but that Burgess could not require production of documents regarding businesses or properties that were owned by third parties, specifically Feghhi’s sister and brother. At the September 8 hearing, Feghhi stated that he had produced the documents ordered by the trial court, including documentation to support his income tax returns and a profit and loss statement.2
From the clerk’s record and Burgess’s own argument, it appears that she received some of the documents the trial court ordered Feghhi to produce that were identified in the June 4 request for production. Feghhi also produced other documents as ordered by the trial court. Burgess wanted Feghhi to produce all of his profit and loss statements from all of his businesses and to produce documents that reflected Feghhi was receiving money from “outside.” According to Feghhi’s attorney, his profit and loss statement reflected that his businesses were classified under one name even though they were on different city lots under different names. The trial court accepted this explanation and did not require Feghhi to produce any other documents.
Feghhi produced the documents the trial court ordered regarding his income, financial status, and properties. The trial court considered the arguments of the parties, reviewed the documents Feghhi produced, and concluded that it had sufficient information before it to rule on the Attorney General’s motion to modify. Based upon our review of the record, we cannot conclude that the trial court abused its discretion by denying Burgess the opportunity to conduct additional discovery relating to Feghhi’s ability to pay child support. See id.
Additionally, Burgess complains that the trial court abused its discretion by failing to compel discovery about Feghhi’s family’s assets to show fraudulent transfers. The trial court ruled that Feghhi was not required to produce documents regarding businesses or properties owned by his sister and brother. The Texas Rules of Civil Procedure contain no requirement that a party obtain a nonparty’s personal financial information and produce the information in response to a discovery request. Thus, the trial court’s failure to compel the requested discovery was not an abuse of discretion. Burgess also argues that the trial court’s abuse of discretion in denying or limiting discovery was material to her case, and denied her a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud. This, she contends, caused an incorrect, and lower, determination of child support. We have concluded that the trial court did not abuse its discretion in denying or limiting discovery regarding Feghhi’s ability to pay child support. Because the trial court did not abuse its discretion in denying or limiting Burgess’s discovery, it did not deny her “a fair trial, a fair evidentiary stage, and an opportunity to prosecute her case and discover Feghhi’s fraud.”
Refusing to Permit Additional Discovery at or after Final Hearing
The scope of discovery is largely within the discretion of the trial court, and the court’s action cannot be set aside unless there is a clear showing of abuse of discretion. Dillard Dep’t Stores, Inc. v. Hall, 909 S.W.2d 491, 492 (Tex. 1995); Lovelace v. Sabine Consol., Inc., 733 S.W.2d 648, 652 (Tex. App.–Houston [14th Dist.] 1987, writ denied). To support a reversal, the trial court’s refusal to permit discovery must have been such a denial of the rights of the appellant as was reasonably calculated to cause and probably did cause rendition of an improper judgment. Lovelace, 733 S.W.2d at 652.
In cases under the Texas Family Code, the discovery period begins the date a cause is filed and continues until thirty days before the date set for trial. See Tex. R. Civ. P. 190.3(b)(1)(A).3 Thus, the discovery period in this case ended, at the latest, thirty days before the September 8 hearing. The clerk’s record shows that Burgess filed a second request for production of documents and things on September 8, the date of the final hearing. Because Burgess filed this discovery request after the discovery period ended, the trial court did not abuse its discretion in refusing to permit the discovery. See Tex. R. Civ. P. 190.3(b)(1)(A).
Failing to Require Compliance with the Texas Family Code
Section 154.063 of the Texas Family Code requires a party to furnish information sufficient to accurately identify that party’s net resources and ability to pay child support and to produce copies of income tax returns for the past two years, a financial statement, and current pay stubs. Tex. Fam. Code Ann. § 154.063 (Vernon 2002). Section 154.185 requires the trial court to order a parent providing health insurance to furnish certain information to the obligee, obligor, or child support agency not later than the thirtieth day after the date the notice of rendition of the order is received. Id. § 154.185 (Vernon 2002).
As a prerequisite to presenting a complaint for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). Further, the trial court must have ruled on the request, objection, or motion, either expressly or implicitly, or refused to rule on the request, objection, or motion, and the complaining party must have objected to the refusal. Tex. R. App. P. 33.1(a)(2).
Pursuant to section 154.063, Feghhi produced his income tax returns for the past two years and a financial, or profit and loss, statement. See Tex. Fam. Code Ann. § 154.063. According to the record, he did not produce his current pay stubs. However, Burgess did not timely object during either hearing to Feghhi’s failure to produce his pay stubs nor did she file a motion to compel production of his pay stubs. See Tex. R. App. P. 33.1(a)(1), (2). Thus, Burgess has waived this complaint.
The final modification order required Feghhi to furnish Burgess and the Attorney General documents regarding the health insurance policy he obtained covering S.A.B. See Tex. Fam. Code Ann. § 154.185. Burgess’s argument on appeal consists of only a conclusory statement that Feghhi failed to send the medical insurance documents to her or the Attorney General’s office after the final hearing. The jurisdiction of this court is, except where otherwise specially provided, appellate only. Tex. Gov’t Code Ann. § 22.220(a) (Vernon 2004); see also Thorp Springs Christian College v. Dabney, 37 S.W.2d 193, 196 (Tex. Civ. App.–Fort Worth 1931, no writ). The scope of our appellate jurisdiction is limited to review of decisions by a lower court. See United Am. Ins. Co. v. McPhail, 435 S.W.2d 624, 625-26 (Tex. Civ. App.–Tyler 1968, no writ); see also Walker v. Koger, 131 S.W.2d 1074, 1075 (Tex. Civ. App.–Eastland 1939, writ dism’d) (stating that the subject matter of an assignment of error is some ruling or action of the court). Here, Burgess complains of Feghhi’s failure to comply with the trial court’s final order, not a decision of the trial court. Because we can review only decisions of a lower court, we are without jurisdiction to address this issue.
Burgess also asserts that under section 154.063, Feghhi was required to produce discovery immediately after the request was sent, and did not have thirty days to respond. The Texas Family Code contains no specific provisions governing discovery in a suit for modification of conservatorship, possession, access, or child support. See Tex. Fam. Code Ann. §§ 156.001-.401 (Vernon 2002 & Supp. 2006). Instead, it provides that the Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification. See id. § 156.004 (Vernon 2002). Burgess filed a request for production of documents and things on June 4. Rule 196.2 states that a response to a request for production of documents must be served within thirty days after service of the request. Tex. R. Civ. P. 196.2. Thus, Feghhi’s responses were not due until July 4. Feghhi produced his responses to discovery within the time specified by Rule 196.2. Therefore, Burgess’s complaint is without merit.
Waiver of Objections
Burgess contends that Feghhi waived his objections to her discovery because they were not timely made. As noted above, Feghhi timely filed his responses to Burgess’s request for production. Further, he filed his objections timely, within the time for response. See Tex. R. Civ. P. 193.2(a). Therefore, Feghhi did not waive his discovery objections.
Failure to Produce Discovery
Rule 193.4 of the Texas Rules of Civil Procedure states that any party may at any reasonable time request a hearing on an objection or claim of privilege asserted under this rule. Tex. R. Civ. P. 193.4(a). A party need not request a ruling on that party’s own objection to preserve the objection. Tex. R. Civ. P. 193.4(b). On June 28, Feghhi filed responses and objections to Burgess’s June 4 request for production of documents and things. Burgess did not request a hearing on Feghhi’s objections.4 See Tex. R. Civ. P. 193.4(a). Thus, the trial court did not have an opportunity to rule on whether Feghhi’s objections were valid. See Tex. R. Civ. P. 193.4(b). Further, on the day of the final hearing, Burgess filed a pleading that contained a motion to compel documents and things. However, she did not request that the trial court set the motion for hearing, and did not obtain a ruling from the trial court on her motion. See Tex. R. Civ. P. 193.4(a), (b). Because Burgess did not obtain a ruling on Feghhi’s objections or timely file and request a hearing on a motion to compel, she waived her complaint regarding Feghhi’s failure to produce the discovery to which he objected. See Tex. R. App. P. 33.1(a)(1), (2).
Failure to Sanction Feghhi’s Attorney
We review a trial court’s decision regarding the sanction of a party under an abuse of discretion standard. See Cire v. Cummings, 134 S.W.3d 835, 838 (Tex. 2004). A trial court may enter “just” sanctions for a party’s failure to comply with a discovery order or request. See id. at 839; Tex. R. Civ. P. 215.2(b). Likewise, a trial court may impose sanctions against a party who abuses the discovery process. Tex. R. Civ. P. 215.3.
Feghhi produced his income tax returns, a profit and loss statement, documentation to support his income tax returns, and copies of wire transfers showing that the house he occupied was owned by his sister. He also produced documents in response to Burgess’s requests for production. However, at the June 28 hearing, the trial court modified some of Burgess’s requests for production and determined that Burgess could not require production of documents pertaining to businesses or properties owned by third parties, specifically Feghhi’s sister and brother. Thus, the trial court did not require Feghhi to produce all of the documents Burgess requested. Because Feghhi produced the documents the trial court required, we cannot conclude that the trial court abused its discretion by not sanctioning Feghhi’s attorney for failing to produce discovery. See Tex. R. Civ. P. 215.2(b); Cire, 134 S.W.3d at 838.
We overrule Burgess’s issues one through nine.
Continuances (Issue 10)
Burgess contends that the trial court abused its discretion by granting continuances. Specifically, she argues that she never knew about “unwanted continuances,” and that these continuances delayed her case. We review a trial court’s decision regarding a continuance under an abuse of discretion standard. See BMC Software Belgium, N.V. v. Marchand, 83 S.W.3d 789 , 800 (Tex. 2002). A trial court has wide latitude in controlling its docket, especially regarding preliminary hearings. See Metzger v. Sebek, 892 S.W.2d 20, 38 (Tex. App.–Houston [1st Dist.] 1994, writ denied). According to the record, the trial court granted only one continuance, and that was regarding a preliminary hearing. On May 13, 2004, the Assistant Attorney General stated that it had not received financial information from Feghhi and had not informed Burgess of the hearing. As a result, Burgess was not present. Feghhi also had not received certain information from the Assistant Attorney General until shortly before the hearing. As a result, Feghhi’s attorney and the Assistant Attorney General stated in open court that they had agreed to a continuance on the motion to modify. Under these circumstances, we cannot conclude that the trial court abused its discretion in granting the continuance of this preliminary hearing. Further, because she was not present at the hearing, Burgess was not harmed by the trial court’s decision to grant the continuance. We overrule Burgess’s issue ten.
Bias (Issue 11)
Burgess argues that the trial court was biased against her and calls our attention to the trial court’s statement during a hearing on a motion for enforcement against Burgess.5 She also contends that the trial court denied her “fair standards of law and justice or the administration of justice” and never enforced due process protections on her behalf. Burgess claims that the trial court was not fair or impartial because she allowed Feghhi’s attorney to interrupt her, allowed Feghhi to “go first,” denied her “rules of court,” denied her the ability to present her case, and failed to exercise control.
Applicable Law
Due process requires a neutral and detached hearing body or officer. Earley v. State, 855 S.W.2d 260, 262 (Tex. App.–Corpus Christi 1993), writ dism'd, improvidently granted, 872 S.W.2d 758 (Tex. Crim. App. 1994) (citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S. Ct. 1756, 1761, 36 L. Ed. 2d 656 (1973)). In the absence of a clear showing to the contrary, we will presume the trial court was a neutral and detached officer. Id. (citing Fielding v. State, 719 S.W.2d 361, 366 (Tex. App.–Dallas 1986, pet. ref'd)). The complaining party must show the judge acted improperly and that she suffered probable prejudice as a result. Rymer v. Lewis, 206 S.W.3d 732, 735-36 (Tex. App.–Dallas 2006, no pet.). In reaching our decision, we examine the entire record. Id. at 736.
Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion. Liteky v. United States, 510 U.S. 540, 555, 114 S. Ct. 1147, 1157, 127 L. Ed. 2d 474 (1994). Judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id. Bias must come from an extrajudicial source and result in an opinion on the merits of the case other than what the trial court learned from participation in the case. See in re K.L.R., 162 S.W.3d 291, 312 (Tex. App.–Tyler 2005, no pet.). A trial court has the inherent power to control the disposition of cases. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 240 (Tex. 2001). The discretion vested in the trial court over the conduct of a trial is great. Id. Further, a trial court may properly intervene to maintain control in the courtroom, expedite the trial, and to prevent what it considers to be a waste of time. Id. at 241.
Analysis
The record from the enforcement hearing shows that the Assistant Attorney General informed the trial court that the hearing involved a motion for enforcement brought by the State against Burgess. The trial court then informed Burgess that a motion for enforcement could lead to her “being in jail or being on probation which could also result in [her] going to jail.” The trial court stated that Burgess had the right to an attorney and that, if she was too poor to hire one, the court could appoint one. Burgess stated that she wanted the trial court to consider appointing her an attorney. The trial court informed Burgess that she needed to complete some paperwork for review and concluded the hearing. The trial court did not rule on the motion for enforcement, but simply informed Burgess of the consequences if the motion for enforcement was granted. See Liteky, 510 U.S. at 555, 114 S. Ct. at 1157.
At the June 28, 2004 hearing, the trial court addressed Burgess’s request for production. This eventually led to Feghhi’s attorney explaining the unusual aspects of the case, primarily involving Feghhi’s family’s problems with transferring money from Iran to the United States and how those transactions affected Feghhi’s financial documents and property records. This explanation may be what Burgess complains of as Feghhi being allowed to “go first.” After hearing arguments from Feghhi’s attorney and explanations by the Assistant Attorney General, the trial court stated that she would allow Burgess to “tell me whatever you want to tell me.” Burgess was allowed to argue, but was, admittedly, interrupted by the trial court. Most of the interruptions were a direct result of Burgess’s arguments.
In the September 8, 2004 hearing, Burgess was allowed to argue, but was interrupted by the trial court and Feghhi’s attorney regarding her allegations and arguments. She complained to the trial court that Feghhi’s attorney started the case and kept “butting in,” and also told the court that the rules of court were not what she “thought they were supposed to be.” The trial court allowed Burgess to continue her argument, which consists of approximately twenty pages of a thirty page reporter’s record. Feghhi’s attorney interrupted at least once to question documents Burgess gave to the trial court. At one point, Burgess again complained that Feghhi’s attorney was attempting to interrupt her and asked the trial court not to allow him to do so. The trial court stated that she was listening to Burgess, but that interruptions were “the way lawsuits go. Everybody gets to interrupt. It’s the way we do things.” At the end of Burgess’s argument, the trial court stated, at least twice, that Burgess was repeating the same arguments.
The record demonstrates that, contrary to Burgess’s assertions of bias and partiality, the trial court was patient, attentive, and professional. The trial court’s statements during the hearing on the motion for enforcement were merely to inform Burgess of the consequences if the motion was granted. Burgess complains about interruptions during other hearings, but these hearings were informal and involved argument only. No evidence or witnesses were presented. Further, the record indicates that the trial court exercised its broad discretion to maintain control and promote expedition of the hearings. See Dow Chem. Co., 46 S.W.3d at 241. Although Burgess complains that the trial court violated court rules, she does not specify which rules were violated, or in what manner.
Burgess also states that the trial court was biased, but she does not identify any extrajudicial source that influenced the trial court’s decision nor has she directed us to any evidence in the record from which we might conclude any such influence existed. See in re K.L.R., 162 S.W.3d at 312. Thus, in substance, she complains only of actions taken by the trial court while acting in its judicial capacity at trial. Based upon our review of the record, we conclude that Burgess has failed to make a clear showing that the trial court was biased or partial and, thus, has failed to overcome the presumption that the trial court was a neutral and detached officer. See Earley, 855 S.W.2d at 262. We overrule Burgess’s issue eleven.
New Claims (Issue 12)
Burgess contends that the trial court erred in not allowing her to “prosecute” her fraud claims. Parties may amend their pleadings and file such other pleadings as they may desire “at such time as not to operate as a surprise to the opposite party.” Tex. R. Civ. P. 63. If a pleading is offered for filing within seven days of trial or thereafter, the pleading shall be filed only after leave of court is obtained. Id. On the day of the final hearing, September 8, Burgess filed a motion to amend “the proceedings” alleging actions for fraud, misrepresentation, personal injury, harassment, deceit, and retaliation against Feghhi. Attached to the motion was a proposed petition. Burgess did not request that the trial court rule on her motion, but the court informed Burgess that she could not take up her new suit at the final hearing. See id. We construe this as a denial of Burgess’s motion.
Although Feghhi failed to object to Burgess’s motion, nothing in the record shows that he was served with a copy. Because the amendment was requested at the final hearing and the record does not show that Feghhi was served with a copy of Burgess’s motion, the trial court reasonably could have concluded that the filing of the motion operated as a surprise and denied it. See id. We overrule Burgess’s issue twelve.
Notices Pertaining to Hearings (Issues 13-14)
Burgess argues that the trial court erred or abused its discretion because she did not receive proper notices of hearings in violation of her rights of due process and equal protection. Moreover, she contends that she was not “invited” to all of the hearings in violation of fair standards of law or the administration of justice. Because she was not notified of hearings, she claims that she was denied the opportunity for discovery and right to speak and give testimony in violation of her rights of due process. Burgess also complains that Feghhi’s attorney failed to notify her that he was attending the hearings by telephone, denying her rights of due process and equal protection.
Applicable Law
An elementary and fundamental requirement of due process in any proceeding that is to be accorded finality is notice reasonably calculated, under the circumstances, to apprise interested parties of the pendency of the action and afford them the opportunity to present their objections. Peralta v. Heights Med. Ctr., Inc., 485 U.S. 80, 84, 108 S. Ct. 896, 899, 99 L. Ed. 2d 75 (1988) (quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S. Ct. 652, 657, 94 L. Ed. 865 (1950)). Failure to give notice violates the most rudimentary demands of due process of law. Id. However, no judgment may be reversed on appeal on the ground that the trial court made an error of law unless the appellate court concludes that the error (1) probably caused the rendition of an improper judgment or (2) probably prevented the appellant from properly presenting the case to the appellate court. Tex. R. App. P. 44.1(a).
Analysis
Although Burgess claims that she did not receive notice of all the hearings or was not “invited” to all of the hearings, the record shows that she attended all but one of the hearings.
Hearings on May 27, June 28, and September 8, 2004
According to the record, Burgess did not object to the lack of notice for the hearings that took place on May 27, June 28, or September 8, or complain that Feghhi’s attorney appeared by telephone during the September 8 hearing. By failing to object, Burgess has failed to preserve these issues for review. See Tex. R. App. P. 33.1(a)(1). Moreover, she does not explain how the lack of notice of these hearings caused the rendition of an improper judgment or prevented her from properly presenting her case to this court, particularly in light of the fact that she attended all of these hearings. See Tex. R. App. P. 44.1(a)
Hearing on May 13, 2004
Burgess did not attend the hearing held on May 13, 2004. However, the Assistant Attorney General informed the trial court that he and Feghhi’s attorney had not yet reached a settlement and that Feghhi’s attorney wanted a continuance because of scheduling problems. The Assistant Attorney General stated that he would like the case reset, particularly because he did not have Feghhi’s financial information and he had not informed the custodial parent, Burgess, of the hearing. The trial court noted that Feghhi’s attorney was not present and contacted him by telephone during the hearing. After some discussion, the Assistant Attorney General and Feghhi agreed to a continuance of the case until May 27. Feghhi also agreed to provide the requested financial information to the Attorney General and to discuss a settlement. No argument was heard or evidence presented during this hearing.
Burgess argues that because she did not receive notice of this hearing, she was denied the opportunity for discovery and the right to speak and give testimony in violation of her rights of due process. Although notice is an elementary and fundamental requirement of due process, it is a requirement only for any proceeding that “is to be accorded finality.” See Peralta, 485 U.S. at 84, 108 S. Ct. at 899. The May 13 hearing was not a final hearing – there was no argument regarding the merits of the case, there was no evidence presented during the hearing, and there was no decision regarding the outcome of the case by the trial court. Further, Burgess contends that she was prevented from conducting discovery during this hearing. However, she did not file her request for discovery from Feghhi until June 4. She also does not state how her lack of notice of this hearing probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a). Because the May 13 hearing was not a final hearing and Burgess failed to show how the lack of notice caused the rendition of an improper judgment, we conclude that, if the trial court erred in failing to provide notice of the May 13 hearing, the error was harmless.
We overrule Burgess’s issues thirteen and fourteen.
Witnesses (Issue 15)
Burgess argues that the trial court improperly excluded her witnesses, including S.A.B. At the June 28 hearing, the trial court observed that S.A.B. was in the courtroom. Burgess stated that she thought S.A.B. was to be sworn as a witness to testify that she had never received anything from Feghhi. The trial court stated that the courtroom was not a place for children and requested the child wait outside and be taken home. Burgess stated that S.A.B. wanted to come, but admitted telling the child that she did not believe the trial court was going to let her in the courtroom. Burgess never asked the trial court to allow S.A.B. to testify. At the September 8 hearing, Burgess’s mother attempted to speak to the trial court, but was ordered to “be quiet” because she was not in the case or before the court. According to the record, Burgess never objected that the trial court improperly excluded her witnesses. Because Burgess failed to timely object to the exclusion of her witnesses, she has waived her complaint. See Tex. R. App. P. 33.1(a)(1). We overrule Burgess’s issue fifteen.
Hearsay (Issue 16)
Burgess argues that the trial court erred in overruling her hearsay objections to Feghhi’s evidence, including his statements regarding his sister’s ownership of certain properties. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Tex. R. Evid. 801(d). If a party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross examination. Tex. R. Evid. 806.
At the June 28 hearing, Feghhi presented documentation showing Feghhi’s sister’s transfer of monies. Burgess did not object to those documents during the hearing. At the September 8 hearing, after Burgess argued that she had not seen the documentation that Feghhi’s sister transferred monies to him, Burgess “objected to it” because Feghhi’s sister was not at the hearing. The trial court simply said “okay,” but did not rule on Burgess’s objection. Burgess failed to timely object to the documentation regarding Feghhi’s sister’s transfer of monies, allowing these documents to be presented at the June 28 hearing without objection. She also failed to obtain a ruling on her objection during the September 8 hearing. By failing to timely object or obtain a ruling on her objection, she has waived this issue for review. See Tex. R. App. P. 33.1(a)(1), (2)(A). We overrule Burgess’s issue sixteen.
Credibility of Witnesses (Issue 17)
Burgess argues that the trial court abused its discretion when it believed Feghhi’s testimony and evidence regarding his financial status and ability to pay child support because it was false, misleading, and fraudulent. In a bench trial, the trial court, as fact finder, is the sole judge of the credibility of the witnesses. Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.–Houston [1st Dist.] 1992, writ denied). The court may take into consideration all of the facts and surrounding circumstances in connection with the testimony of each witness and accept or reject all or any part of that testimony. Id. Although Burgess argues that Feghhi’s testimony and evidence was false, misleading, and fraudulent, the record contains only the reporter’s records of the hearings and no exhibits that were admitted during the hearings. Burgess has attached a large volume of documents to her brief. However, we must determine a case on the record as filed, and may not consider documents attached as exhibits to an appellate brief. Till v. Thomas, 10 S.W.3d 730, 733 (Tex. App.–Houston [1st Dist.] 1999, no pet.).
Because the trial court was the exclusive judge of Feghhi’s credibility and Burgess has presented us with nothing but the reporter’s records without exhibits, we cannot conclude that the trial court abused its discretion by believing Feghhi’s testimony and evidence regarding his financial status and ability to pay child support. We overrule Burgess’s issue seventeen.
Exclusion of Evidence (Issue 18)
Burgess also contends that the trial court improperly excluded her evidence. We review a trial court’s evidentiary rulings for an abuse of discretion. See Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998). A trial court abuses its discretion when it rules without regard for any guiding rules or principles. Id. The burden is on the complaining party to present a sufficient record to the appellate court to show error requiring reversal. Est. of Veale v. Teledyne Indus., Inc., 899 S.W.2d 239, 242 (Tex. App.–Houston [1st Dist.] 1995, writ denied). Although Burgess complains that the trial court excluded her evidence, the record does not show what evidence was excluded by the trial court. The trial court accepted a box of unidentified documents on September 8 and agreed to examine them in making its ruling, but it did not admit these documents into evidence. Because Burgess did not present a bill of review on these documents, we have nothing to review. We overrule Burgess’s issue eighteen.
Retroactive Child Support (Issue 19)
Burgess argues that the trial court should have determined Feghhi’s child support from the date of his fraud or from the date of filing the motion to modify. A support order may be modified only as to obligations accruing after the earlier of the date of service of citation or an appearance in the suit to modify. Tex. Fam. Code Ann. § 156.401(b) (Vernon 2002). Thus, the trial court had no authority to modify child support from the date of Feghhi’s alleged fraud or from the date the motion to modify was filed. Further, the motion to modify did not ask for retroactive child support. Thus, the trial court did not err in refusing to grant child support before the date of service of citation. We overrule Burgess’s issue nineteen.
Modification of Child Support (Issues 20-26)
Burgess contends that the trial court abused its discretion by excluding other sources of income including deemed income, bank accounts, businesses, properties, and Feghhi’s wife’s income taxes in determining Feghhi’s monthly net resources and, thus, his child support. She also argues that Feghhi misrepresented his income taxes. Further, she contends that the trial court abused its discretion in determining the number of children before the court and the percentage of his income to be paid as child support. She also contends that the trial court abused its discretion when it failed to consider additional factors in determining child support, and that the trial court did not consider the best interests of the child. Finally, she argues that the trial court should have ordered child support beyond the child’s eighteenth birthday.
Standard of Review
A court’s order of child support will not be disturbed on appeal unless the complaining party can show a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re L.R.P., 98 S.W.3d 312, 313 (Tex. App.–Houston [1st Dist.] 2003, pet. dism’d). The test for abuse of discretion is whether the trial court acted without reference to any governing rules or principles. Worford, 801 S.W.2d at 109; In re L.R.P., 98 S.W.3d at 313. In other words, the issue is whether the trial court’s actions were arbitrary or unreasonable. Worford, 801 S.W.2d at 109; In re L.R.P., 98 S.W.3d at 313.
Under the abuse of discretion standard, legal and factual insufficiency of the evidence are not independent reversible grounds, but are relevant components in assessing whether the trial court abused its discretion. In re L.R.P., 98 S.W.3d at 313; Farish v. Farish, 921 S.W.2d 538, 542 (Tex. App.–Beaumont 1996, no writ). In making this determination, the reviewing court must view the evidence in the light most favorable to the actions of the trial court and indulge every legal presumption in favor of the judgment. Nordstrom v. Nordstrom, 965 S.W.2d 575, 578 (Tex. App.–Houston [1st Dist.] 1997, pet. denied); In re S.B.C., 952 S.W.2d 15, 17-18 (Tex. App.–San Antonio 1997, no writ). If there is some evidence of a substantive and probative character to support the judgment, the trial court did not abuse its discretion. Nordstrom, 965 S.W.2d at 578; In re S.B.C., 952 S.W.2d at 18.
Applicable Law
A trial court may modify a child support order if the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the order’s rendition. Tex. Fam. Code § 156.401(a)(1) (Vernon 2002). A child support order also may be modified if it has been three years since the order was rendered or last modified and the monthly amount of the child support award differs by either twenty percent or one hundred dollars from the amount that would be awarded in accordance with child support guidelines. Id. § 156.401(a)(2). In determining whether the circumstances of the child or a person affected by the order have materially and substantially changed, evidence regarding the parents’ or child’s financial circumstances and needs at the time of divorce and the time of modification should be considered by the trial court. Farish, 921 S.W.2d at 541; In re Striegler, 915 S.W.2d 629, 635 (Tex. App.–Amarillo 1996, writ denied). The amount of a child support order established by the child support guidelines is presumed to be reasonable and an order of support conforming to the guidelines is presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122 (a) (Vernon 2002).
Under the Texas Family Code, net resources for calculating child support include all wage and salary income and other compensation for personal services, including commissions, overtime pay, tips, bonuses, and all other income actually being received, including gifts and prizes. Id. § 156.062(a), (b)(1), (5) (Vernon 2002). The duty to support a child is not limited to a parent’s ability to pay from current earnings, but also extends to his financial ability to pay from any and all sources that might be available. In re Striegler, 915 S.W.2d at 638; Roosth v. Roosth, 889 S.W.2d 445, 455 (Tex. App.–Houston [14th Dist.] 1994, writ denied); Musick v. Musick, 590 S.W.2d 582, 586 (Tex. Civ. App.–Tyler 1979, no writ).
Analysis
Regarding child support, we note that the reporter’s record contains only argument and does not include any exhibits admitted into evidence. Although the trial court agreed to take a box of documents that Burgess referred to during the September 8 hearing, these documents were not identified during the hearing or admitted into evidence and are not included in the record on appeal. Further, the record contains little or no testimony regarding the amount of income reflected by Feghhi’s tax returns or the profit and loss statement that he produced during trial. Although Burgess attached a number of documents to her brief, we cannot consider documents attached to an appellate brief that do not appear in the record. See Till, 10 S.W.3d at 733.
Regarding her contention that the trial court excluded deemed income, a court may assign a reasonable amount of deemed income attributable to assets that do not currently produce income. Tex. Fam. Code Ann. § 154.067(a) (Vernon 2002). However, Burgess does not argue that the trial court failed to assign income to assets that do not currently produce income, but that the trial court excluded certain sources of income in determining Feghhi’s child support. Nonetheless, the burden is on Burgess to present a sufficient record to the appellate court to show error requiring reversal. Aguero v. Aguero, 225 S.W.3d 236, 238 (Tex. App.–El Paso 2006, no pet.). As noted above, the reporter’s record contains only argument. Thus, we cannot determine what sources of income were excluded by the trial court. Because Burgess has not presented a record sufficient to show that the trial court excluded other sources of Fegghi’s income or that Feghhi misrepresented his income taxes, she has waived the issue. See id.
Burgess further contends that the trial court abused its discretion in determining the number of children before the court and the percentage of Feghhi’s income to be paid as child support. Under the alternative method of computing support for children in more than one household, an obligor who has one child before the court and two children for whom he has a duty of support should pay sixteen percent of his net resources for child support. Tex. Fam. Code Ann. §154.129 (Vernon 2002). In the final order, the trial court found that the percentage applied to his net resources for child support was sixteen percent and that there was one child before the court, but that there were two children not before the court residing in the same household as Feghhi. The record supports the trial court’s finding that Feghhi had two other children to support. The order of child support regarding the amount of children and the percentage applied to Feghhi’s net resources conformed to the child support guidelines. Therefore, we conclude that the trial court did not abuse its discretion in determining the number of children before the court and the percentage of Feghhi’s income to be paid as child support. See id. §§ 154.122 (a), 154.129.
Burgess also complains that the trial court abused its discretion when it failed to consider additional factors in determining child support. Under a liberal construction of Burgess’s argument, we conclude that she is referring to section 154.123 of the Texas Family Code. Section 154.123 states that a court may order child support payments in an amount other than that established by the child support guidelines if the evidence rebuts the presumption that application of the guidelines is in the best interest of the child and justifies a variance from the guidelines. See id. § 154.123(a) (Vernon 2002). To determine whether application of the child support guidelines would be unjust or inappropriate under the circumstances, a court shall consider evidence of all relevant factors including, among others, the age and needs of the child, the ability of the parents to contribute to the support of the child, any financial resources available for the support of the child, the amount of the obligee’s net resources, provision for health care insurance and payment of uninsured medical expenses, special or extraordinary educational, health care, or other expenses of the parties or of the child, positive or negative cash flow from any real and personal property and assets, including a business and investments, and any other reason consistent with the best interest of the child, taking into consideration the circumstances of the parents. See id. § 154.123(b).
According to the record, Burgess did not object that the trial court refused to consider these additional factors when it determined child support. Instead, she argued that Feghhi’s monthly net resources exceeded $6,000 and that the trial court should award child support based on that amount. The grounds asserted on appeal must comport with the objection at trial. Moser v. Davis, 79 S.W.3d 162, 169 (Tex. App.–Amarillo 2002, no pet.). An objection at trial that is not the same as the issue urged on appeal presents nothing for appellate review. Scurlock Permian Corp. v. Brazos Cty., 869 S.W.2d 478, 484 (Tex. App.–Houston [1st Dist.] 1993, writ denied). Because Burgess’s argument on appeal does not conform to her complaint during trial, she has waived this issue. See id.
Burgess also argues that the trial court did not consider the best interest of the child. However, the order of support conformed to the guidelines and, thus, was presumed to be in the best interest of the child. Tex. Fam. Code Ann. § 154.122. Moreover, in the final order, the trial court found that its order was in the best interest of the child. Burgess did not provide any argument or citations to the record to demonstrate how the child support order was not in the best interest of the child. Her argument consisted only of conclusory statements that the trial court failed to consider the child’s best interest. Because Burgess has failed to provide us with an adequate substantive analysis of this issue, she has presented nothing for our review. See Tex. R. App. P. 38.1(h).
Finally, Burgess argues that the trial court should have ordered child support beyond S.A.B.’s eighteenth birthday because she had continuing dental problems and Feghhi denied her medical insurance in the past. According to the Texas Family Code, a court may order child support until the child is 18 years of age or until graduation from high school, whichever occurs later or, if the child is disabled as defined in the statute, for an indefinite period. Tex. Fam. Code Ann. § 154.001(a) (Vernon 2002). Burgess does not argue that S.A.B. is under eighteen years of age, is still in high school, or is disabled. Therefore, the trial court did not abuse its discretion when it failed to order child support beyond the time limits imposed by the family code.
We overrule Burgess’s issues twenty through twenty-six.
Other Issues (Issues 27-37)
Burgess presents eleven other issues in her brief. More specifically, she argues as follows:
27. She should receive a new judge and reasonable accommodations and modifications under the Americans with Disabilities Act based upon her disability, which she characterized as an inability to focus;
28. Feghhi should pay for an attorney for S.A.B. and for the costs of the appeal;
29. The Attorney General should be ordered to perform a Financial Information Data Match on Feghhi and his family;
30. Feghhi was in contempt of the order in the suit for modification of child support because he failed to pay child support and provide medical insurance. She requests that Feghhi be placed on probation and be ordered to reimburse Burgess for those medical expenses;
31. We should determine Feghhi’s ability to pay child support and the amount of child support because of the untimeliness of this case. She specifically complains about the delays in the case;
32. The trial court erred or abused its discretion in failing to hold a hearing on her motion to compel;
33. Feghhi should be ordered to produce responses to her discovery because he failed to object;
34. Feghhi’s attorney should return the “lost papers”;
35. We should order that she receive a jury trial;
36. She was unfairly deprived of notice of all motions and pleadings in violation of her “rights”; and that
37. Feghhi concealed evidence, committed fraud and perjury, and misrepresented his resources.
Burgess has waived issues twenty-seven, twenty-eight, and twenty-nine because she did not complain during trial by a timely request, objection, or motion. See Tex. R. App. P. 33.1(a)(1). Because Burgess did not file a timely motion with the trial court regarding Feghhi’s failure to comply with the order in the suit for modification of child support, she has waived issue thirty. See Tex. R. App. P. 33.1(a)(1). Burgess failed to object to the delays at trial and, thus, she has waived issue thirty-one. See Tex. R. App. P. 33.1(a)(1). Because Burgess did not file a timely motion or request a hearing on her motion to compel, she has waived issue thirty-two. See Tex. R. App. P. 33.1(a)(1), (2).
Regarding issue thirty-three, we have already determined that Feghhi timely objected to Burgess’s discovery requests and that, although Burgess filed a motion to compel after the final hearing, she never requested that the motion be set for hearing, and did not obtain a ruling on her motion from the trial court. Because Burgess did not file a timely motion to compel or obtain a ruling on Feghhi’s objections, she has waived issue thirty-three. See Tex. R. App. P. 33.1(a)(1), (2). Regarding issue thirty-four, Burgess filed a motion on September 23, 2004 requesting that certain unspecified “lost papers” be returned. However, she did not request that the motion be set for a hearing and did not receive a ruling on her motion from the trial court. Because Burgess did not obtain a ruling on her motion, she has waived issue thirty-four. See Tex. R. App. P. 33.1(a)(1), (2). Even if she had obtained a ruling, however, we are unable to locate any authority permitting an appeal of such an order.
Regarding issue thirty-five, according to the Texas Family Code, a party may demand a jury trial except that the court may not submit to the jury questions on the issues of child support. Tex. Fam. Code Ann. § 105.002(a), (c)(2)(A) (Vernon 2002). Because this suit involved child support issues only, Burgess was not entitled to a jury trial. Thus, her complaint is without merit. Even if Burgess were entitled to a jury trial, the result would not change. According to Rule 216 of the Texas Rules of Civil Procedure, no jury trial shall be had in any civil suit unless a written request for a jury trial is filed with the clerk of the court not less than thirty days in advance of the date set for trial on the nonjury docket. Tex. R. Civ. P. 216(a). Had Burgess been entitled to a jury trial, by failing to request a jury trial thirty days in advance of the final hearing, she would have waived the issue.
Regarding issue thirty-six, Burgess did not provide any argument or citations to the record identifying the motions and pleadings she did not receive. Her argument consisted only of a conclusory statement that she did not receive notice of all motions and pleadings. Because Burgess has failed to provide us with an adequate substantive analysis of this issue, she has presented nothing for our review. We overrule Burgess’s issue thirty-six. See Tex. R. App. P. 38.1(h).
Finally, regarding issue thirty-seven, it is Burgess’s burden to present a sufficient record to the appellate court to show error requiring reversal. See Aguero, 225 S.W.3d at 238. The record contains only arguments and does not include any exhibits admitted into evidence. Although Burgess points to documents attached to her brief, we cannot consider documents attached to an appellate brief that do not appear in the record. See Till, 10 S.W.3d at 733. Because Burgess has not provided a record sufficient to show that Feghhi concealed evidence, committed fraud and perjury, and misrepresented his resources, she has waived this issue. See Aguero, 225 S.W.3d at 238.
We overrule Burgess’s issues twenty-seven through thirty-seven.
Disposition
The judgment of the trial court is affirmed. All pending motions are overruled.
BRIAN HOYLE
Justice
Opinion delivered July 31, 2007.
Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.
(PUBLISH)
1 We have liberally construed Burgess’s brief in order to give effect to her arguments. See Tex. R. App. P. 38.9. Under such a construction, we have determined that Burgess has raised thirty-seven issues.
2 The record does not contain any written orders requiring Feghhi to produce certain discovery. Nor did the trial court identify on the record which of Burgess’s discovery requests it considered proper. We cannot verify what discovery the trial court required Feghhi to produce and, thus, we rely on Feghhi’s uncontroverted statements to the trial court about the substance of its discovery orders.
3 Unless a suit is governed by a discovery control plan under Rules 190.2 or 190.4, discovery must be conducted in accordance with Rule 190.3 of the Texas Rules of Civil Procedure. See Tex. R. Civ. P. 190.3(a).
4 The trial court reviewed Burgess’s discovery requests at the June 28 hearing. However, Feghhi filed his responses and objections after the hearing.
5 The hearing on the motion for enforcement against Burgess was brief, and the State did not explain the subject matter of the motion. Further, the motion for enforcement is not a part of the clerk’s record.
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