In the Interest of N.J.R. and J.A.R., Children v. the State of Texas

Reversed and Remanded and Memorandum Opinion filed October 29, 2024.

In The

Fourteenth Court of Appeals

NO. 14-22-00943-CV

IN THE INTEREST OF N.J.R. AND J.A.R., CHILDREN

On Appeal from the 82nd District Court
Robertson County, Texas
Trial Court Cause No. 18-04-20524-CV

MEMORANDUM OPINION

In this suit affecting the parent-child relationship (SAPCR) appellee Mother
filed an original petition seeking the appointment of both parents as joint managing
conservators of their two children, N.J.R. and J.A.R. Mother further requested that
appellant Father be ordered to pay child support. Father did not file an answer to
Mother’s petition but he did appear on the day of trial. The trial court signed a final
order appointing both parents joint managing conservators, giving Mother the right
to designate the primary residence of the children without geographic restrictions,
and ordering Father to pay monthly child support. Father appealed asserting the
evidence is legally and factually insufficient to support the trial court’s judgment.
Concluding that Mother did not meet her burden to present evidence in support of
the judgment, we reverse and remand to the trial court.

BACKGROUND

On April 17, 2018, Mother filed an original SAPCR seeking joint
conservatorship of two children she had with Father in 2014 and 2015. Father did
not file an answer. On April 30, 2018, the trial court entered temporary orders in
the SAPCR in which the court appointed the parents temporary joint managing
conservators. The trial court further ordered that the primary residence of the
children should be in Bremond, Robertson County, Texas, and that neither parent
should remove the children from Bremond. The trial court’s temporary orders also
required Father to pay $1500 per month in child support to Mother.

More than four years later, on November 8, 2022, the trial court held a
hearing on Mother’s original petition. Father had still not filed an answer, but he
appeared in person at the hearing. Mother asserted that the temporary orders should
be made final with two exceptions: (1) lifting the geographic restriction on the
children’s primary residence, and (2) adding a judgment for past-due child support.
Father told the trial court that he did not agree to lifting the geographic restriction,
nor did he agree to maintaining the temporary orders as final orders. The trial court
admitted into evidence records from the attorney general’s office of Father’s partial
child support payments beginning in 2018.

Father told the trial court he was represented by counsel whom Father
thought had sent an email to Mother’s counsel explaining Father’s objections to
maintaining the temporary orders. The trial court had no record of an appearance
by Father’s purported attorney and instructed the clerk to call the attorney, but the
attorney did not answer the court’s calls. At that time, Mother’s counsel reported
that she found the email Father’s counsel sent proposing an order that differed
2
from the temporary orders. Mother’s counsel did not respond to the proposed order
because she did not see the email that was sent three months before the final
hearing. The trial court temporarily adjourned the hearing to try and reach Father’s
attorney but never reconvened.

One month later, the trial court signed a final order awarding primary
custody to Mother, removing the geographic restriction, and ordering Father to pay
child support. This appeal followed.

ANALYSIS 1

In three issues Father challenges the legal and factual sufficiency of the
evidence to support the trial court’s findings of (1) paternity; (2) that the orders of
possession, conservatorship, rights and duties, and lack of geographic restriction
were in the best interest of the children; and (3) child support.

I. Standard of Review and Applicable Law

“The best interest of the child shall always be the primary consideration of
the court in determining the issues of conservatorship and possession of and access
to the child.” Tex. Fam. Code § 153.002. A trial court’s determination of what is in
the child’s best interest, specifically the establishment of terms and conditions of
conservatorship, is a discretionary function. In re J.J.R.S., 627 S.W.3d 211, 218
(Tex. 2021). The trial court’s judgment will be reversed only when it appears from
the record as a whole that the court abused its discretion. Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982). Generally, the test for abuse of discretion is whether
1
The Supreme Court of Texas ordered the Tenth Court of Appeals to transfer this case to
this court. See Tex. Gov’t Code Ann. § 73.001. Under the Texas Rules of Appellate Procedure,
“the court of appeals to which the case is transferred must decide the case in accordance with the
precedent of the transferor court under principles of stare decisis if the transferee court’s decision
otherwise would have been inconsistent with the precedent of the transferor court.” Tex. R. App.
P. 41.3. We are unaware of any conflict between the Tenth Court of Appeals precedent and that
of this court on any relevant issue.

3
the trial court acted arbitrarily or unreasonably, or whether it acted without
reference to any guiding rules or principles. See Downer v. Aquamarine Operators,
Inc., 701 S.W.2d 238, 242 (Tex. 1985).

If a party asserts that the trial court abused its discretion due to a lack of
evidence, we engage in a two-pronged inquiry to determine whether the trial court
(1) had sufficient information on which to exercise its discretion and (2) erred in its
application of discretion. Matter of Marriage of Elabd, 589 S.W.3d 280, 284 (Tex.
App.—Waco 2019, no pet.). Thus, there is ordinarily no abuse of discretion when
some evidence of a substantive and probative character exists to support the trial
court’s decision. In re Dart, 648 S.W.3d 652, 654 (Tex. App.—Waco 2022, pet.
denied).

When examining legal sufficiency, we review the entire record, considering
evidence favorable to the finding if a reasonable factfinder could and disregarding
contrary evidence unless a reasonable factfinder could not. Gunn v. McCoy, 554
S.W.3d 645, 658 (Tex. 2018). We indulge every reasonable inference that would
support the challenged finding. Id. Evidence is legally sufficient if it would enable
reasonable and fair-minded people to reach the decision under review. Id.

For a factual-sufficiency review, we examine the entire record and consider
evidence favorable and contrary to the challenged finding. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986) (per curiam). We may set aside the trial court’s
finding only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Id.

We therefore review the record for abuse of discretion to determine whether
Mother presented sufficient evidence at the final hearing to support the trial court’s
order. Gillespie, 644 S.W.2d at 451.

4
II. Sufficiency of the evidence

A. Paternity, the best interests of the children, and conservatorship

When determining what is in the best interest of the children, the trial court
“should ensure that it is as well-informed as the circumstances allow,” and a
determination is “rarely well-informed without consideration of the evidence and
the perspective of the parents.” Nalley v. Quevedo, No. 01-20-00400-CV, 2022
WL 1547780, at *7 (Tex. App.—Houston [1st Dist.] May 17, 2022, no pet.) (mem.
op.) (quoting Williams v. Williams, 150 S.W.3d 436, 446 (Tex. App.—Austin
2004, pet. denied)). “[T]he best interest of the child requires that issues be as fully
developed as possible, and technical rules of pleading and practice are not of
controlling importance.” Id.

Where the parents of children are or will be separated, the trial court is
required to appoint “at least one managing conservator” of the children and may
appoint a sole managing conservator or joint managing conservators. Tex. Fam.
Code § 153.005(a). In making its appointment, the trial court shall consider
whether, preceding the filing of the suit or during the pendency of the suit: (1) a
party engaged in a history or pattern of family violence; (2) a party engaged in a
history or pattern of child abuse or child neglect; or (3) a final protective order was
rendered against a party. Id., at § 153.005(c). When the petitioner alleges any of
these requirements, she must prove them by a preponderance of the evidence.
Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex. App.—Dallas 2004, no pet.).

In his first issue, Father alleges there is no evidence he was married to
Mother at the time the children were born, and no evidence of paternity was
presented to support the trial court’s final orders on conservatorship, possession,
rights and duties, and child support. Father did not contest paternity with the trial
court, nor does he contest it on appeal. He raises the issue of the legal and factual
5
sufficiency of the evidence of paternity for the first time on appeal. Tex. R. App. P.
33.1(d) (in a civil nonjury case a party may raise a complaint regarding the legal
and factual insufficiency of the evidence for the first time on appeal).

Mother asserts the allegations in her petition support the final order and
satisfy her evidentiary burden on all issues because Father failed to file a formal
answer resulting in a no-answer default judgment. She argues the no-answer
default judgment deems the allegations in her petition as true and established. We
disagree that the trial court entered a default judgment against Father and that
Mother could use the allegations in her petition as evidence.

First, Father appeared in-person at the final hearing. Whether or not Father
filed an answer, his appearance in court defeats an entry of default judgment
against him because default judgments should be a judicial last resort that occur
when “the losing party is wholly absent”. See In re Lakeside Resort JV, LLC 689
S.W.3d 916, 920 (Tex. 2024) (describing default judgments as “greatly disfavored”
and “only tolerable because the absent party could have appeared but chose not to
do so”). Second, the final order entered by the trial court makes no mention of a
default judgment. See Sedona Pac. Hous. P’ship v. Ventura, 408 S.W.3d 507, 511
(Tex. App.—El Paso 2013, no pet.) (finding the court intended to enter a default
judgment when defendant failed to appear at trial and the final judgment recited
words indicating default). Here, the trial court took efforts to cross out the portion
of the order stating Father defaulted and handwrote “appeared in person.” [CR 69]
This shows the final orders were not the product of a default judgment hearing but
rather a judgment signed following a trial during which Mother was required to
prove her allegations by a preponderance of the evidence.2 Agraz, 143 S.W.3d at

2
Even if we concluded that the trial court’s judgment was a no-answer default judgment, the result would
be the same because the Texas Family Code precludes taking a petition as confessed when the respondent
fails to file an answer in suits for divorce. Tex. Fam. Code Ann. § 6.701; Agraz, 143 S.W.3d at 522. In a
6
553.

Having examined the entire record, we can find no evidence to support the
trial court’s findings on paternity, the best interest of the children, and
conservatorship. We sustain Father’s first two issues.

B. Child Support

Family Code Chapter 154 governs child support proceedings and sets forth
guidelines to apply in determining an equitable amount of child support. See Tex.
Fam. Code §§ 154.001–154.309. Under section 154.062, a court “shall calculate
net resources for the purpose of determining child support liability.” Id. §
154.062(a). “Resources” include wage and salary income, interest and dividends,
self-employment income, net rental income, and all other income actually being
received. Id. § 154.062(b)(1)-(5). “There must be some evidence of a substantive
and probative character of net resources” for the trial court to discharge its duty
under section 154.062. Newberry v. Bohn–Newberry, 146 S.W.3d 233, 236 (Tex.
App.—Houston [14th Dist.] 2004, no pet.). “In the absence of evidence of a party’s
resources, as defined by Section 154.062(b), the court shall presume that the party
has income equal to the federal minimum wage for a 40-hour week to which the
support guidelines may be applied.” Tex. Fam. Code § 154.068(a).

The Family Code requires a trial court to “calculate net resources” in
determining a party’s current and retroactive child support obligations. Tex. Fam.
Code §§ 154.062(a), 154.131(b); Miles v. Peacock, 229 S.W.3d 384, 390 (Tex.
App.—Houston [1st Dist.] 2007, no pet.). The only evidence admitted at the
hearing in the trial court was a list of child support payments made by Father since
divorce case where the respondent failed to answer, “the petitioner must present evidence to support the
material allegations in the petition.” Id. at 552. Other intermediate courts of appeals, including this one,
have applied section 6.701 to original SAPCRs. See, e.g., In re J.M.M., 549 S.W.3d at 295–97 (visitation
and conservatorship); Davis v. Ross, 678 S.W.2d 636, 638 (Tex. App.—Houston [1st Dist. 1984, no writ]
(visitation).
7
the temporary orders were entered. Having reviewed the entire record, we find no
evidence concerning Father’s employment, wages, salary, or income. We therefore
sustain Father’s third issue.

To rectify the issue, Father requests this court to apply the statutory
presumption of income and render judgment that his child support payments be
calculated according to the federal minimum wage for a 40-hour work week.
Having reversed and remanded the trial court’s order on paternity and
conservatorship, we decline to render judgment on the amount of child support
payments and remand this issue for further proceedings. Marquez v. Moncada, 388
S.W.3d 736, 740-41 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing Office
of Atty. Gen. of Tex. v. Burton, 369 S.W.3d 173, 174 (Tex. 2012) (per curiam)
(declining to render judgment of federal minimum wage calculations and
remanding case to trial court for further proceedings when no evidence supported
judgment in suit to confirm child support arrearage); Moreno v. Perez, 363 S.W.3d
725, 736 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (reversing child support
finding with no evidentiary support and remanding for further proceedings on trial
court’s net resources findings); and Miles v. Peacock, 229 S.W.3d 384, 390–91
(Tex. App.—Houston [1st Dist.] 2007, no pet.) (remanding trial court’s calculation
of appellant’s net resources for further proceedings).

CONCLUSION

We conclude the trial court abused its discretion when it signed a final order
without evidentiary support. In this final SAPCR proceeding the court could not
rely on Mother’s pleadings alone without evidence to support the court’s findings.
We therefore hold that the evidence is legally insufficient to support the trial
court’s order. Having sustained Father’s issues on appeal, we reverse the trial
court’s final order and remand to the trial court for proceedings on all issues

8
including paternity, custody, and support.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

9