Dean Cory Roblin v. Deborah Susan Briggs

• Court: Court of Appeals of Texas
• Decided: October 28, 2010
• Docket: 13-09-00475-CV
• Status: Published

Opinion

NUMBER 13-09-00475-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

DEAN CORY ROBLIN, Appellant,

v.

DEBORAH SUSAN BRIGGS, Appellee.

On appeal from the County Court at Law No. 1 of Montgomery County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Rodriguez and Vela Memorandum Opinion by Chief Justice Valdez

Appellant, Dean Cory Roblin, advancing pro se, appeals from a trial court order

sustaining a contest to his affidavit of indigence filed by appellee, Deborah Susan Briggs.

By one issue, appellant asserts that the trial court abused its discretion in denying his

request for indigent status. We affirm. I. BACKGROUND

According to appellant, he and appellee were married in December 2004. At an

unspecified time in 2009, appellant filed a petition for divorce. On May 14, 2009, the trial

court conducted a hearing on the divorce petition, and on May 28, 2009, the trial court

signed the final divorce decree, awarding appellant various pieces of personal property,

including three cars, an eight-person spa, $12,000 to be paid by appellee,1 and rights to

his personal retirement accounts and life insurance proceeds.2

On June 17, 2009, appellant filed a pro se notice of appeal, challenging the final

divorce decree.3 Also on June 17, 2009, appellant filed an affidavit of indigence, stating

that he: (1) earned $1,506 per month in income as a governmental employee for

Montgomery County4; (2) was owed $12,000 from appellee, but she failed to make the

payment; (3) had $1,690 in monthly obligations; (4) owned one car—a 2002 Mitsubishi

1 The $12,000 was paid by appellee to appellant in exchange for rights to the couple’s house in Conroe, Texas. The am ount the trial court ordered appellee to pay appellant represented appellant’s fifty- percent share in the equity of the house.

2 The record reflects that the divorce decree m irrored a m ediated settlem ent agreem ent that the parties entered into prior to the May 14, 2009 hearing.

3 In addition to this appeal, appellant has filed four other notices of appeal com plaining about various actions taken by the trial court and opposing counsel in the underlying m ediation and divorce proceedings. Appellant has filed one brief addressing all of his issues in each of the five appeals he has filed. In his appellate brief, appellant details his appeals as follows:

1. In his first appeal filed on June 17, 2009, appellant com plains about the trial judge’s refusal to allow him “to add a list of credit/debit cards to the Final [Divorce] Decree”;

2. In his second appeal filed on July 27, 2009, appellant com plains about the trial court’s decision regarding his indigent status;

3. In his third appeal filed on Septem ber 10, 2009, appellant com plains about the trial judge’s refusal to recuse him self from appellant’s divorce proceedings;

4. In his fourth appeal filed on October 2, 2009, appellant com plains about the trial court’s just and right division of the m arital property; and

5. In his fifth appeal filed on Novem ber 25, 2009, appellant com plains about other actions taken by the trial judge and opposing counsel during appellant’s divorce proceedings.

4 In her contest to appellant’s affidavit of indigence, appellee alleged, am ong other things, that appellant is em ployed by the Office of the District Clerk in Montgom ery County. 2 Galant of unknown value—and some various pieces of personal property; and (5) did not

own any stocks, bonds, or real property. See TEX . CIV. PRAC . & REM . CODE ANN . §

13.003(a)(2)(A) (Vernon 2002) (stating that an appellant is entitled to a free record on

appeal if he is deemed indigent and the appeal is not frivolous). On June 22, 2009,

appellee filed a response and contest to appellant’s affidavit of indigence. In her filing,

appellee asserted that appellant failed to mention in his indigence affidavit that he has a

retirement account valued at approximately $15,000 and that he owns two other

vehicles—a 1974 Mercury Cougar and a 1979 Ford pickup truck—awarded to appellant

in the divorce decree. Appellant filed a response to appellee’s contest and noted, among

other things, that he also has a $10,000 life insurance policy funded by Montgomery

County; his total monthly expenses are $1,800 per month; and that his annual income is

about $22,000, which he believes “would possibly qualify me for food stamps and other

public assistance.”5 See, e.g., Griffin Indus., Inc. v. Honorable Thirteenth Court of Appeals,

934 S.W.2d 349, 351 (Tex. 1996) (orig. proceeding) (stating that an applicant meets his

burden of proof at the hearing on the contest to the affidavit of inability to pay costs if he

proves that he depends on public assistance) (citing Goffney v. Lowry, 554 S.W.2d 157,

159-60 (Tex. 1977)). Appellant subsequently filed an amended affidavit of indigence on

June 30, 2009, listing in greater detail his financial situation.

On July 1, 2009, the trial court conducted a hearing on appellee’s contest to

appellant’s indigence affidavit. At the conclusion of the hearing, the trial court sustained

appellee’s contest and denied appellant’s request for indigence status. This appeal

5 At no point in this case has appellant dem onstrated that he relies on public assistance. He claim ed at the July 1, 2009 hearing on appellee’s contest that he som etim es goes “to the food bank.” 3 followed.6

II. STANDARD OF REVIEW AND APPLICABLE LAW

Generally, a party may proceed on appeal without advance payment of costs if (1)

he files an affidavit of indigence in compliance with rule 20.1 of the Texas Rules of

Appellate Procedure, (2) his claim of indigence is not contested or any contest is not

sustained, and (3) a timely notice of appeal is filed. See TEX . R. APP. P. 20.1(a); see also

Kastner v. Martin & Drought, P.C., No. 04-08-00779-CV, 2009 Tex. App. LEXIS 1534, at

**2-3 (Tex. App.–San Antonio Mar. 11, 2009, pet. denied) (mem. op.). The affidavit of

indigence must identify the party filing it and state the amount of costs, if any, the party can

pay. TEX . R. APP. P. 20.1(a)(2). The affidavit must also contain the information mandated

by rule 20.1(b), which requires the party claiming indigence to provide detailed financial

information. Id. at R. 20.1(b). The trial court clerk, the court reporter, or any party may

challenge the claim of indigence by filing a contest to the affidavit. Id. at R. 20.1(e). If a

contest is filed, the party who filed the affidavit must prove the allegations contained in the

affidavit. Id. at R. 20.1(g).

The test for determining indigence in the trial court is whether the applicant shows

by a preponderance of the evidence that he would be unable to pay the appellate costs,

or a part thereof, even “‘if he really wanted to and made a good faith effort to do so[.]’”

Higgins v. Randall County Sheriff’s Office, 257 S.W.3d 684, 686 (Tex. 2008) (quoting

Pinchback v. Hockless, 139 Tex. 536, 164 S.W.2d 19, 20 (1942)); see Griffin Indus., Inc.,

934 S.W.2d at 351; see also Kastner, 2009 Tex. App. LEXIS 1534, at *3. Where a trial

court sustains a contest, we review that determination for an abuse of discretion. See

Rodgers v. Mitchell, 83 S.W.3d 815, 818 (Tex. App.–Texarkana 2002, no pet.); In re Smith, 6 All of appellant’s appeals were transferred to this Court from the Ninth Court of Appeals pursuant to a docket-equalization order issued by the Texas Suprem e Court. See T EX . G OV ’T C ODE A N N . § 73.001 (Vernon 2005). 4 70 S.W.3d 167, 168 (Tex. App.–San Antonio 2001, no pet.); Arevalo v. Millan, 983 S.W.2d

803, 804 (Tex. App.–Houston [1st Dist.] 1998, no pet.); see also Kastner, 2009 Tex. App.

LEXIS 1534, at **3-4; Kastner v. Tex. Bd. of Law Examiners, No. 03-08-00515-CV, 2009

Tex. App. LEXIS 6381, at *5 (Tex. App.–Austin Aug. 12, 2009, no pet.) (mem. op.); but see

Baughman v. Baughman, 65 S.W.3d 309, 316 n.5 (Tex. App.–Waco 2001, pet. denied)

(holding that the standards for reviewing the sufficiency of evidence should be used to

review a trial court’s ruling on indigence). A trial court abuses its discretion when its

decision is arbitrary, unreasonable, or without reference to any guiding rules or legal

principles. See K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); see also

Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).

III. ANALYSIS

In his sole issue, appellant contends that the trial court abused its discretion in

sustaining appellee’s contest to his affidavit of indigence. Specifically, appellant, without

citing authority for his argument, asserts that the trial court abused its discretion by

considering appellant’s gross income, rather than net income, to determine indigence.

Appellee has not filed a brief in this matter.

At the July 1, 2009 hearing, the trial court heard arguments from appellant and

appellee. Appellant admitted that he did not have to pay rent anymore and that his

“medical expenses are pretty high.” When asked whether he had bills or other

documentation to establish his monthly income and expenses, appellant stated that he did

not have such documentation at the hearing but that it was at home. Appellant insisted

that the Internal Revenue Service informed him that his income level was $22,000;

however, he was initially unable to provide the trial court with documentation regarding his

true income level. Given his inability to establish his income level, appellant was instructed

5 by the trial court to obtain documentation from the county regarding his income level.

County records revealed that appellant makes $27,343.66 in gross income as a deputy

district clerk, or Clerk II, for Montgomery County. Appellant also admitted that he pawns

things to supplement his income and that, of the things awarded to him in the divorce, he

has not tried to sell any of those assets to secure additional income because the assets

are “used.”7

With respect to appellant’s indigence status, the following exchange occurred:

Q [Counsel for Appellee]: By way of your recent amendment here to your pauper’s oath, what you’re saying, in essence, is that you’re not indigent; is that correct?

A [Appellant]: That’s true, I’m not indigent. I have a job[,] and I am fully employed and I make [$]1[,]668 net as it asks for, not gross a month.

Q: Okay. So, you’re not claiming indigence and you made that clear in your—

A: That’s correct. That’s correct.

Q: —amended response, et cetera, et cetera?

A: And it doesn’t say indigent on here, it says amended affidavit of inability to pay cost[s]. I’m simply saying I’m unable to pay costs at this time due to my current monthly obligation[s].

Later, appellant recanted his prior testimony and stated that he is indigent because “I have

no money.”

At the conclusion of the hearing, the trial court sustained appellee’s contest and

denied appellant indigence status. On appeal, appellant has not cited to portions of the

record or authority supporting his contention that the trial court abused its discretion. See

TEX . R. APP. P. 38.1(i). Although appellate courts liberally construe briefs by pro se

7 Appellant later adm itted that he does have “som ething on pawn right now” that presum ably would result in appellant earning supplem ental incom e. 6 litigants, we must hold them to the same standards as licensed attorneys and require them

to comply with all applicable laws and rules of procedure. See TEX . R. APP. P. 38.9;

Sterner v. Marathon Oil Co., 767, S.W.2d 686, 690 (Tex. 1989); Green v. Kaposta, 152

S.W.3d 839, 841 (Tex. App.–Dallas 2005, no pet.); see also Siddiqui v. Siddiqui, No. 14-

07-00235-CV, 2009 Tex. App.1443, at *4 (Tex. App.–Houston [14th Dist.] Mar. 3, 2009,

pet. denied) (mem. op.) (“While we have compassion for the plight of the pro se litigant

attempting to follow the rules of legal procedure and substantive laws, and therefore

construe pro se pleadings and briefs liberally, we must still hold appellant to the same

standard as a licensed attorney, requiring that he follow those same rules and laws . . . .

To do otherwise would give a pro se litigant an unfair advantage over a litigant represented

by counsel.”). When a party fails to cite to the record or to legal authority in their brief,

nothing is presented for review. See Republic Underwriters Ins. Co. v. Mex-Tex, Inc., 150

S.W.3d 423, 427 (Tex. 2004); see also Johnson v. City of Dallas, No. 05-09-00365-CV,

2010 Tex. App. LEXIS 4668, at *2 (Tex. App.–Dallas June 22, 2010, no pet.) (mem. op.)

(“Although we must interpret this requirement [Texas Rule of Appellate Procedure 38.1(i)]

liberally, an issue not supported by authority is waived.”); McCray v. Flores, No. 09-03-076-

CV, 2003 Tex. App. LEXIS 3551, at **2-3 (Tex. App.–Beaumont Apr. 24, 2003, no pet.)

(mem. op.) (“We must construe the Rules of Appellate Procedure ‘reasonably, yet liberally,

so that the right to appeal is not lost by imposing requirements not absolutely necessary

to effect the purpose of a rule.’”) (quoting Verburgt v. Dorner, 959 S.W.2d 615, 616-17

(Tex. 1997)). Therefore, because appellant’s brief fails to comply with rule 38.1 of the

Texas Rules of Appellate Procedure, his issue is inadequately briefed. See TEX . R. APP.

P. 38.1(i).

However, assuming that he had adequately briefed his issue on appeal, we

7 conclude that there is nothing in the record before us, besides appellant’s bald assertions

and allegations, demonstrating that appellant satisfied his burden of proving indigence.

See Higgins, 257 S.W.3d at 686; Griffin Indus., Inc., 934 S.W.2d at 351; Pinchback, 164

S.W.2d at 20; see also Kastner, 2009 Tex. App. LEXIS 1534, at *3. Appellant is gainfully

employed by Montgomery County, earning $27,343.66 in gross income per year, and he

has not provided sufficient evidence demonstrating his monthly obligations. Moreover, the

record does not contain documentation establishing appellant’s net income per year.

Based on the foregoing, we cannot say that appellant sustained his burden in proving

indigence; therefore, he is not entitled to a free record on appeal. See TEX . CIV. PRAC . &

REM . CODE ANN . § 13.003; Higgins, 257 S.W.3d at 686; Griffin Indus., Inc., 934 S.W.2d at

351; Pinchback, 164 S.W.2d at 20; see also Kastner, 2009 Tex. App. LEXIS 1534, at *3.

Given this, we conclude that the trial court did not abuse its discretion in sustaining

appellee’s contest and denying appellant indigence status. See Rodgers, 83 S.W.3d at

818; In re Smith, 70 S.W.3d at 168; Arevalo, 983 S.W.2d at 804; see also Kastner, 2009

Tex. App. LEXIS 1534, at **3-4; Tex. Bd. of Law Examiners, 2009 Tex. App. LEXIS 6381,

at *5. Accordingly, we overrule appellant’s sole issue.

IV. CONCLUSION

Having overruled appellant’s sole issue, we affirm the trial court’s judgment.

ROGELIO VALDEZ Chief Justice

Delivered and filed the 28th day of October, 2010.