in the Interest of C.N.M., a Child

• Court: Court of Appeals of Texas
• Decided: March 23, 2011
• Docket: 10-10-00178-CV
• Status: Published

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-10-00178-CV

IN THE INTEREST OF C.N.M., A CHILD

From the 66th District Court Hill County, Texas Trial Court No. 33680

MEMORANDUM OPINION

James McDaniel appeals from the foreclosure of a child support lien placed

against funds he had in his possession at the time of his arrest on an unrelated charge

and against funds that were given to him by family members while he was incarcerated.

Because we find no error and due to McDaniel’s inadequate briefing, we affirm the

judgment of the trial court.

Procedural History

The Office of the Attorney General filed an enforcement action against McDaniel

and also sought foreclosure of a child support lien it had imposed on the funds in

McDaniel’s account with the sheriff’s department. At a hearing before the Title IV-D

associate judge, McDaniel was adjudged to be approximately $65,000 in arrears on child support; however, $45,000 of the debt was released at that hearing by the custodial

parent. Additionally, the associate judge ordered that the funds that were subject to the

lien were foreclosed and to be paid to the State of Texas. McDaniel sought a de novo

review before the trial court.1 At the de novo hearing, which McDaniel did not attend,

the trial court entered the same order from the hearing before the associate judge. It is

from that order that McDaniel appeals.

McDaniel represented himself, both before the trial court and on appeal. Because

of this, it is tremendously difficult to determine what his issues are in this appeal in his

brief to this Court. McDaniel asks this Court to entirely overlook his poor briefing and

failure to follow the rules of appellate procedure.

Pro Se Litigants

Initially we must note that pro se litigants are held to the same standards as

licensed attorneys and must comply with all applicable rules of procedure. Sweed v.

City of El Paso, 195 S.W.3d 784, 786 (Tex. App.—El Paso 2006, no pet.); Strange v. Cont’l

Cas. Co., 126 S.W.3d 676, 677 (Tex. App.—Dallas 2004, pet. denied). A pro se litigant is

required to properly present his case on appeal just as he is required to do at the trial

court. Strange, 126 S.W.3d at 678. This Court has no duty to perform an independent

review of the record and applicable law to determine whether there was error. Strange,

126 S.W.3d at 678. Were we to do so, even on behalf of a pro se litigant, we would be

forced to stray from our role as neutral adjudicators and become an advocate for that

1 McDaniel filed a document entitled “Motion to Reopen and Notice of Appeal” which the trial court construed to be a request for a de novo hearing. See TEX. FAM. CODE ANN. § 201.1042 (West 2008).

In the Interest of C.N.M. Page 2 party. See Plummer v. Reeves, 93 S.W.3d 930, 931 (Tex. App.—Amarillo 2003, pet.

denied). Similarly, we cannot and will not speculate as to the substance of the issues

McDaniel urges us to address but fails to appropriately include in his brief. See Strange,

126 S.W.3d at 678.

The Texas Rules of Appellate Procedure require an appellant’s brief to concisely

state all issues or points presented for review. TEX. R. APP. P. 38.1(f). An issue

presented in an appellant’s brief is sufficient if it directs the attention of the appellate

court to the error about which the complaint is made. See Maddox, 135 S.W.3d at 163-64.

Appellant’s brief must also contain a clear and concise argument containing appropriate

citations to authority and to the record. See TEX. R. APP. P. 38.1(h). This requirement is

not satisfied by conclusory statements, unsupported by legal citations. Sweed, 195

S.W.3d at 786. Failure to cite legal authority or provide substantive analysis of an issue

waives the complaint. See Taylor v. Meador, 326 S.W.3d 682, 684 (Tex. App.—El Paso

2009, no pet.).

McDaniel’s Issues on Appeal

McDaniel’s complaints appear to be: (1) his failure to be present at the de novo

hearing, (2) the trial court’s foreclosure of the funds subject to the child support lien

because the funds were not his, and (3) the foreclosure of the funds is an excessive and

irrational sanction. McDaniel does not attack the validity of the lien itself.

We note that there is nothing in the record to indicate that McDaniel sought to

attend or otherwise appear at the hearing before the trial court, nor did he file a motion

for continuance asking for a delay. See Graves v. Atkins, No. 01-04-00423, 2006 Tex. App.

In the Interest of C.N.M. Page 3 LEXIS 10975, 2006 WL 3751612, at * 3 (Tex. App.—Houston [1st Dist.] Dec. 21, 2006, no

pet.) (“To be entitled to appear in person or through video communications technology

. . . the burden rests squarely on the prisoner-inmate to request access to the court

through these alternate means and to demonstrate why a trial court should authorize

them”) (citing In re Z.L.T., 124 S.W.3d at 166). This complaint is waived.

Further, there is nothing in the record to indicate that McDaniel’s girlfriend

sought to intervene or appear on her own behalf to claim ownership of the funds as

required by section 157.326 of the Family Code. There is an affidavit signed by his

girlfriend claiming ownership of the funds; however, it does not appear in the clerk’s

record until it was filed several days after the entry of the final judgment. The burden

of proof when there is a dispute regarding the ownership of the funds is on the

individual seeking to prove their ownership of the funds, not the obligor. TEX. FAM.

CODE ANN. § 157.326(c) (West 2008). This complaint is overruled.

McDaniel also complains that the foreclosure of the child support lien constitutes

an excessive or irrational fine or sanction. We are unable to determine from McDaniel’s

brief how the foreclosure of the funds should be construed as a fine or how it

constituted a violation of the excessive fines section of the Eighth Amendment to the

Constitution. U.S. Const. amend. VIII. We are also unable to determine how the due

process and equal protection clauses relate to McDaniel’s claims. Rather, McDaniel

merely states that the “sanction” is “downright irrational” and “excessive.” He does

not explain his contention regarding why the foreclosure of the lien constitutes a

sanction or forfeiture rather than compensation for his child support obligation, and

In the Interest of C.N.M. Page 4 provides no authorities that support that contention. This issue is waived due to

inadequate briefing and therefore, is overruled.

Conclusion

Having found no error, we affirm the judgment of the trial court.

TOM GRAY Chief Justice

Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed March 23, 2011 [CV06]

In the Interest of C.N.M. Page 5