in the Interest of H.O., a Child

• Court: Court of Appeals of Texas
• Decided: May 20, 2015
• Docket: 04-14-00263-CV
• Status: Published

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00263-CV

In the Interest of H.O., a Child

From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2012-EM5-01553 Honorable Karen H. Pozza, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Karen Angelini, Justice Marialyn Barnard, Justice Rebeca C. Martinez, Justice

Delivered and Filed: May 20, 2015

AFFIRMED

This appeal is from a final judgment in a paternity suit. In two issues, the child’s mother,

Griselda Ortiz, argues the trial court abused its discretion by not ordering retroactive child support

and by ordering current child support in the amount of $1500.00 per month. We affirm.

BACKGROUND

In 1996, Ortiz met Carlos Guerrero. The two had a romantic relationship. At the time, Ortiz

and Guerrero were living in Mexico. Guerrero was a physician. Ortiz was a nurse. Ortiz began

working in a medical clinic owned by Guerrero. In 1997, Ortiz gave birth to H.O. Guerrero was

present at H.O.’s birth. After H.O.’s birth, Ortiz continued to work for Guerrero and the two

continued to be romantically involved. In 2004, Ortiz and Guerrero’s relationship ended, and Ortiz

and H.O. moved to San Antonio, Texas. 04-14-00263-CV

In March 2012, the Texas Attorney General filed a suit to establish the parent-child

relationship, in which it alleged that Guerrero was H.O.’s father. At first, Guerrero admitted

paternity, but he later withdrew his admission of paternity and requested genetic testing. Genetic

testing was performed and it established that Guerrero was H.O.’s biological father. In October

2013, the trial court held a hearing on the merits. Ortiz and Guerrero testified about matters related

to child support. After hearing the evidence, the trial court ordered Guerrero to pay current child

support of $1500.00 per month but ordered no retroactive child support. Ortiz appealed.

STANDARD OF REVIEW

We review a trial court’s orders for retroactive and current child support for an abuse of

discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In the Interest of B.R., 327

S.W.3d 208, 210 (Tex. App.—San Antonio 2010, no pet.), disapproved of on other grounds by

Iliff v. Iliff, 339 S.W.3d 74 (Tex. 2011). A trial court abuses its discretion when it acts without

reference to any guiding principles or rules. Worford, 801 S.W.2d at 109; B.R., 327 S.W.3d at 210.

In determining whether the trial court abused its discretion, we do not substitute our judgment for

that of the trial court, and we will not disturb the trial court’s decision unless it is shown to be

arbitrary and unreasonable. B.R., 327 S.W.3d at 210-11 (citing Walker v. Packer, 827 S.W.2d 833,

839-40 (Tex. 1992) (orig. proceeding)). The trial court does not abuse its discretion if there is some

evidence of substantive and probative character to support its decision. Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 211 (Tex. 2002); id. at 211.

RETROACTIVE CHILD SUPPORT

In her first issue, Ortiz argues the trial court abused its discretion in finding that Guerrero

had supported the child since birth and in failing to order retroactive child support.

The Texas Family Code provides that, upon a finding of parentage in a paternity action, a

trial court may order retroactive child support as provided by Chapter 154 of the Family Code. -2- 04-14-00263-CV

TEX. FAM. CODE ANN. § 160.636(g) (West 2014). In determining whether to order retroactive child

support, the trial court must consider the net resources of the obligor during the relevant time

period, and whether (1) the mother had made any previous attempts to notify him of his paternity

or his probable paternity; (2) the obligor had knowledge of his paternity or probable paternity; (3)

the order will impose an undue hardship on the obligor or his family; and (4) the obligor has

provided actual support or other necessaries before the filing of the action. TEX. FAM. CODE ANN.

§ 154.131(b) (West 2014). Section 154.131 does not bind the trial court to the listed factors in

determining retroactive child support. B.R., 327 S.W.3d at 212; Garza v. Blanton, 55 S.W.3d 708,

709 (Tex. App.—Corpus Christi 2001, no pet.). The statutory language vests the trial court with

discretion as to whether or not to award retroactive child support. B.R., 327 S.W.3d at 212; In the

Interest of Guthrie, 45 S.W.3d 719, 727 (Tex. App.—Dallas 2001, pet. denied). Retroactive child

support is not mandatory. Randolph v. Randolph, 14-04-00180-CV, 2005 WL 2276873, at *1 (Tex.

App.—Houston [14th Dist.] Sept. 20, 2005, no pet.). A trial court has discretion in deciding

whether to award retroactive child support, and in deciding the amount of the award. In the Interest

of Valadez, 980 S.W.2d 910, 913 (Tex. App.—Corpus Christi 1998, no pet.); In the Interest of

J.H., 971 S.W.2d 550, 551 (Tex. App.—San Antonio 1997, no pet.).

At the hearing, Guerrero testified that he and Ortiz had an agreement about child support

since the time H.O. was born. According to Guerrero, he and Ortiz agreed that every month he

would pay her an amount equal to the “normal” salary of a nurse in Mexico. After Ortiz stopped

working at Guerrero’s clinic, Guerrero continued to pay monthly child support payments to Ortiz

by depositing funds into her bank account. This occurred from August 2004 to April 2012.1

Guerrero further stated that sometimes Ortiz would call him and tell him that she needed a little

1 Temporary orders required Guerrero to begin paying Ortiz current child support on May 1, 2012.

-3- 04-14-00263-CV

bit more money and, when he could, he would give it to her. In her testimony, Ortiz acknowledged

that Guerrero had deposited funds into her bank account, but she insisted that these payments were

not for child support. According to Ortiz, the funds deposited into her bank account represented

money that was owed to her from the time she had worked in Guerrero’s clinic. Ortiz testified that,

after H.O. was born and while she was still working for Guerrero, she and Guerrero had agreed

that he would withhold a portion of her salary and set it aside so that he could buy an apartment

for her. Ortiz maintained that according to this agreement, Guerrero would use the funds he

withheld from her salary along with some of his own funds to buy her an apartment. In his

testimony, Guerrero denied that he ever had an agreement with Ortiz to withhold a portion of her

salary to buy an apartment for her. Guerrero further testified that the purpose of the funds he

deposited into Ortiz’s account was to provide support for H.O.

With respect to the resolution of factual issues, we may not substitute our judgment of that

of the trial court. Walker, 827 S.W.2d at 839-40. Even if we would have decided the issue

differently, we cannot disturb the trial court’s ruling unless it is shown to be arbitrary or

unreasonable. Id. Here, in light of the conflicting testimony about the purpose of the payments

made to Ortiz, we cannot say the trial court abused its discretion. The trial court could have

believed Guerrero’s testimony that the payments he made to Ortiz were for child support, and

disbelieved Ortiz’s testimony that the payments represented monies previously withheld from

Ortiz’s salary.

Furthermore, in deciding whether or not to order retroactive child support, one of the

factors a trial court may consider is whether the obligor provided actual support or other

necessaries before the filing of the action. See TEX. FAM. CODE ANN. § 154.131(b)(4). Even when

the amount of voluntary support provided by an obligor is limited, a trial court acts within its

discretion in denying retroactive support. Randolph, 2005 WL 2276873, at *2; Guthrie, 45 S.W.3d -4- 04-14-00263-CV

at 729; J.H., 961 S.W.2d at 552. In this case, there was evidence that Guerrero provided some

actual support before the suit was filed. A trial court does not abuse its discretion if there is some

evidence of substantive and probative character to support its decision. Butnaru, 84 S.W.3d at 211;

B.R., 327 S.W.3d at 211. We, therefore, cannot say that the trial court acted without any guiding

principles or rules. We conclude the trial court did not abuse its discretion in failing to order

retroactive child support. Ortiz’s first issue is overruled.

CURRENT CHILD SUPPORT

In her second issue, Ortiz argues the trial court abused its discretion when it refused to

admit evidence she offered in support of her request to set the current child support above the child

support guidelines based on the “proven needs” of the child. See TEX. FAM. CODE ANN. § 154.126

(West 2014).

Section 154.126 provides that if the obligor’s net resources exceed the amount provided by

Texas Family Code section 154.125(a), the trial court shall presumptively apply the percentage

guidelines to the portion of the obligor’s net resources that does not exceed that amount, and

without further reference to the percentage recommended by these guidelines, the trial court may

order additional amounts of child support as appropriate, depending on the income of the parties

and the proven needs of the child. Id.

In this case, the trial court set current child support above the amount specified under the

child support guidelines because Ortiz has possession of the child one hundred percent of the time

and Guerrero has no contact with the child. See TEX. FAM. CODE ANN. § 154.123(b)(4) (West

2014) (providing that the amount of possession and access to a child is a factor a court can consider

in determining whether application of the child support guidelines would be unjust or

inappropriate). Nevertheless, Ortiz argues that had she been allowed to present evidence

-5- 04-14-00263-CV

concerning H.O.’s proven needs, the trial court would have further increased the amount of current

child support.

On direct examination, Ortiz’s counsel attempted to elicit testimony from Ortiz concerning

H.O.’s proven needs. Guerrero’s counsel objected to this testimony on the ground that Ortiz failed

to respond to related discovery. The trial court sustained the objection. See TEX. R. CIV. P.

193.6(a),(b) (providing that a party who fails to timely respond to discovery may not introduce in

evidence the material or information at trial, absent a showing of good cause or a lack of unfair

surprise or prejudice). Ortiz did not make an offer of proof to establish the substance of the

excluded testimony.

We may not reach the issue of whether evidence was erroneously excluded unless the

complaint has first been preserved for review. Sink v. Sink, 364 S.W.3d 340, 346 (Tex. App.—

Dallas 2012, no pet.). “Error is not preserved with regard to the exclusion of evidence unless the

substance of the evidence was made known to the trial court by offer, or was apparent from the

context [in which] the questions were asked.” Akin v. Santa Clara Land Co., Ltd., 34 S.W.3d 334,

339 (Tex. App.—San Antonio 2000, pet. denied); see Sink, 364 S.W.3d at 347. “The failure to

make an offer of proof containing a summary of the excluded witness’s intended testimony waives

any complaint about the exclusion of the evidence on appeal.” Akin, 34 S.W.3d at 339; see Sink,

364 S.W.3d at 347. Here, the substance of Ortiz’s testimony on H.O.’s proven needs is not apparent

from the record. Because there was no offer of proof concerning the substance of the excluded

testimony, Ortiz has failed to preserve this issue for appeal. Ortiz’s second issue is overruled.

CONCLUSION

The trial court’s judgment is affirmed.

Karen Angelini, Justice

-6-