Jessica Forde v. Edwin Geovani Martinez

• Court: Court of Appeals of Texas
• Decided: April 13, 2006
• Docket: 14-04-00714-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed April 13, 2006

Affirmed and Memorandum Opinion filed April 13, 2006.

In The

Fourteenth Court of Appeals

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NO. 14-04-00714-CV

JESSICA FORDE, Appellant

V.

EDWIN GEOVANI MARTINEZ, Appellee

On Appeal from 300th District Court

Brazoria County, Texas

Trial Court Cause No. 18996*RH02

M E M O R A N D U M   O P I N I O N

Jessica Forde appeals an order denying her recovery of retroactive child support (the Asupport@) from the child=s father, Edwin Geovani Martinez, on the grounds that: (1) the trial court abused its discretion in denying the support; (2) the child=s constitutional right to equal protection was violated by this denial; (3) the statutory scheme to determine retroactive support is unconstitutional;  and (4)  the guardian ad litem provided ineffective assistance.  We affirm.

Forde=s first and second issues contend that the trial court abused its discretion by denying the support because it failed to follow the guidelines listed in the Family Code and instead based its ruling on: (1) a theory of Aquid pro quo,@ meaning that because it awarded no back visitation to Martinez, it would award no back support to Forde; (2) the lack of pleadings requesting the support, even though the issue was tried by consent; and (3) findings of fact that are unsupported by any evidence.  Additionally, Forde argues that the denial of the support was arbitrary and unreasonable in the face of Martinez=s admission that he had not provided child support for his child while they were separated and his statement that he had no reason to disagree with Forde=s calculations as to the total amount of back child support  owed.

A trial court=s denial of retroactive child support is reviewed for abuse of discretion.  In re Guthrie, 45 S.W.3d 719, 727 (Tex. App.CDallas 2001, pet. denied).  A trial court abuses its discretion if, among other things, it fails to adhere to guiding rules and principles.  See Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).  A trial court does not abuse its discretion if some evidence reasonably supports its decision.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

A parent who fails to discharge the duty of support is liable to a person who provides necessaries to those to whom support is owed.  Tex. Fam. Code Ann. ' 151.001(c) (Vernon Supp. 2005).  A court may order a parent to pay retroactive child support if the parent: (1) has not previously been ordered to pay support for the child; and (2) was not a party to a suit in which support was ordered.  Id. ' 154.009(a) (Vernon 2002).  In ordering retroactive child support, the court shall apply the guidelines provided by chapter 154 of the Family Code.  Id. ' 154.009(b).  Chapter 154 provides the following guidelines for awarding retroactive child support:

(a) The child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered.

(b) In ordering retroactive child support, the court shall consider the net resources of the obligor during the relevant time period and whether:

(1) the mother of the child had made any previous attempts to notify the obligor of his paternity or probable paternity;

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

(3) the order of retroactive child support will impose an undue financial hardship on the obligor or the obligor=s family; and

(4) the obligor has provided actual support or other necessaries before the filing of the action.

Id. ' 154.131 (Vernon 2002).^[1]

In this case, the trial court entered the following finding of fact and conclusion of law, respectively, regarding the support:

Findings of Fact - Child Support

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17.  No retroactive child support should be ordered because Petitioner and Petitioner=s family have provided actual support or other necessities for the child before the filing of this suit and an order for retroactive child support would impose an undue financial hardship on the Petitioner.

Conclusions of Law

7.  No retroactive child support shall be ordered since there are no pleadings on file from Respondent seeking such relief.

Even assuming the issue of retroactive child support was tried by consent, as Forde contends, the finding of fact reflects that the trial court based its decision on the factors set forth in the Family Code for awarding retroactive support, particularly whether an order of retroactive support would impose an undue financial hardship on Martinez or his family; and whether Martinez provided any actual support or other necessaries before the filing of the suit.  See id. '' 154.009(b), 154.131(b)(3), (4).  The evidence also showed:  (1) Martinez=s gross monthly income and approximate gross income during the period at issue; (2) that Martinez currently provides support to two other children in addition to the support he provides to his child with Forde; (3) that Martinez=s mother had provided daycare several times a week until the child was approximately two years old; and (4) that Forde had received from $500 to $1000 from Martinez for the child=s care during the time after she and Martinez separated until the Rule 11 agreement was signed providing for temporary support on August 29, 2002.  Because the trial court thus acted in reference to guiding rules and principles in denying the support and some evidence reasonably supports its decision,  Forde=s first and second issues fail to demonstrate that the trial court abused its discretion and are overruled.

Forde=s third issue argues that denial of the support deprived the child of equal protection under the law and that the statutory scheme to determine retroactive support is unconstitutional.^[2]  However, because Forde did not present either of these complaints to the trial court in any manner, this issue presents nothing for our review^[3] and is overruled.

Forde=s fourth issue contends that the child did not receive effective assistance of the guardian ad litem.  However, Forde does not cite, and we have not found, any authority even addressing effective assistance of a guardian ad litem, let alone establishing any remedies for a failure to provide it or indicating how it might bear on a claim for retroactive child support.^[4]  Therefore, Forde=s fourth issue affords no basis for relief and is overruled, and the judgment of the trial court is affirmed.

/s/        Richard H. Edelman

Justice

Judgment rendered and Memorandum Opinion filed April 13, 2006.

Panel consists of Justices Edelman, Guzman, and Murphy.^[5]

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^[1]           Forde has cited no case in which a denial of retroactive child support has been found an abuse of discretion.

^[2]           In support of this contention, Forde cites Gomez v. Perez, 409 U.S. 535 (1973). However, the constitutional problem addressed in Gomez was the denial of a child=s essential right to support from his or her natural father based exclusively on the child=s illegitimate status.  Id. at 539.  That constitutional problem is not present in this case because, as discussed above, the denial of the support was based on the factors listed in chapter 154 of the Family Code, not on the child=s illegitimate status. These factors are applicable in determining whether to award retroactive child support regardless of the marital status of the parents.  See Knight v. Knight, 131 S.W.3d 535 (Tex. App.CEl Paso 2004, no pet.); Nordstrom v. Nordstrom, 965 S.W.2d 575 (Tex. App.CHouston [1st Dist.] 1997, pet. denied).  Therefore, Gomez does not support an equal protection challenge in this case.

^[3]           See Tex. R. App. P. 33.1(a).

^[4]           In addition, Forde presented this issue to the trial court for the first time in her motion for new trial.

^[5]           Senior Chief Justice Paul C. Murphy sitting by assignment.