Yevgenia Shockome v. Timothy Shockome

• Court: Court of Appeals of Texas
• Decided: May 2, 2012
• Docket: 04-11-00887-CV
• Status: Published

Opinion

MEMORANDUM OPINION No. 04-11-00887-CV

Yevgenia SHOCKOME, Appellant

v.

Timothy SHOCKOME, Appellee

From the 218th Judicial District Court, Atascosa County, Texas Trial Court No. 09-02-00030-CVK Honorable Fred Shannon, Judge Presiding

PER CURIAM

Sitting: Rebecca Simmons, Justice Steven C. Hilbig, Justice Marialyn Barnard, Justice

Delivered and Filed: May 2, 2012

AFFIRMED

Appellant Yevgenia Shockome filed a motion for this court to reconsider the trial court’s

order sustaining a contest to her affidavit of indigence in this appeal. We construe her motion as

an appeal of the trial court’s order. We affirm the trial court’s order sustaining the contest.

BACKGROUND

The trial court signed a child support order on October 21, 2011, and the appellant timely

filed a notice of appeal. However, the appellant did not file an affidavit of indigence with her 04-11-00887-CV

notice of appeal. See TEX. R. APP. P. 20.1(c)(1) (requiring an appellant to “file the affidavit of

indigence in the trial court with or before the notice of appeal”). Nevertheless, she filed an

affidavit of indigence with this court on December 21, 2011. We abated the appeal to the trial

court for it to determine her indigence status. See id. R. 20.1(h)(4), (i)(1); Higgins v. Randall

Cnty. Sheriff’s Office (Higgins I), 193 S.W.3d 898, 899–900 (Tex. 2006). Opposing counsel

timely filed a contest. The trial court held a telephonic hearing on the contest, and it later signed

an order sustaining the contest. The appellant filed a motion with this court to reconsider the

trial court’s order and asserted that the trial court failed to provide her with reasonable

accommodations for her disability.

ANALYSIS

A. Applicable Law

We may construe a motion to reconsider a trial court’s order sustaining a contest to an

affidavit of indigence as a notice of appeal; a separate notice is not required. See Basaldua v.

Hadden, 298 S.W.3d 238, 241 (Tex. App.—San Antonio 2009, no pet.) (per curiam). We review

a trial court’s order sustaining a contest to an affidavit of indigence for an abuse of discretion.

White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.—San Antonio 2001, pet. denied). The trial

court abuses its discretion if its “ruling is so arbitrary and unreasonable as to be clearly wrong.”

Id. (citing Arevalo v. Millan, 983 S.W.3d 803, 804 (Tex. App.—Houston [1st Dist.] 1998, no

pet.)). In the contest, the affiant bears the burden to prove her indigence by a preponderance of

the evidence. See TEX. R. APP. P. 20.1(g); Higgins v. Randall Cnty. Sheriff’s Office (Higgins II),

257 S.W.3d 684, 686 (Tex. 2008); Basaldua, 298 S.W.3d at 241. The trial court must decide if

the evidence shows the affiant is “unable to pay costs [even] ‘if [s]he really wanted to and made

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a good faith effort to do so.’” White, 40 S.W.3d at 576 (quoting In re Sosa, 980 S.W.2d 814, 815

(Tex. App.—San Antonio 1998, no pet.)); accord Higgins II, 257 S.W.3d at 686.

B. Evidence of Indigence

In this case, Yevgenia had the burden to show that she could not pay the court costs. See

Higgins II, 257 S.W.3d at 686; White, 40 S.W.3d at 576. She filed an affidavit that showed she

had monthly income of $6,871.26 and monthly expenses that exceeded her income. She listed

both mortgage and car payments, but she did not state what equity she had in either her home or

her car, and she did not state what other real or personal property, cash, bank accounts, or other

assets she owned. See TEX. R. APP. P. 20.1(b) (describing the information required in an

affidavit of indigence). Further, she did not describe her ability to get a loan for court costs. See

id. In the telephonic hearing on the contest to her affidavit, Yevgenia told the trial court she

would start unpaid medical leave the following week. The trial court repeatedly asked Yevgenia

if she had any other information she wanted the court to consider before it decided the question

of her indigence; she provided no additional information. Considering the evidence before the

trial court and Yevgenia’s burden to show that she could not pay court costs, we cannot say that

the trial court’s decision was “so arbitrary and unreasonable as to be clearly wrong.” See White,

40 S.W.3d at 576; see also Basaldua, 298 S.W.3d at 241.

CONCLUSION

We affirm the trial court’s order sustaining the contest to appellant Yevgenia Shockome’s

affidavit of indigence.

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