Rebecca Faye McCoy-Danklefs v. Robert Lee Danklefs--Appeal from 25th Judicial District Court of Guadalupe County

Appellant

v.

Robert Lee DANKLEFS,

Appellee

From the 25th Judicial District Court, Guadalupe County, Texas

Trial Court No. 01-0425-CV

Honorable Gary Steel, Judge Presiding (1)

PER CURIAM

Sitting: Phil Hardberger, Chief Justice

Alma L. L pez, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 21, 2002

AFFIRMING ORDER SUSTAINING CONTEST TO AFFIDAVIT OF INDIGENCE

This is an appeal from the trial court's order sustaining a contest to Rebecca Faye McCoy-Danklefs' affidavit of indigence. McCoy-Danklefs asserts she was denied due process because she did not receive notice of the hearing on the contest to her affidavit of indigence and that the trial court abused its discretion by denying her request for a free record on appeal. Because we find that McCoy-Danklefs waived her objection to notice and the trial court did not abuse its discretion when it denied the request for a free record, we affirm.

NOTICE

On November 12, 2001, the trial court held a hearing on the court reporter's contest to McCoy-Danklefs' affidavit of indigence, but McCoy-Danklefs did not attend the hearing. She contends she did not receive notice of the hearing; however, she raises this complaint for the first time on appeal. Because McCoy-Danklefs did not bring her lack of notice or due process complaint to the trial court's attention, she has preserved nothing for this court's review. See Walker v. Gonzales County Sheriff's Dept., 35 S.W.3d 157, 160 (Tex. App.--Corpus Christi 2000, pet. denied); State Bar of Texas v. Leighton, 956 S.W.2d 667, 671 ( Tex. App.--San Antonio 1997), pet. denied, 964 S.W.2d 944 (Tex. 1998); see Tex. R. App. P. 33.1(a).

ABILITY TO PAY COSTS ON APPEAL

McCoy-Danklefs also asserts the trial court abused its discretion because it denied her request for a free record on appeal. A party may appeal as an indigent by filing an affidavit of indigence pursuant to Rule of Appellate Procedure 20.1. See Tex. R. App. P. 20.1. If the court reporter or another party files a contest, the party who filed the affidavit must prove her indigence. See White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.--San Antonio 2001, pet. denied). A party claiming indigence must prove by a preponderance of the evidence that she would be unable to pay costs if she "really wanted to and made a good faith effort to do so." Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980); White, 40 S.W.3d at 576. We review a trial court's determination of indigence status under an abuse of discretion standard. White, 40 S.W.3d at 576.

McCoy-Danklefs did not appear at the contest hearing; therefore, the only evidence before the trial court was her affidavit of indigence in which she stated she was unable to pay any costs on appeal, and that her monthly expenses exceeded her monthly income. However, her affidavit also shows that she owns a house, real property, and a 1992 Plymouth Sundance. The worth of these items is not indicated in the affidavit. Failing to use assets that are available to provide funding for an appeal shows the opposite of good faith. White, 40 S.W.3d 576. Because the record shows that McCoy-Danklefs owns assets that could be used to provide funding for a copy of the record, the trial court did not abuse its discretion in sustaining the contest to her affidavit of indigence.

CONCLUSION

We affirm the trial court's order sustaining the contest to McCoy-Danklefs' affidavit of inability to pay court costs. McCoy-Danklefs must file, within fifteen days of the date of this opinion, evidence that she has made appropriate arrangements for payment of the clerk's record on appeal and the filing fees. Failure to make such a showing shall result in the dismissal of this appeal for failure to prosecute.

PER CURIAM

DO NOT PUBLISH

1. The Honorable B. B. Schraub presided over the hearing on the contest to Rebecca Faye McCoy-Danklefs' affidavit of indigence.