Stephanie M. Garza v. Xavier H. Garza--Appeal from 225th Judicial District Court of Bexar County

DISSENTING OPINION
No. 04-03-00888-CV
Stephanie M. GARZA,
Appellant
v.
Xavier H. GARZA
Appellee

From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2002-CI-01202
Honorable John J. Specia, Jr., Judge Presiding

Opinion by: Sarah B. Duncan, Justice

Dissenting opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 10, 2004

The majority holds that the trial court abused its discretion because the "undisputed evidence" establishes that Stephanie cannot pay the costs of appeal. Because I disagree with that conclusion, I respectfully dissent.

The burden of proof at a hearing on a contest to the affidavit of indigency rests on the appellant to sustain the allegations in the affidavit. Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996) (orig. proceeding); Tex. R. App. P. 20.1(g). The test for indigence is whether a preponderance of the evidence shows that the party would be unable to pay costs "if [s]he really wanted to and made a good faith effort to do so." Griffin Indus., Inc., 934 S.W.2d at 351 (quoting Allred v. Lowry, 597 S.W.2d 353, 355 (Tex. 1980)). When the trial court sustains a contest, the court of appeals must decide whether the trial court abused its discretion. White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.--San Antonio 2001, pet. denied). To show a clear abuse of discretion, the appellant must show that, under the circumstances of the case, the facts and law permit the trial court to make but one decision. Cronen v. Smith, 812 S.W.2d 69, 71 (Tex. App.--Houston [1st Dist.] 1991, orig. proceeding).

Stephanie is a bright, capable woman, who graduated from college cum laude. After she graduated from college, Stephanie worked as a certified music teacher and then advanced to choir director of her school. In addition to her teaching and choir director position, she taught voice lessons after school.

Stephanie is qualified to hold the position of a full-time certified teacher in Texas secondary schools; however, she testified she was unable to find such a position in the Boerne Independent School District. Instead, since October 2002, she has been employed as a teacher's assistant in the Boerne school district. Stephanie said she sought a full-time position with two other school districts in the Fall of 2002. She admitted she had made no further attempts to find a full-time position in another school district since the Fall of 2002.

As an employee of the Boerne school district, Stephanie works from 8:00 a.m. to 3:30 p.m. during the school year, and she is paid over a twelve month period although she has time off during the Christmas holiday break and from early June through mid-August for the Summer break. Stephanie testified that because the children's primary residence is with their father, she has more free time now than when she was married. She said that although she is ready, willing, and able to work at an additional job, she has been unable to find such work. However, she has applied for additional work only twice, in the Summer of 2003 for the Summer program at a Montessori School and in early Fall 2003 at a Chili's restaurant.

The record also establishes that Stephanie has assets, albeit few, and she has available credit. Stephanie was awarded $73,871 as her equity in the family homestead, although Xavier currently is depositing the monthly payments into the court's registry. Although she listed a debt of $33,000 to her father, of which $30,000 was paid to her attorneys, Stephanie agreed that she did not expect her father to pursue any legal action against her to collect the debt.

These facts do not permit only one decision. The trial court did not file findings of fact; therefore, we may infer omitted findings in support of the judgment. See Vickery v. Comm'n for Lawyer Discipline, 5 S.W.3d 241, 251-53 (Tex. App.--Houston [14th Dist.] 1999, pet. denied). Viewing the evidence in the light most favorable to the court's ruling and drawing all reasonable inferences in favor of the court's order on the contests, I believe the trial court impliedly found that Stephanie had not made a good faith effort to pay her costs. Because such an implied finding is supported by the record, I would hold the trial court did not abuse its discretion in sustaining the contests to Stephanie's affidavit of inability to pay costs.

Sandee Bryan Marion, Justice