In the Interest of E.L.C., A Minor Child--Appeal from 45th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00698-CV

IN THE INTEREST OF E.L.C., a Minor Child

From the 45th Judicial District Court, Bexar County, Texas

Trial Court No. 2003-EM5-04335

Honorable Barbara Hanson Nellermoe, Judge Presiding //

Opinion by: Rebecca Simmons, Justice

Sitting: Catherine Stone, Justice

Sarah B. Duncan, Justice

Rebecca Simmons, Justice

Delivered and Filed: June 1, 2005

AFFIRMED

Elijah Mackey appeals the trial court s paternity judgment that orders him to pay child support. We affirm the judgment of the trial court.

In his sole issue, Mackey argues the trial court abused its discretion in ordering him to pay child support under the minimum wage presumption of Section 154.068 of the Texas Family Code because he is incarcerated. Specifically, Mackey complains that his earnings while incarcerated are insufficient to meet the trial court s order to pay child support of $140.00 per month. Mackey asks this court to seize or withhold these payments until he is financially able to make them.

In July 2003, the Texas Attorney General brought a paternity suit against Mackey while he was incarcerated. Mackey answered in a document entitled, Statement To This Honorable Court, in which he neither conceded nor denied paternity, but merely stated that his only income is his monthly payment at B.O.P. Following court-ordered paternity tests and a hearing on support, the trial court signed an order adjudicating Mackey to be the child s father and ordering him to pay current child support of $140.00 per month based on the Texas Family Code s presumption of minimum wage earnings. According to the order, although duly notified, Mackey did not appear at the hearing on child support. In addition, he made no request for a bench warrant to appear at trial nor presented any evidence of his income or financial resources. Also, Mackey neither filed a motion for new trial nor requested any findings of fact and conclusions of law. On August 17, 2004, Mackey filed a notice of appeal from the paternity judgment containing the child support order.

A determination of child support will not be disturbed unless there is a clear abuse of discretion. In the Interest of M.M., 980 S.W.2d 699, 700 (Tex. App. San Antonio 1998, no pet.). For legal questions, a trial court abuses its discretion only if it clearly fails to analyze or apply the law correctly. Id. For factual questions, the trial court abuses its discretion only when its decision is arbitrary and unreasonable. Id. The Texas Family Code states, [i]n the absence of the wage and salary income of a party, the court shall presume that the party has wages or salary equal to the federal minimum wage for a 40-hour week. Tex. Fam. Code Ann. 154.068 (Vernon 2002). Incarceration alone cannot rebut the statutory presumption. In the Interest of M.M., 980 S.W.2d at 700. Therefore, in the absence of proof from an incarcerated person that he or she does not have such resources the minimum wage presumption is not rebutted, and it would not be in the best interest of his children to excuse that person from support obligations.

Mackey did not attend the trial and presented no proof regarding his past or present financial resources to the trial court. Moreover, although he attached a document to his appellant s brief in an attempt to show the amount of his earnings while in prison, the record shows this document was not presented to the trial court and therefore it may not be considered by this court. See Sabine Offshore Serv., Inc. v. City of Port Arthur, 595 S.W.2d 840, 841 (Tex. 1979). In the absence of any evidence regarding Mackey s financial resources, we find the trial court did not abuse its discretion in ordering Mackey to pay child support according to the Family Code s minimum wage presumption. The judgment of the trial court is affirmed.

Rebecca Simmons, Justice