Cynthia Almeida v. Antonio Eduardo Estrada--Appeal from County Court at Law No 2 of Webb County

MEMORANDUM OPINION

No. 04-05-00255-CV

Cynthia ALMEIDA,

Appellant

v.

Antonio Eduardo ESTRADA,

Appellee

From the County Court at Law No. 2, Webb County, Texas

Trial Court No. 2005-CVG-000150-C3

Honorable Jesus Garza, Judge Presiding

Interlocutory Opinion on Appeal of Order

Sustaining Contest to Affidavit of Inability to Pay Costs

and Awarding Attorney s Fees

PER CURIAM

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: January 18, 2006

ORDER SUSTAINING CONTEST TO AFFIDAVIT OF INDIGENCE AND AWARDING FEES AFFIRMED IN PART AND REVERSED IN PART

Cynthia Almeida appeals the trial court s order sustaining a contest to her affidavit of inability to pay costs and awarding appellee, Antonio Eduardo Estrada, $1,400 in attorney s fees incurred in connection with the contest. We affirm the order sustaining the contest and reverse the award of attorney s fees.

Background

After the trial court dismissed Almeida s petition for divorce, she timely filed a notice of appeal and an affidavit of inability to pay costs. In response to a notice from this court that the reporter s record had not been timely filed, the court reporter, Roxanne Soto, filed a notice of late record, stating she did not receive a copy of Almeida s affidavit and was thus precluded from filing a timely contest. See Tex. R. App. P. 20.1(e). We abated the appeal and remanded the case to the trial court to determine whether the clerk of the trial court promptly sent a copy of Almeida s affidavit of indigence to Soto as required by Rule 20.1(d)(1) and whether Soto otherwise had actual knowledge of the affidavit before the deadline for filing a timely contest. See In re J.N.L., 158 S.W.3d 527, 530 (Tex. App. San Antonio 2004, order). We further ordered that, if the trial court found that the clerk did not promptly send a copy of the affidavit to Soto and Soto did not otherwise acquire actual knowledge of the filing in time to file a contest, Soto was permitted to file an out-of-time contest to Almeida s affidavit. See id.

At a hearing on June 15, after Almeida stipulated that Soto did not receive timely notice of the affidavit of inability to pay costs, the trial court so found. On June 17, Soto filed a contest to the affidavit of inability to pay costs pursuant to our order authorizing the out-of-time filing. // After a June 23 hearing, the trial court signed an order sustaining the contest, ordering Almeida to pay the costs of the appeal, and ordering Almeida to pay Estrada s attorney $1,400 in attorney s fees. Almeida appealed the trial court s June 23 order.

Ability to Pay Costs

The party filing an affidavit of inability to pay costs bears the burden of proving the allegations in the affidavit. Garza v. Garza, 155 S.W.3d 471, 475 (Tex. App. San Antonio 2004, order); Tex. R. App. P. 20.1(g). She must prove by a preponderance of the evidence that she would be unable to pay costs if [s]he really wanted to and made a good faith effort to do so. Garza, 155 S.W.3d at 475 (quoting Griffin Indus., Inc. v. Thirteenth Court of Appeals, 934 S.W.2d 349, 351 (Tex. 1996)). Testimony that a party is on public assistance establishes a prima facie case of indigence. Griffin, 934 S.W.2d at 351. However, this prima facie showing may be rebutted by evidence that she is not dependent on the assistance or that other funds are available. Id. at 352. We review the trial court s ruling on a contest to an affidavit of inability to pay costs for abuse of discretion. Garza, 155 S.W.3d at 475. A trial court abuses its discretion [w]ith respect to resolution of factual issues, if the record establishes the court could reasonably have reached only one decision, and it fails to do so. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

At the hearing, Almeida testified that she has not worked since 2000 and is currently taking courses to become a medical assistant. Almeida s affidavit of inability to pay costs // states she ha[s] no income from any source and does not mention government benefits; however, Almeida testified she receives financial aid for school, approximately $640.00 a month in child support payments, and $458.00 a month in food stamps. In her affidavit, Almeida states she has one dependent a son aged 13; however, she testified she also has two children, aged one and six, with A. Valadez, and a fourth child living with her as well. She further testified that she and her children live with Valadez in a house he is purchasing and that Valadez pays the mortgage and all the bills and living expenses of the household, except for the children s clothes. Almeida has no monthly expenses. She testified that she pays for the children s clothes and other stuff with the child support she receives but offered no evidence of how much she spends on these items. She further testified that she does not have any cash, checking or savings accounts, real property or other assets. She does not own a car but borrows one from Valadez.

Almeida s affidavit states she has no debts; however, Almeida testified that she borrowed half of what she owes her attorney for the trial proceedings from Valadez; and she still owes her attorney half the fees. She testified her attorney told her the costs of an appeal would be between $500 and $1,000; she has tried unsuccessfully to borrow the money from Valadez and from her sister; and she has not applied for a bank loan because her credit is bad. Almeida testified she is being represented pro bono in this appeal; but the record is silent as to whether Almeida s attorney has agreed to pay or advance the costs of appeal. See Tex. R. App. P. 20.1(b)(11).

Here, any presumption that Almeida is dependent on government assistance arising from her receipt of food stamps is rebutted by her testimony that Valadez pays for all the food for the household. The trial judge apparently chose to disbelieve Almeida s testimony that she is unable to obtain the $500 to $1,000 needed to pay for the record. In light of the numerous inconsistencies between Almeida s sworn affidavit and her testimony at the hearing, the trial court could reasonably have concluded that Almeida is not credible and that she would be able to pay the costs of appeal if she really wanted to and made a good faith effort to do so. Accordingly, the trial court did not abuse its discretion in sustaining Soto s contest to Almeida s affidavit of inability to pay costs.

Attorney s Fees

Almeida next argues the trial court had no authority to order her to pay Estrada s attorney his fees for preparing for and attending the two hearings ordered by this court. We agree. Both hearings occurred after the trial court lost plenary power over the case; accordingly, the trial court s authority to act derived solely from this court s limited remand. The first hearing required by our order was for the trial court to determine whether the trial court clerk performed the legal duty to promptly send a copy of Almeida s affidavit to the court reporter; the second hearing required by our order was on the court reporter s out-of-time contest to Almeida s affidavit. Although Estrada also filed a contest, including a motion for attorney s fees, his contest was untimely; and the trial court had no authority under our limited remand to hear it. Estrada has not cited, and we have not found, any authority for the imposition of an award of attorney s fees under these circumstances. Accordingly, we hold the trial court abused its discretion in awarding the fees.

Conclusion

We therefore affirm the trial court s order sustaining the court reporter s contest to Almeida s affidavit of indigence and reverse the order awarding attorneys s fees.

PER CURIAM