Motion Denied; Order filed May 14, 2013




                                       In The

                     Fourteenth Court of Appeals
                                   ____________

                               NO. 14-12-00824-CV
                                   ____________

                 MARTHA RANGEL GONZALEZ, Appellant

                                         V.

                   VIRGILIO RAMON-SAVALZA, Appellee


                    On Appeal from the 246th District Court
                            Harris County, Texas
                      Trial Court Cause No. 2011-23305

                                      ORDER

      This is an appeal from a judgment signed August 12, 2012. Appellant filed
notice of appeal on August 30, 2012. On December 10, 2012, appellant filed an
affidavit of indigence in this court. See Tex. R. App. P. 20.1(d)(2). On January
22, 2013, the Harris County District Clerk filed a contest to appellant’s affidavit of
inability to pay costs. The contest was set for submission before the trial court on
February 6, 2013. On February 13, 2013, the trial court found appellant is not
indigent sustaining the district clerk’s contest. The trial court made the following
findings:

         One, no Notice of Appeal and no request for reporters record were
         timely filed and served to the court reporters. Apparently, four court
         reporters have worked on this case.
         Two, the value of the assets awarded to Appellant in the Decree of
         Divorce constitutes an unequal division of the community property in
         her favor and includes real estate of a value of $80,000 with no
         mortgage, and a 2007 Ford F150 motor vehicle with the value in the
         record of $60,000. The real estate, under the testimony, had a value
         of $80,000 without a mortgage.
         Three, no evidence was produced by Appellant as to any reason for
         her being without employment.
         Four, no evidence was produced by Appellant to reflect any efforts to
         borrow funds to pay the costs of this appeal.
         Five, Appellee’s Response to Motion for Indigent Status filed with the
         Court December 30th, 2012 under the heading, “Procedural History,”
         correctly and accurately sets forth the facts and is adopted by the
         Court as additional Findings of Facts.
         Six, the Trial Court adopts the Inadequacy of Affidavit contentions of
         the Appellee’s Response to the Motion for Indigent Status, and finds
         the Affidavit of Indigency is insufficient as a matter of law.
         Seven, Trial Court adopts and approves the Appellee’s Response to
         Motion for Indigent Status in its entirety as a correct statement of the
         Findings and Conclusions by the Trial Court.


         On February 28, 2013, after receiving the trial court’s findings, this court
denied appellant’s motion to proceed without payment of costs. On April 26,
2013, appellant filed a motion for reconsideration with this court requesting that
we reconsider our order denying appellant’s motion to proceed without payment of
costs.
      When a contest is sustained and a review of the ruling is sought, the question
is whether an examination of the record as a whole establishes that the trial court
abused its discretion. See Jones v. Duggan, 943 S.W.2d 90, 93 (Tex. App.—
Houston [1st Dist.] 1997, orig. proceeding). In ruling on the merits of the evidence
at the trial court level, the test for determining entitlement to proceed without
payment of costs is whether the preponderance of the evidence shows that the
appellant would be unable to pay the costs of appeal, if she really wanted to and
made a good faith effort to do so. See Griffin Indus. v. Thirteenth Court of
Appeals, 934 S.W.2d 349, 351 (Tex. 1996). 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. See Cronen v. Smith, 812 S.W.2d
69, 70 (Tex. App.BHouston [1st Dist.] 1991, orig. proceeding).

      The burden of proof at the hearing on the contest to the affidavit is on the
individual alleging indigence. See Tex. R. App. P. 20.1(g). At the hearing on the
District Clerk’s contest, the trial court took judicial notice of the decree of divorce,
which is the judgment being appealed. In the property division, appellant received
a house, all household furniture, furnishings, fixtures, goods, art objects,
collectibles, appliances, and equipment in her possession, cash in her possession,
and a 2007 Ford F-150 motor vehicle. The debts allotted to appellant included all
debts solely incurred by her from July 22, 2009 to the present, all encumbrances,
ad valorem taxes, liens, assessments, or other charges on the real property, and any
amounts owed to the Internal Revenue Service based on separate tax returns. Each
party was assessed his or her own attorney’s fees.

      In her affidavit of indigence filed in this court, appellant stated that her only
income is rental income of $1,000.00 per month. Her expenses include $300.00
per month rent and $200.00 per month for food, $60.00 for laundry, $45.00 for
cellular phone, and $100.00 for gasoline. She owes $18,000.00 to St. Joseph’s
Hospital for an emergency room visit and medical testing. She also stated that she
owes her attorney for his work on the divorce.

      Appellant received real and personal property as a result of the divorce
decree. She failed to show the trial court abused its discretion in sustaining the
contest to her affidavit of indigence. See Few v. Few, 271 S.W.3d 341, 345 (Tex.
App.—El Paso 2008, pet. denied) (appellant who received assets in the divorce did
not show abuse of discretion in trial court’s sustaining contest to affidavit of
indigence). Accordingly, we find the trial court did not abuse its discretion in
denying appellant’s request to proceed without the payment of costs.

      Therefore, appellant’s motion for reconsideration is denied and appellant is
directed to pay or make arrangements to pay for the record in this appeal. See Tex.
R. App. P. 35.3(a)(2). Unless appellant provides this court with proof of payment
for the record within fifteen days of the date of this order, we will dismiss the
appeal for want of prosecution. See Tex. R. App. P. 37.3(b).

                                      PER CURIAM
