      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-10-00275-CV



                                     Jorge Monroy , Appellant

                                                   v.

                                     Perla X. Monroy, Appellee


    FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT
    NO. D-1-FM-09-004901, HONORABLE SUZANNE COVINGTON, JUDGE PRESIDING



                              MEMORANDUM OPINION


                Jorge Monroy appeals the district court’s judgment in this divorce and suit affecting

the parent-child relationship. He contends that the court’s division of the marital estate was not

just and right and that the court erred by ordering him to pay child support, both prospective and

retroactive, while he was incarcerated and not receiving income. We will affirm the judgment.


                                          BACKGROUND

                At the trial, only Perla X. Monroy and her attorney testified. Jorge1 represented

himself and did not testify, call or cross-examine witnesses, or present argument. The following

summary is drawn from the limited facts in Perla’s testimony. She and Jorge were married in

September 1999. Jorge built fences and earned an estimated $3,000 per month when they were




       1
           Because the parties shared a last name at trial, we will use their first names for clarity.
together. She gave birth to a child in both 2002 and 2007, and the younger child had surgery at

six months of age that cost $8,000. The couple separated on or about April 1, 2008. During

the separation, Jorge followed Perla around and showed up unannounced. On one occasion, he took

the memory card from her camera and got into a shoving match with her while she held their

younger daughter. In early September 2009, the Monroys sold some real estate, with each spouse

getting $37,000.

               Jorge’s behavior led Perla to seek protection from the courts. She filed a petition for

divorce on September 11, 2009, accompanied by an affidavit detailing a series of incidents with

Jorge that occurred in August 2009. The trial court granted a temporary restraining order designed

to keep Jorge from coming within 200 yards of her house.

               Perla testified that on the evening of September 11, 2009, Jorge broke into her

house and attacked her and her boyfriend with a hammer. He hit the boyfriend in the face, took some

pictures, then hit her on the back of the head during the ensuing struggle. Her head wound required

seven staples, and she missed a week of school and work.

               Perla obtained a temporary ex parte protective order based on Jorge’s commission

of family violence. Jorge was later arrested and jailed. He asserts that he has posted approximately

$570,000 in various bonds. The temporary protective order was extended on October 15, 2009. The

divorce was granted on November 5, 2009. The court signed a protective order on January 27, 2010,

and signed the divorce decree, specifying that the marriage was dissolved on the ground of cruelty,

on January 28, 2010. The court awarded $7,500 in attorney’s fees payable by Jorge directly to

Perla’s attorney.



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                                           DISCUSSION

               On appeal, Jorge contends that the trial court erred in two ways. He contends that the

division of the marital estate was not just and right. He also contends that the trial court erred in

ordering him to pay $618 in monthly child support and $10,506 in retroactive child support because

he was in jail and not earning income. He argues that the award of attorney’s fees was not supported

by the pleadings or evidence.


The division of property

               We review a division of the marital estate for an abuse of discretion. Murff v. Murff,

615 S.W.2d 696, 698 (Tex. 1981). A trial court is charged with dividing the estate of the parties in

a just and right manner, considering the rights of both parties. Tex. Fam. Code Ann. § 7.001

(Tex. 2006). The court need not divide community property equally. Murff, 615 S.W.2d at 699.

The trial court may consider many factors, including the parties’ earning capacities, education,

business opportunities, physical condition, financial condition, age, size of separate estates, nature

of the property, and the benefits that the spouse who did not cause the breakup of the marriage would

have enjoyed had the marriage continued. Id.

               In granting the divorce, the court for the most part solemnized the division of property

the Monroys had effectuated during their separation. The court awarded each party the furniture,

furnishings, personal items, and sums of cash in his or her possession or subject to his or her

respective control. The court also awarded each party his or her individual retirement savings, as

well as the debts he or she incurred individually after the date of separation. In addition, the court

ordered Jorge to reimburse Perla $4,000 for his share of their daughter’s medical expenses. The

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court also awarded Perla the automobile in her possession purchased with the proceeds from an

insurance payout from a collision that damaged a 2000 Toyota Tundra. The court further awarded

Perla a 2007 Chevrolet Silverado pickup then in the possession of Jorge or his family, as well as the

remaining debt on that vehicle.

               Jorge complains about procedures used in the trial court. He complains that the trial

happened in an accelerated fashion while he was in jail and that no discovery occurred. He asserts

that Perla requested a just and right division, not a disproportionate one. He contends that she did

not seek attorney’s fees nor request an award specifically in favor of her attorney. These contentions

do not require that we alter the judgment. The trial was accelerated because Jorge’s attack on Perla

permitted the case to proceed without the typical 60-day waiting period. See Tex. Fam. Code Ann.

§ 6.702 (West Supp. 2010). The absence of discovery is not, without more, reversible error.

Discovery is permitted, but not required by the rules. Jorge does not allege, much less prove, that

the trial court improperly denied any proper discovery request or, for that matter, that he made a

discovery request. The division of property is not reversible simply because it may be unequal. See

Murff, 615 S.W.2d at 698-99. Finally, although Perla did not specifically plead for attorney’s fees

in her petition for divorce, she did in her application for protective order. In the application, she

specifically requested that a judgment for attorney’s fees be rendered in favor of her attorney.

               Jorge complains specifically about three items in the property division: (1) the award

to Perla of the Silverado pickup, especially without evidence of its value or the amount of the

remaining debt; (2) the award to her of an unspecified vehicle based on an insurance payout related

to a damaged vehicle not mentioned at trial; and (3) the order that Jorge reimburse Perla for $4,000



                                                  4
of their child’s medical bill, the existence of which was not supported by documentation. For each

item, to varying degrees, Jorge complains that there is no evidence of value.

               The lack of evidence of value of property in the trial court record does not require

reversal in a contested case. Each party in a divorce proceeding has a burden to present sufficient

evidence of the value of the community estate to enable the trial court to make a just and right

division. Id. at 509; Finch v. Finch, 825 S.W.2d 218, 221 (Tex. App.—Houston [1st Dist.] 1992,

no writ). An appellant who does not provide property values to the trial court cannot complain

on appeal of the trial court’s lack of complete information. Todd v. Todd, 173 S.W.3d 126, 129

(Tex. App.—Fort Worth 2005, pet. denied); Tschirhart v. Tschirhart, 876 S.W.2d 507, 509

(Tex. App.—Austin 1994, no pet.). A party complaining of a property division “must be able to

show from the evidence in the record that the division is so unjust and unfair as to constitute an

abuse of discretion.” Finch, 825 S.W.2d at 221; see also Magill v. Magill, 816 S.W.2d 530, 534

(Tex. App.—Houston [1st Dist.] 1991, writ denied) (“Without recorded property values and factual

findings, we presume that the trial court properly considered the entire circumstances of the parties

and correctly exercised its discretion in dividing their property.”).

               First we note that, contrary to Jorge’s assertion that he “got nothing in terms of

property,” the trial court awarded him all household furniture, furnishings, fixtures, goods,

art objects, collectibles, appliances, equipment, clothing, jewelry, personal effects, and cash in his

possession or subject to his sole control, as well as monetary deposits in his name and retirement

benefits accrued due to his employment. We do not know the value of these assets, nor do we know

the value of similar awards to Perla, because neither party offered evidence of their value. This is



                                                  5
a barrier to Jorge’s quest to prove that the division of property was unequal, much less whether it

was unjust and wrong.

               The only community assets specifically named were awarded to Perla—the

2007 Chevrolet Silverado and the vehicle bought with proceeds from the insurance payout from

a collision that damaged her 2000 Toyota Tundra.           Other than Perla’s testimony that the

monthly payments on the loan for the 2007 Chevy truck were $982, there is no evidence about the

value of either vehicle. Although Jorge complained in his motion for new trial about the award of

the Chevy to Perla for which she had “not paid a penny,” he did not present any evidence regarding

any equity he had accrued by paying on the note. There was no mention at trial of the existence of

the 2000 Toyota Tundra, an insurance payout for a collision involving it, or a replacement vehicle.

These appeared for the first time in the divorce decree. The disposition of the Toyota in the decree,

however, distinguishes this case from those in which a party withholds information about an asset

and keeps it without it being distributed in the decree. Jorge’s mention of the Toyota in his

motion for new trial demonstrate both his awareness and his notification of the trial court that it

had distributed an asset that Perla failed to disclose during trial.2 Jorge nevertheless presented no

evidence of the Toyota’s value. The trial court, thus informed of the previously unmentioned asset’s

distribution, declined to alter the distribution of the community estate. While the unexplained debut

of an asset in the judgment is less than ideal, we have no evidence regarding its value or the value




       2
       We note that Jorge does not assert that he did not know that Perla owned a vehicle that was
community property, only that she did not disclose it to the court during trial.

                                                 6
of other property, and no real basis on which to assess its impact on the justness and rightness of the

division of the community estate.

               With regard to community liabilities, the court awarded the remaining debt on the

Chevy Silverado to Perla and ordered Jorge to reimburse Perla for half of their child’s $8,000

medical bill. Otherwise, the parties were awarded debts they accrued following their separation.

Although there is no evidence of the amount owed on the Chevy (other than Perla’s testimony that

payments are $982 per month), there is evidence of the value of the medical bill—Perla’s testimony.

Jorge’s choice not to cross-examine her or present his own evidence on the issue leaves her

testimony undisputed and controlling on the amount owed and paid.3

               The absence of evidence of values of community assets and debts distributed renders

an assessment of that distribution speculative and essentially meaningless. Jorge complains that

Perla received two vehicles (offset somewhat by the remaining loan balance on one) and he received

none, pointing to this fact as evidence of an unequal division of assets expressly awarded. The

record provides no way of knowing, however, if that automobile inequality is offset by the award of

other unspecified assets in their respective possession and/or the award of the remaining automobile-

related and personal debt. We conclude that Jorge has not demonstrated that the record presented

in this appeal shows that the trial court abused its discretion when dividing the community estate.4



       3
          Although the trial court ordered Jorge to reimburse Perla $4,000 without also expressly
assigning the $8,000 debt itself, Jorge does not complain of the court’s failure to specifically assign
the debt owed to the hospital.
       4
           We reach this conclusion irrespective of the propriety of the finding of cruelty by Jorge
toward Perla, thereby rendering moot Jorge’s complaint that, because Perla did not plead cruelty, the
trial court erred by finding it.

                                                  7
Child support

                Jorge contends that the trial court erred by ordering him to pay child support at

$618 per month and retroactive child support of $10,506 because he was in jail and not actually

receiving income at the time of the award. The court ordered him to pay the accrued support at

$1,751 per month. Generally, we review the trial court’s award of child support for abuse of

discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). A trial court abuses its discretion

when it acts without reference to any guiding rules or principles, or when it fails to analyze or apply

the law correctly. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992); Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). In child support decisions, the paramount

guiding principle of the trial court should always be the best interest of the child. Iliff v. Iliff,

339 S.W.3d 74, 81 (Tex. 2011) (citing Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n.3

(Tex. 1993)).

                The legislature has established guidelines for the award of child support,

and application of these guidelines is rebuttably presumed to be in the child’s best interest. See

Tex. Fam. Code Ann. § 154.122 (West 2008). Under the guidelines, trial courts determine the

appropriate level of support based on net resources available, which include the following:


       (1) 100 percent of all wage and salary income and other compensation for personal
       services (including commissions, overtime pay, tips, and bonuses);

       (2) interest, dividends, and royalty income;

       (3) self-employment income;

       (4) net rental income (defined as rent after deducting operating expenses and
       mortgage payments, but not including noncash items such as depreciation); and

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       (5) all other income actually being received, including severance pay, retirement
       benefits, pensions, trust income, annuities, capital gains, social security benefits other
       than supplemental security income, unemployment benefits, disability and workers’
       compensation benefits, interest income from notes regardless of the source, gifts and
       prizes, spousal maintenance, and alimony.


Tex. Fam. Code Ann. § 154.062(b) (West Supp. 2010). Courts must require parties to provide

this information to the court. Id. § 154.063 (West 2008). In the absence of evidence of wage and

salary income, courts must presume that the party has wages or salary equal to the federal minimum

wage for a 40-hour week. Id. § 154.068. Incarceration alone does not rebut the minimum-wage

presumption, and there is no legal presumption that an inmate has no assets. In re M.M., 980 S.W.2d

699, 700-01 (Tex. App.—San Antonio 1998, no pet.). Courts consider these resources, then deduct

certain expenses to determine the net resources available. See Tex. Fam. Code Ann. §§ 154.061-.062

(West 2008 & Supp. 2010). In determining whether application of the guidelines would be

unjust and inappropriate, the court must consider several issues, including “any financial resources

available for the support of the child.” See id. § 154.123(b) (West 2008). The guidelines set a

percentage of monthly net resources that should be devoted to child support depending on the

number of children. Id. § 154.125 (West Supp. 2010). Under the guidelines, an obligor should

provide 25% of his net resources to support his two children. Id.

               The trial court necessarily based its child-support determination on Perla’s testimony

because Jorge declined to provide any testimony or evidence. Perla testified that she believed

Jorge earned $3,000 per month. She also testified that she and Jorge had sold some real estate in

September 2009 and that each had received a check for $37,000. Although the trial court did not

expressly state the basis for its calculation of child support, we note that the award conforms to the

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guidelines for an employed person who earns $3,000 monthly and has two children. See Tex. Fam.

Code Ann. §§ 154.061 (employed persons 2010 tax chart) (West Supp. 2010), & .125 (guidelines

for person with two children). Under the 2010 statutory chart, the net monthly income for an

employed person paid $3,000 monthly is $2,472.27, and 25% of that is $618.07. Such application

of the guidelines to the evidence is rebuttably presumed to be both reasonable and in the children’s

best interest. See Tex. Fam. Code Ann. § 154.122.

               Jorge argues that the award is erroneous because there was no persuasive evidence

that he had any income. He contends that Perla’s testimony about his former income was uncertain

at best and that there is no documentation in the record supporting her testimony about the alleged

amount of his former income or about the proceeds from the alleged sale of real estate. He states

that there is no showing that he has any income or any ability to earn income as a fence builder

or otherwise while in jail. He contends that, with no proof of current income being received, the

trial court should have used the minimum wage presumption to calculate his child support.5

               We conclude that the trial court did not abuse its discretion by making the

child support award based on the evidence before it. Perla’s testimony that Jorge made $3,000

per month and had been paid $37,000 for a real estate sale two months previously was undisputed.

Jorge was in court and did not cross examine her or present any evidence regarding his past or

present income. Although Jorge undisputedly was in jail at the time of the trial, there is no evidence




       5
         Although the record is silent as to the amount, we note that the federal minimum wage
was $7.25 per hour in November 2010. The statutory chart lists $1,112.79 as the net monthly
wage for a person earning the federal minimum wage. See Tex. Fam. Code Ann. § 154.061
(West Supp. 2010). Twenty-five percent of that total is $278.20.

                                                 10
about exactly how long he had been or would be in jail, nor is there any evidence that he had

exhausted the $37,000 or any other assets that could be considered as “financial resources available

for the support of the child” under family code section 154.123(b). The court set child support based

on the only evidence in the record about Jorge’s income and his ability to pay that amount from his

present assets. We find no abuse of discretion in the trial court’s determination that Jorge would

serve the children’s best interest by providing them with $618 monthly in child support, and that

at the time of the hearing he had the financial resources to provide that support for his children.

               Similarly, the trial court did not abuse its discretion by awarding $10,506 in

retroactive child support from May 1, 2008. Courts must use the child-support guidelines in

determining whether retroactive support is warranted. Tex. Fam. Code Ann. § 154.131 (West 2008).

Courts must consider the obligor’s resources during the relevant time frame. Id. § 154.131(a). The

court must further consider issues such as whether an award of retroactive support might impose an

undue financial hardship on the obligor. Id. § 154.131(b)(3). The court must also consider whether

the obligor has provided actual support. The evidence of Jorge’s monthly income set out above is

also relevant to this issue. Perla also testified that Jorge had provided $300 total in child support

during the separation. Jorge did not testify, but attached to his motion for new trial carbon copies

of checks to Perla totaling $1,000. The checks do not state the purpose for which they were

paid, and the trial court was not required to find that these payments were for child support. (The

trial court may, however, have accounted for some of these payments by making the obligation begin

on May 1, 2008, rather than April 1, which is when Perla claims the separation began.) We also note

that, although Jorge asserts that he posted $570,000 in bonds, he does not provide evidence



                                                 11
to support this assertion. Based on this record, we conclude that the trial court did not abuse its

discretion by determining that it was in the children’s best interest for Jorge to pay his children

support at $618 per month for 17 of the months of separation for a total of $10,506 in past

child support due.


Attorney’s fees

               Jorge challenges the award of attorney’s fees to Perla without a direct pleading for

attorney’s fees in the initial petition, without testimony regarding hours spent on the clients or

documentary evidence supporting the bills, without segregation of the attorney’s fees from costs and

expenses, and without evidence regarding whether “good cause” exists for payment of the fees.

               When, as in this case, a statute states that a trial court “may” award attorney’s fees,

such an award is discretionary and we review the trial court’s choice to award fees under the abuse-

of-discretion standard. Playoff Corp. v. Blackwell, 300 S.W.3d 451, 458-59 (Tex. App.—Fort Worth

2009, pet. denied). We then review whether sufficient evidence supports the amount of fees

awarded. Goodson v. Castellanos, 214 S.W.3d 741, 758-59 (Tex. App.—Austin 2007, pet. denied);

see also Garcia v. Gomez, 319 S.W.3d 638, 646 (Tex. 2010).

               Perla acknowledges that she did not plead for attorney’s fees in the divorce petition,

but correctly notes that she requested them in her application for protective order. The family code

permits courts to assess reasonable attorney’s fees when considering a request for a protective order

against a party found to have committed family violence. Tex. Fam. Code Ann. § 81.005(a)

(West 2008). The fees awarded as compensation for a private attorney “shall be paid to the private

attorney who may enforce the order for fees in the attorney’s own name.” Id. § 81.006(a). These

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statutes do not require a showing of “good cause” to award the fees. Perla’s attorney testified as

follows regarding attorney’s fees:


       I practice in Travis County and the surrounding counties. I charge $375 an hour. I
       am board certified and have been since 2002. And my fees are reasonable and were
       necessary in this case.

       We had several hearings, we’ve had to file a protective order and a temporary
       ex parte protective order. So Mrs. Monroy paid me $6,000 at the beginning and
       that’s depleted. And so I think I asked for $6,000 in the written final decree of
       divorce. But, actually, it’s going to be closer to 7,500. And we are asking that he pay
       all of my fees.


The trial court awarded $7,500 in attorney’s fees payable to and enforceable by Perla’s attorney.

                 Factors that a factfinder may consider when determining the reasonableness of

a fee include:


       (1) the time and labor required, the novelty and difficulty of the questions involved,
       and the skill required to perform the legal service properly;

       (2) the likelihood . . . that the acceptance of the particular employment will preclude
       other employment by the lawyer;

       (3) the fee customarily charged in the locality for similar legal services;

       (4) the amount involved and the results obtained;

       (5) the time limitations imposed by the client or by the circumstances;

       (6) the nature and length of the professional relationship with the client;

       (7) the experience, reputation, and ability of the lawyer or lawyers performing the
       services; and

       (8) whether the fee is fixed or contingent on results obtained or uncertainty of
       collection before the legal services have been rendered.



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Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997) (quoting

Tex. Disciplinary Rules Prof’l Conduct R. 1.04, reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. G,

app. A ( West Supp. 2010) (Tex. State Bar R. art. X, § 9)).

               Perla’s attorney testified that she charges $375 per hour and requests $7,500 in fees

(without regard to court costs or other fees), which simple division shows to be a claim for 20 hours

of work. Perla’s attorney’s testimony reveals that the attorney is sufficiently skilled and experienced

to be board certified. Perla’s attorney testified without contradiction that she believes her fees to

be reasonable and necessary. Jorge presented no evidence countering Perla’s attorney’s testimony

and did not cross-examine her regarding the work performed. Perla prevailed at each stage of the

protective order proceeding. Although the award of attorney’s fees appears in the divorce decree,

it does not specify a basis for the award, and the fee award could be compensation solely for work

leading to the protective order. Jorge has not demonstrated otherwise, and thus has not shown that

the trial court erred by awarding the attorney’s fees on this record.


                                          CONCLUSION

               We conclude that, on the record presented, Jorge has not demonstrated that the

trial court erred. We affirm the judgment.




                                               Jeff Rose, Justice

Before Justices Puryear, Pemberton and Rose

Affirmed

Filed: August 31, 2011

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