                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-12-00470-CV


                 IN THE INTEREST OF E.D.F. AND C.G.F., CHILDREN

                           On Appeal from the 121st District Court
                                     Terry County, Texas
                 Trial Court No. 18,996, Honorable Paula Lanehart, Presiding

                                     October 9, 2014

                             MEMORANDUM OPINION
                 Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.


       Appellant Stephen G. Finley, appearing pro se, appeals portions of an order in a

family law matter. Through two issues, he challenges the trial court’s finding that he

failed to prosecute a 2004 motion to modify child support and its order setting his

current child support obligation at the rate of the federal minimum wage. The appellees

are Beverly Diane May and the Office of the Attorney General (OAG). May did not file a

brief. Finding no abuse of discretion by the trial court, we will affirm the order appealed.
                                      Background


       Finley and May are the parents of two daughters, E.D.F. and C.G.F., born in

1993 and 1995 respectively. They were divorced in 1997, by decree of a Lubbock

County district court. The decree named May sole managing conservator of E.D.F. and

C.G.F. and Finley possessory conservator. Finley was ordered to pay $488 per month

as child support.


       May moved E.D.F. and C.G.F. to Travis County, Texas. Finley remarried in 2000

and he and his wife have one child born in November 2001. In December 2002, a

Travis County district court modified the decree, increasing Finley’s child support

obligation to $585 per month.


       Finley holds a master’s degree with work toward a Ph.D. He was employed as a

technical writer for the University of Texas at Austin and later Texas Tech University.

His employment with Texas Tech ended in November 2003. According to May’s trial

testimony, from June 2004 through January 2010, and from March 2010 through April

2011 Finley made no child support payment in the amount ordered.


       In early 2004, Finley filed a motion to modify support in Travis County. Although

this pleading is not included in the record, Finley apparently argued a material change

of circumstances because of loss of his employment. It is undisputed that the motion

was never heard by a court of Travis County.


       In April 2011, the OAG brought a motion in Travis County to enforce and modify

the decree’s support order. Among other things, the motion asked the court to hold

Finley in contempt for nonpayment of support. In June 2011, Finley began paying $85

                                           2
per month, from his wife’s income, toward his child support obligation. May moved the

children to Terry County and the case was transferred during 2011.


       In an April 2012 motion, Finley asked the district court of Terry County to modify

the support order by reducing his child support obligation to $85 per month or less. He

based the requested change on lost employment and his inability to locate a new job.

He requested the court to consider the motion “an amendment” of his 2004 motion.

Elsewhere in the motion, Finley moved for an order holding May in contempt for, among

other things, denying him visitation.


       At a July 2012 hearing, the trial court considered the motions filed by the OAG

and Finley. Appointed counsel represented Finley on the OAG’s contempt motion while

on all other matters Finley appeared pro se. Finley presented a substantial body of

tangible and testimonial evidence supporting his claim of continuing unemployment. He

testified that his inability to find employment, ranging from minimum wage to

professional positions, stemmed from a wrongful termination lawsuit he unsuccessfully

brought against Texas Tech. He told the court he was over- or under-qualified for the

positions he sought and lacked resources to relocate or open a business.


       In a later order, the trial court ruled on the matters heard at the July hearing. It

held Finley in contempt for failing to make the child support payment due December 1,

2004. He was ordered jailed for ten days with the sentence suspended in favor of

community supervision for fourteen months. Finley’s child support arrearages were

confirmed through November 2011 in an award of $59,558.28 in favor of the OAG.

Finley’s motion to hold May in contempt was denied. Applying the minimum wage



                                            3
presumption of Family Code section 154.068, the order fixed Finley’s current monthly

child support obligation, retroactive to December 1, 2011, at $199.35. May was ordered

to provide health insurance for C.G.F.        E.D.F. had reached the age of majority.

According to a finding stated in the order and later in findings of fact and conclusions of

law, Finley failed to prosecute his 2004 motion to modify.


                                          Analysis


       By his first issue, Finley argues the trial court abused its discretion by finding he

failed to prosecute the 2004 motion to modify child support.1            Within this global

complaint Finley contends he incorporated by reference the 2004 motion in subsequent

pleadings and intended its hearing at the July 2012 setting, it was error to dismiss the

motion after the hearing since neither the court nor a party previously sought dismissal,

and he was not afforded notice of the trial court’s intent to dismiss.


       A trial court is empowered to dismiss a case for want of prosecution either under

Texas Rule of Civil Procedure 165a or its inherent power to control its docket. Villarreal

v. San Antonio Truck & Equip., 994 S.W.2d 628, 630 (Tex. 1999).               Under either

standard, a party must be provided notice and opportunity to be heard before a court

may dismiss a case.      Id.   We review a trial court’s order of dismissal for want of

prosecution by the abuse of discretion standard. MacGregor v. Rich, 941 S.W.2d 74,

75 (Tex. 1997).




       1
         Neither the final order nor the findings of fact and conclusions of law state the
trial court dismissed Finley’s 2004 motion to modify for want of prosecution. However,
since Finley bases his argument on a belief that his motion was dismissed for want of
prosecution, we begin our analysis of his first issue accordingly.

                                              4
       As noted, Finley referenced the 2004 motion in his 2012 motion. The record

includes no pretrial effort by the OAG, May, or the trial court to dismiss the 2004 motion

for want of prosecution. The record of the July 2012 trial itself contains no mention of

possible dismissal of the 2004 motion for want of prosecution. Nor does the record

include notice to Finley of possible dismissal of the 2004 motion for want of prosecution.

Indeed, the parties vigorously tried the issue of Finley’s requested reduction in child

support because of his claimed unemployment from 2004 to the time of trial.


       The record does not contain a motion for new trial or motion to reinstate in which

Finley pointed out to the trial court his now-asserted claim of wrongful dismissal for want

of prosecution. Indeed, we find no indication Finley took any measure to bring his

contention to the trial court’s attention.       Rather, he initiated the present appeal.

Because Finley did not first raise his present complaint in the trial court and because the

error he asserts is not fundamental,2 he failed to preserve his complaint for our review.

See TEX. R. APP. P. 33.1(a); Luna v. UPS, Inc., No. 01-02-00144-CV, 2003 Tex. App.

LEXIS 465, at *4-5 (Tex. App.—Houston [1st Dist.] Jan. 9, 2003, pet. denied) (finding

non-fundamental error concerning notice of intent to dismiss suit not raised in motion to

reinstate was not preserved for appellate review); Thompson v. Ereckson, 814 S.W.2d

805, 808 (Tex. App.—Waco 1991, no writ) (stating that unless error is fundamental,

constitutional challenge not properly raised in trial court by motion to reinstate is waived

on appeal). Cf. In re J.F.C., 96 S.W.3d 256, 291 (Tex. 2002) (noting that a harm

analysis is not conducted for jurisdictional fundamental-error review).

       2
        Fundamental error in a civil case exists only “in those rare instances in which
the record shows the court lacked jurisdiction or that the public interest is directly and
adversely affected as that interest is declared in the statutes or the Constitution of
Texas.” Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam).

                                             5
       Moreover, as for disposition of Finley’s motion on its merits, we do not find error

by the trial court. Family Code section 156.401(b) provides, “A support order may be

modified with regard to the amount of support ordered only as to obligations accruing

after the earlier of (1) the date of service of citation; or (2) an appearance in the suit to

modify.” TEX. FAM. CODE ANN. § 156.401(b) (West 2014). Thus, while the trial court is

afforded discretion to order retroactive child support, retroactive modification is not

required. In re H.J.W., 302 S.W.3d 511, 514 (Tex. App.—Dallas 2009, no pet.). See In

re Naylor, 160 S.W.3d 292, 294 (Tex. App.—Texarkana 2005) (citing In re J.G.Z., 963

S.W.2d 144, 149 (Tex. App.—Texarkana 1998)); Lazarte v. Lazarte, No. 13-11-00362-

CV, 2012 Tex. App. LEXIS 6152, at *7-8 n.5 (Tex. App.—Corpus Christi July 26, 2012,

no pet.) (mem. op.) (same); cf. In re H.J.W., 302 S.W.3d at 514 (recognizing “the family

code generally prohibits the retroactive modification of child support”). But the record

here contains no evidence of the date of service of Finley’s 2004 motion and the date of

May’s appearance.       Finley appended to his appellate brief copies of documents

reflecting those events, but none of the appended documents are a part of the appellate

record. We may not give effect to evidence attached to a brief but not made part of the

record developed at trial. Scott v. Simpson, 2005 Tex. App. LEXIS 10359, at *1-2 (Tex.

App.—Amarillo Dec. 12, 2005, no pet.) (per curiam, mem. op.) (citing Castano v. San

Felipe Agricultural, Mfg. & Irr. Co., 147 S.W.3d 444, 452-53 (Tex. App.—San Antonio

2004, no pet.) and Custom-Crete, Inc. v. K-Bar Services, Inc., 82 S.W.3d 655, 659 (Tex.

App.—San Antonio 2002, no pet.)). Because the record does not show the trial court

had evidence of the specific dates for service of the 2004 motion and May’s responsive

appearance, it lacked any evidentiary basis to grant Finley relief.



                                              6
      For both these reasons, Finley’s first issue is overruled.


      In his second issue, Finley argues the trial court erred by setting child support

according to the minimum wage presumption of Family Code section 154.068. At the

time of hearing, that section provided, “In the absence of evidence 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.”3


      In its findings of fact and conclusions of law the trial court found:


      The court orders (guideline) current child support of $199.35 per month for
      the one unemancipated child and beginning the 1st day of December, (sic)
      2011 and on the same day of each month thereafter until emancipation or
      further order of court. The Court finds that the federal minimum wage
      presumption of Section 154.068, Texas Family Code, applied and
      $1,256.67 gross monthly resources based on minimum wage
      presumption. The final net monthly resources found by the Court is
      $1,116.12 and the court applies the alternative method of computing
      support for children in more than one household as set out in Section
      154.129, Texas Family Code.

      Generally, a complaining party must show that a trial court’s support order

amounts to a clear abuse of discretion before it will be disturbed on appeal. 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 and principles.        McGuire v. McGuire, 4

S.W.3d 382, 384 (Tex. App.—Houston [1st Dist.] 1999, no pet.).


      “A parent’s duty to support his or her minor child exists regardless of whether that

parent has been ordered to pay child support. It also exists regardless of whether that

parent has custody of the child.” R.W. v. Tex. Dep’t of Protective & Regulatory Servs.,


      3
       See Act of April 6, 1995, 74th Leg., ch. 20, § 1, 1995 TEX. GEN. LAWS 113, 161
(amended 2013) (current version at TEX. FAM. CODE ANN. § 154.068).

                                             7
944 S.W.2d 437, 440 n.4 (Tex. App.—Houston [14th Dist.] 1997, no writ) (citations

omitted); Villasenor v. Villasenor, 911 S.W.2d 411, 419 (Tex. App.—San Antonio 1995,

no writ) (noting a parent’s support obligation of a minor child). The duty to support a

child is not limited to a parent’s ability to pay from current earnings, but also extends to

his or her financial ability to pay from any and all sources that might be available. In re

Striegler, 915 S.W.2d 629, 638 (Tex. App.—Amarillo 1996, writ denied); Roosth v.

Roosth, 889 S.W.2d 445, 455 (Tex. App.—Houston [14th Dist.] 1994, writ denied);

Musick v. Musick, 590 S.W.2d 582, 586 (Tex. Civ. App.—Tyler 1979, no writ).


       The Family Code provides that the court “shall calculate net resources for the

purpose of determining child support liability.” TEX. FAM. CODE ANN. § 154.062(a) (West

2014). The Family Code specifies the method of calculating net resources. TEX. FAM.

CODE ANN. § 154.062(a) (West 2014). ‘“Net resources’ include all wage and salary

income, self-employment income, and all other income actually being received.”

Moreno v. Perez, 363 S.W.3d 725, 735 (Tex. App.—Houston [1st Dist.] 2011, no pet.)

(citing TEX. FAM. CODE ANN. § 154.062(b)). Section 154.063 provides that “[t]he court

shall require a party to . . . furnish information sufficient to accurately identify that party’s

net resources and ability to pay child support.” Id. (citing TEX. FAMILY CODE ANN. §

154.063). Without evidence of net resources “the court shall presume that the party has

income equal to the federal minimum wage for a 40-hour week to which the support

guidelines may be applied.” TEX. FAM. CODE ANN. § 154.068 (West 2014).4



       4
        This is the current version of the statute effective September 1, 2013. See Act
of May 20, 2013, 83rd Leg., R.S., ch. 1046, § 3, 2013 TEX. GEN. LAWS 2504, 2505
(amending TEX. FAM. CODE ANN. § 154.068). Whether under the former or current
version of section 154.068, our disposition of this issue would be the same.

                                               8
      As noted, Finley holds a master’s degree with work toward a Ph.D. He was

employed for several years by Texas Tech University as a technical writer. There is

evidence of extensive job searches for a variety of positions including customer service,

teaching, communications, and broadcasting.       Finley did not present evidence of

unemployability. Rather, he asserted he had been unable to find new employment for

the reasons noted earlier.


      When a case is tried to the bench, the court as fact finder judges the weight and

credibility of the witnesses and evidence, resolves any conflicts in the evidence, and

decides which testimony and witnesses to believe. In re Estate of Rice, No. 09-12-

00295-CV, 2013 Tex. App. LEXIS 7215, at *19-20 (Tex. App.—Beaumont June 13,

2013, no pet.) (mem. op.) (citing City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex.

2005); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003); HTS

Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—

Houston [1st Dist.] 2005, no pet.)).   The trial court here could have found Finley’s

evidence insufficient to rebut the minimum wage presumption of section 154.068. Thus,

it was statutorily bound to set child support according to the federal minimum wage for a

40-hour week. In re N.H.P., No. 05-04-00009-CV, 2004 Tex. App. LEXIS 10976, at *2-5

(Tex. App.—Dallas Dec. 7, 2004, no pet.) (mem. op.) (citing In re Martin, 881 S.W.2d

531, 536-537 (Tex. App.—Texarkana 1994, writ denied) (when record contained no

evidence of obligor parent’s wage or salary income and no evidence obligor parent was

unemployable, only currently unemployed, trial court correctly applied the minimum

wage presumption of section 154.068); In re Hidalgo, 938 S.W.2d 492, 495-96 (Tex.

App.—Texarkana 1996, no writ) (holding in the face of evidence of obligor’s wage at last


                                            9
job, a one year period of unemployment at the time of trial, and that she was not

unemployable, trial court correctly applied the presumption of section 154.068).


       In comparison, an obligor’s status as an inmate does not alone mean the person

lacks financial resources. In In re M.M., 980 S.W.2d 699, 700 (Tex. App.—San Antonio

1998, no pet.), the court refused to indulge a presumption of no income in favor of an

incarcerated obligor merely because of his incarceration. Noted the court, the obligor

did not present evidence in the trial court that he lacked financial resources. Id. It

further observed even if the obligor was currently unable to make support payments, the

assessment of income based on section 154.068 made it possible for the obligee to

collect arrearages should the obligor’s financial situation improve. Id. at 701.


       On this record, we cannot conclude the trial court abused its discretion in

applying the minimum wage presumption of section 154.068.5 Finley’s second issue is

overruled.




       5
          Within Finley’s argument under this issue appear threads of an equitable plea
that “justice and common sense dictate” setting child support “at or near zero” until he
begins generating income. Central to the contention is the idea that Finley should not
be strapped with debt because he conducted a “reasonable” and “exceptional” search
for employment. To the extent Finley intends this as a sub-issue complaining the trial
court erred by failing to depart from the child support guidelines, see TEX. FAM. CODE
ANN. §§ 154.122; 154.123; 154.130 (West 2014), we do not find the matter adequately
raised in the trial court to be preserved for appellate review. TEX. R. APP. P. 33.1(a). It
also was not sufficiently assigned on appeal as an issue for our consideration. TEX. R.
APP. P. 38.1(f),(i). Moreover, on this record, and despite Finley’s contrary assertion, the
trial court could reasonably have believed a departure from the guidelines was not in the
best interest of the child.

                                            10
                                 Conclusion


Having overruled Finley’s two issues, we affirm the order of the trial court.




                                          James T. Campbell
                                              Justice




                                     11
