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. 
2

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 
3

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 
4

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. 
5

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).
6

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. 
7

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).
8

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.
9

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 
10

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.
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Conclusion

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

James T. Campbell

 Justice