Opinion filed Dec ember 4, 2008



### In The 

# Eleven th Court of Appeals

____________ 

### No. 1 1- 07 -0 00 66 -CV

____ ____ __ IN TH E INT ERE ST OF A. L. AN D R .L. , C HILDREN

On App eal from the 132nd District Court

Scurry County, Texas
Trial Court Cause No. 22679

M E M O R

A N D U M O P I N I O N At issue in the appea l of this suit aff ecting the parent-child relationship is the propriety of an order for c hild suppo rt aga i n s t the incar cer ated f ather of the c hildren. The suit wa s filed by the at t o rney g ener al’s off

ice a g ainst L orenzo R. L arr alde I I I , the childre n’s father. L arr alde did not appea r at trial, and the trial court ordere d him to pay $9,600 in retroa ctive child support, $193 per month for cur

rent c hild support, an d m ed i ca l support of $35 per month. L arr alde a

ppeals pro se

. We affir m. L arr alde pr esents thre e issues for re v i ew
. I n the first issue, he a rg ues that the trial c ourt abused its discre tion by

failing to consider his pro se inmate affidavit of indig ence and answ er in lieu of a pers on al app e ara

nc e . In th e se c on d is su e , L arr a lde c on te nd s th a t th e tr ia l c ourt a bu se d it s dis c re tio n b y

inc or re c tly pr e sumin g wi tho ut p ro of that he was volun tari ly

un de re mpl oy e d. I n h is2

fi na l is su e , L arr a lde argue s th a t the tr ia l cou rt a bu se d its disc re tio n by or de ri ng the pa y me nt o f c hil d support without considering all of the re levant fa ctors re quired by law. Wit h respe ct t o the first issue, L arr alde asserts t hat t he trial court should have c onsidered the aff idavi t o f indig ence that he filed in the tria l court and that the aff idavit would have c onstitut ed pr oo f o f h is i na

bil ity to p ay any c os ts o r c hil d s up po rt . T he re c or d do e s c on ta in L arr a lde ’s a ff ida vit of indig ence ; however , that aff idavit was not admitted into evidence at the trial of this ca se. L arr alde did not appear

at the hea

ring , did not request a be nch wa rra nt, and did not ask to proce ed by

a ff ida vit . L arr a lde ’s a ff

ida vit did no t con sti tut e c omp e te nt ev ide nc e , an d the tr ia l court did no t a bu se its discretion in failing to c onsider it. In re B.R.G

. , 48 S.W .3d 812, 818 (Tex. App.—El Paso 2001,

no pe t.) ; Rey es v. Re

yes , 9 46 S.W. 2d

62 7, 63 0 (T e x. Ap p. —Wa c o 19 97 , no wr it)

. Th e fi rs t is su e is

overr uled. I n his second issue, L arr alde a sserts that the trial c ourt i n co rr ec tly presumed that he was voluntarily

unemploy ed or unde remploy ed. The rec ord does not ref lect that the t rial court made any such finding . The trial c ourt’s orde r wa s based upon T EX
. F AM
. C ODE ANN . § 154.068 (Ve rnon 2002). Section 154.068 re quires a tr ial court to pre sume, in the absenc e of e vidence of income, that a p ar t y re s p o n s i b l e f

o r t h e s u p p o rt o f a ch i l d “h as wa ges o r sa l ary eq u al t o t h e f ed er al m i n i m u m wa ge for a 40-hour we ek.” Seve ral of our sister courts have determined t hat i ncar cer ation alone doe s not rebut the minimum wag e pre sumption and that a trial court does not abuse its discretion in ordering child support ag ainst an incar cer ated person based upon minimum wag es whe n there is no evidence to the contra

ry
. In re B.R.G

. , 4 8 S. W.3 d at 81 8- 19 ; In re A.P. , 46 S.W .3d 347 (Tex. App.—Corpus Chr ist i 20 01 , no pe t.) ; In re J .A.G. , 1 8 S. W.3 d 7 72 (T e x. Ap p. —Sa n A nto nio 20 00 , n o p e t.) ; In re M.M. , 980 S.W. 2d

69 9 ( Te x. Ap p. —Sa

n A nto nio 19 98 , n o p e t.) ; Rey es , 946 S.W .2d 627. L arr alde’ s second issue is over

ruled. I n the third issue, L arr alde a rg ues that the tr ial court fa iled to consider a ll of the rele vant fac tors that are require d by law under T EX
. F AM
. C ODE ANN . § 154.123(b) ( Ver non 2002). Although, a s pointed out by L arr alde, the tr ial court de termined that the mother’s m o n t h ly net
resour ces “ are un k

no wn ,” the rec ord does not support L arr alde’ s contention that the trial cour t failed to consider the f

actor s require d by

Section 154.123(b). The evidenc e showed that the mother ha d obtained hea lth insurance f or t he children throug h Medica id. This evidence would indicate that the3

amount of the mother’s n et monthly resour ces w as limited. Although the e x act amount of the mother’s monthly net resour ces was unknown, the trial court could have deter mined based upon the evidenc e that the mother’s resource s wer e li mited. We cannot determine that the t rial cour t failed to consider the r equire d fac tors. Moreove r, an y er ror in failing to make a dete rmination as to the mother’s monthly

net re source s does not constitute reve rsible er ror unde r T EX
. R. A PP
. P. 44.1(a) beca use i t did not probably

cause the re ndition of an improper judg ment. Se e Sto c k e r v . M ag e ra , 807 S.W .2d 753, 754 (Tex. App.—Texarkana 1990, writ denied) . The third issue is overr uled. The judg ment of the trial c ourt is affir med.

J I M R. W RI GHT

CH I EF JUSTI CE

Dec ember

4, 2008 Panel consists of: Wright, C.J ., M c C a l l , J. , an d

S t r an g e , J.