### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00046- CV

Lori L. Legere , Appellan t

v. David Legere , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -F M- 03- 0073 63, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N Appellant L ori L

. L eg ere appea ls from a district cour t order de ny ing he r cla ims for child support and discovery sanctions ag ainst her ex-husband, appellee David L eg ere , and awa rding David attorne y ’s fe es ag ainst her. We will affirm the district cour t’s order

. 1

F ACTUAL AND P ROCEDURAL BACK GR OUND L ori and David had a minor child of their marria g e. When t h ey d ivorce d in 2003, L ori wa s ap pointed sole manag ing conser vator with the exclusive rig ht to desig nate the child’s residenc e, and David was appointed possessory conser vator and order ed to pay child support. I n J uly 2007, afte r L ori filed a motion to incre ase David’s m onthly child-support oblig ation, she and David enter ed into an ag ree d order that, among other things, set David’s child-support obligation
at $900 per month throug h J uly 2008. There afte r, the ag ree d order require d that David was to submit

Be cause the parties share a common surname, we will ref er to them by their first n am es 1 for c larity

.information reg arding his monthly income eac h J uly and that his child-support obligation would

equal 20% of his monthly income unless he failed to submit the require d information, in which case his monthl y

obliga tion would default to $1,030 per month. 2 Davi d l at er filed suit to modify his child-support obligation, seeking to reduc e his monthly pay

ment on the basis that he had rec ently l o s t his job. During the pendenc y of the proce eding , the district court issued two temporar y order s that change d the amount of David’s child-support obliga tion. The first, signe d in Marc h 2009, retroa ctively reduc ed David’s April and May 2008 pay

ments from $900 to $259.73, set his Aug ust 20 0 8 t h ro u g h J anuar y 2009 pay ments at $600 per month and his pay ments there aft er

— i

. e., beg inning Fe bruar y 2009—at $259.73 per month. The district court also found that David wa s i n arr ear s on his child-support pay ments in the amount of $719.46 and order ed him to pay L ori this amount. The second temporar y order , signe d in October 2009, chang ed David’s monthly support p ay m en t s to $600 per month

The re levant portion of the 2007 a g ree d order rea ds as follows: 2 I T I S ORDERED that David L eg ere is obligated to pay and shall pay to L ori L

. L eg ere child support of $900.00 per month, with the first pay ment being due and pay able on Aug ust 1, 2007 and a like pay ment being due and pay able on the first day of ea ch month there afte r until J uly 31, 2008. I T I S ORDERED that David L eg ere shall send a copy of a curr ent p ay s tub showing his y ear -to-date income to [L ori’s attorney ] o n o r about J uly 1, 2008. [L ori’s attorney ] shall, using the A tt o r n e y G e n e r a l c h ild support char ts, calc ulate 20% of David L eg ere ’s net income to deter mine the new ch i l d s u pport amount to beg in on Aug ust 1, 2008. I f David L eg ere fa i l s to send such pay stub to [L ori’s attorney ] in J uly 2008, David L eg ere is ORDERED to pay and shall pay to L ori L

. L eg ere child support of $1030.00 per month, with the first pay ment being due and pay able on Aug ust 1, 2008 and a like pay ment being due and p ay able on the first day of eac h month there afte r . . . . I f David L eg ere sends the pay stub as order ed, [L ori’s attorney ] shall calc ulate the appropr iate child support amount as set forth above and shall send such calc ulation to David L eg ere . In such case , David L eg ere is ORDERED to pa y and shall pay

to L ori L . L eg ere child support the new a mount of child support . . . . 2b egi n n ing, retroa ctively , Aug ust 1, 2009. This order also require d David to pay $620 i n b ac k

pay ments to L ori by

October 30, 2009. I n September 2010, L ori serve d David with discovery reque sts and, afte r he failed to respond to those reque sts, filed a motion to compel, further reque sting sanctions and attorney ’s fee s. Shortly befor e the hear ing on L ori’s motion to compel, Da v i d n o n suited his modification claim.

A few month s l ater , L ori filed a “Motion to Confirm Child Support Arre ara g e,”

asser ting that David’s failure to pay his $900 monthly child-support obligation as require d under the
terms of the 2007 ag ree d order had left him in arr ear s in the amount of $9,861.62 for the period betwee n Fe bruar

y 2, 2009, and Dec ember 31, 2010. A hear ing was held, and the dis t rict court’s subsequent orde r re flec ts that the parties presente d evidenc e and tha t a cour t reporte r wa s prese nt. Following the hea

ring , the district court issued a n order stating tha

t—

• “[N]o child support arr ear ag e exis ts and David L eg ere ’s curr ent child support balanc e is $0.00 (zero dollars) ”;

• “Da

vid L eg ere ’s child support obligation should continu e pursuant to the J uly 20, 2007 Orde r of the Court[] at the rate of $900 pe r month”;

• “L ori L eg ere ’s reque st for sanctions and attorney ’s fee s is DENI ED and any and all cla ims by

L ori L eg ere are DI SMI SSED”; and

• L ori L eg ere must pay David’s a ttorney ’s fe es in the amount of $2,500.

The district court subsequently made finding s o f fa ct and conclusions of law that essentially
restate the contents of its orde r. I t is from this order that L ori now appe als.

ANALYSIS L ori challeng es the district court’s order in four issues. First, she complains that the district court’s holding that David owed her no child-support arr ear ag e was predic ated, in her view, 3on the Marc h and October 2009 temporar y order s. This was err or, she asser ts, beca use those temporar y order s had been voided by David’s nonsuit. I n her third issue, L ori challeng es what she perc eives as the district court’s dismi s s al or denial of her reque st for discovery sanctions and attorney ’s fee s mere ly beca use, in her view, David had nonsuited his case . I n her second issue, L ori challeng es the sufficie ncy of the evidenc e supporting the district court’s holding that David’s future monthly child-support obl iga tion was $900 under t he 2007 ag ree d order

. Specifica lly , she arg ues that the evidenc e wa s insufficient to support a f inding that Da

vid ha d provided the re quired sala ry information, such that his obliga tion should have defa ulted to $1,030 per month. I n her fourth and final i ssue, L ori asser

ts that the evidence was insufficient to support the di strict court’s at t o rney ’s fee awa rd ag ainst her At the outset, we note that L ori has not reque s t ed or obtained a repor ter’s rec ord from the hear ing on her motion to confirm an arr ear ag e. The district court’s order states that it hear d evidenc e at this hea

ring , and there is nothing in the rec ord to the contra ry . L ori does not deny

that the district c ourt hear d evidenc e, either, a lthough she asser ts tha t “ there was no hear ing conducte d in which a court reporter was present .” (E m p h as is added.) Howeve r, the district court’s order expli citly states that a court repor t er wa s , in fac t, prese nt to rec ord the proce eding s (as would be require d unless excused by ag ree ment of the parties, see Tex. R. App. P. 13.1) and, in any event, L ori has no t p re s er v ed err or with respe ct to any complaint that the hear ing went forwa rd without a court repor

ter prese nt. See id

. R. 33.1. Consequently , we may not presume that the hear ing was nonevidentiar y , and L o ri h ad the burden of reque sting and bring ing forwa rd a repor ter’s rec ord from that hear ing in support of her appea l. See Michiana Easy Livin’ Country, Inc. v. Holten , 168 S.W .3d 777, 783 (Tex. 2005) (holding that appella t e court may presume that “pre trial hear ings are nonevidentiar

y absent a spec ific indication or a ssertion to the contra ry ,” but “[i] f the proce eding ’s 4nature , the trial court’s order , the party ’s briefs, or other indications show that an evidentiar y hear ing took place in open court, then a complaining party must prese nt a rec ord of that hear ing to establish harmful e rror ”) ( citing W alker v . Pack

er , 827 S.W .2d 833, 837 (Tex. 1992))). L ori’s fa ilure to do

so require s us to presume that t h e omitted evidenc e supports the district court’s ruling

. See DeSantis v. W

acke nhut Corp ., 793 S.W .2d 670, 689 (Tex. 1990); Bailey v. Gallagher , 348 S.W .3d 322, 325 (Tex. App.—Dallas 2011, pet. d en i ed ); Thomas v. Thomas , 902 S.W .2d 621, 626 (Tex. App.—Austin 1995, writ denied)

. This p re s u m ption is ultimately fata l to L ori’s issues on appea l. L ori’s first issue, as note d, presumes that the di strict court relied on t he Mar ch and October 2009 temporar

y order s in deter

mining the amount of child support David owed. Rely ing

on these temporar

y order s was err oneous, she argues, beca use the eff

ect of David’s nonsuit wa s to place the parties in the same position they wer e in befor e he filed his suit—i.e., befor e an y o f t he temporar y order s that modified his child-support obligations. See Crofts v. Court of Civil Appeals , 362 S.W .2d 101, 104 (Tex. 1962) (noting t hat nons ui t “p lace s the parties in the pos ition that they

wer e in befor e the court’s jurisdiction wa s i n voked just as if the suit had never been broug ht”); Hagberg v. City of

Pasadena , 224 S.W .3d 477, 484 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (“When a party nonsuits a leg al action, the parties are put back in the same po s i t i o n s as befor e the filing of the suit.” (citing id. )). But the district cou rt ’s order does not purport to rely on t h e t emporary order s in finding that there was no arr ear ag e; to the contra ry , it simply sta t es that “no child support arr ear ag e exis ts.” And while the d i s t ri ct court prepa red finding s of fac t and conclusions of law, these do not further illumi nate the bases for the co u rt’s order , and do not mention the temporar

y order s. L ori does not c omplain of , and has not prese rved err or conce rning , any omitted or additional finding s. For these rea sons, the substance of L ori’s first issue reduc es to 5a question of whether there was sufficie nt evide n ce to support the district court’s finding that

no arr ear age ex i s t ed

. Given the lack of a repor ter’s rec ord, we must presume that the evidenc e supported the finding—i.e., that there was evidenc e that David had paid whateve r child support he had leg ally owed. See DeSantis , 793 S.W .2 d at 6 8 9 ; B a iley , 348 S.W .3d at 325; Thomas , 902 S.W .2d at 626. We overr ule L ori’s first issue. We must overr

ule L ori’s third issue for simil ar rea sons. L ori asser ts in her third issue that the district court improperly relied on David’s nonsuit to deny her motion fo r s an ct i o ns. Specific al l y , she argues that the district court’s decision to deny her motion violated rule 162’s provision that nonsuits “have no eff ect on any motions for sanctions

. . . pending at the time of the [nonsui t] .” See Tex. R. Civ. P. 162. But this argument ag ain incorre ctly assumes that the distric t court relied on David’s nonsuit to deny this motion. The order , howeve r, mere ly denies L ori’s re quest for sanctions and attorney ’s fee s without e x planation. I t doe s not purport to rely on David’s nonsuit and, signific antly , there are any number of bases on which the district court could have relied to deny this motion. See id. R. 215.1 (setting forth bases for discovery sanctions). Nor d o t h e court’s finding s and conclusions indicate that it relied on David’s nonsuit in deny i n g L o ri relief

. Thus ag ain, the substance of L ori’s issue reduc es to a question of evidentiar y sufficie ncy and, g iven the l ac k o f a complete rec ord, we must presume that the evidenc e in the omitted rec ord supports at least one basis fo r d eny ing L ori’s motion. See DeSantis , 793 S.W .2d at 689; Bailey , 348 S.W .3d at 325; Thomas , 902 S.W .2d at 626. Acc ording ly , we ove rrule L ori’s third issue.

The abse n ce of a repor

ter’s rec ord likewise controls our dispositi on of L ori’s

rema ining issues, both of which chal l en ge t h e sufficie ncy of the evidenc e supporting fac tual deter minations by the district court. I n her second issue, L ori asser ts that the district court’s finding that David’s future child-support pay ments wer e to be $900 per month under the 2007 ag ree d order

6is err oneous beca use the “ record is leg ally and fac tually insufficient” to support a finding that David provided the appropr iate financ ial documents require d by the 2007 ag ree d order

. (Emphasis added.) But there is no evidentiar

y rec ord here and, as a result, we must presume that evidenc e in the missing

rec ord supports not only the finding that David provided the require d financ ial inf ormation, but also any other finding that would suppo rt t he district court’s child-support deter minations. See

3 DeSantis , 793 S.W .2d at 689; Bailey , 348 S.W .3d at 325; Thomas , 902 S.W .2d at 626. L ikewise, and for the same rea sons, w e reje ct L ori’s fourth issue on appea l that the evidenc e was insufficient
to support the district court’s awa rd of attorney ’s fee s. Acc ording ly , we overr ule L ori’s second and fourth issues.

CONCLUSION

Having overr

uled ea ch of L ori’s issues, we a ffirm the district c ourt’s judg ment.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and H enson Affir med Filed: Aug ust 29, 2012

We also note that L ori asser ted in her arr ear ag e motion that $900 per m o n t h i n child 3 support was the corr ect “amount and fre quency of obligation” as of the date of the motion. To that extent, the dist rict cour

t’s finding here comports with her ow n pleading s. 7