lOTION l)lNlEl): Opinion issued November 1, 2012.

In The

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No. 05-I 2-00944-CV

IN TIlE INTEREST 01 P.E., C.E., AND S.E., ClllLiflN

On ;Ppeal from the 301st Judicial District Court

Dallas County. Texas

Trial Court Cause No. I)F-10-5399

MEMORANDUM OPINION ON MOTION TO REVIEW

TRIAL COURT ORDER SUSTAINING CONTEST TO

AFFIDAVIT OF INDIGENCE

Belore Chiel .Justice Wright, Justice Francis, and Justice Lang—N’l iers

Opinion By Justice Lang-Miers

Before the Court is Father’s motion to review the trial court’s order sustaining the court

reporter’s contest to his affidavit of indigence. We conclude the trial judge did not abuse her

discretion in sustaining the contest and deny Father’s motion.

BACKGROUNI)

Father, pro se at the time, filed his affidavit following final summary judgment in favor of

appellee, Father’s former attorney, on appellee’s petition for attorney’s fees. Father used a pre

printed affidavit fbrm which included sections concerning (1)the amount and sources ofincome, (2)

debts and expenses, and (3) property owned. Father averred he was unable to pay court costs and

indicated in his affidavit that he received $790 each month in public benefits including supplemental

social security disability income (SSI). He also indicated he owned a car valued at $1,000 and had
$2840 in monthly expenses consisting of“rent/house payments/maintenance,” food and household

supplies, utilities and telephone, hSflaaprôjti()fl, auto repair, gas,” and clothing and laundry.

Seeking “competent evidence” other than the affidavit, the court reporter contested the

affidavit, and the trial court held a hearing. Father, the sole witness and represented then by pm bono

counsel, testified upon questioning by the court reporter and appellee’s counsel that he lived with

his wife and children; that his wife worked as a nurse’s aide making $9 an hour and had made

$16,819 the previous year; that he received $698 in 551 benefits each month; and that he owed

approximately $38,000 in student loans. He testified further that he owned a house valued by the

county appraisal district at $115,000 and two cars. He explained, though, that the house “had been

placed... on shortsale” because he was behind on his mortgage payments, and one ofthe cars was

inoperable. Upon questioning by his counsel, Father explained he had not included his wife’s

income in his affidavit because he did not know what it was at the time he completed the affidavit.

He became aware ofher income the day before the hearing when they filed their tax return. Father

also testified he had ajoint checking account with his wife and had received assistance from Dallas

County and the Salvation Army to pay his utility bills.

During the questioning by Father’s counsel, the trialjudge observed that there “seem[ed] to

be some real discrepancies” between the affidavit and testimony. Appellee’s counsel then urged the

trial judge to disregard the affidavit. Father’s counsel responded that there were no discrepancies,

just omissions and that the omissions were “to [Father’s] detriment” and not of “something” that

“benefitted” Father. Disagreeing with Father’s counsel, the trial judge sustained the contest and

specifically found Father had “failed to appropriatelyprepare [the] affidavit,” had “intentionallyand

knowingly filed... a false affidavit,” and had “intentionally andknowingly left out [wife’s] income,

infbrmation concerning his vehicles,. . . information about the joint checking account. . . [and

—2—
information aboutj the real estate,”

STANDARD OF REVIEW AND APPIJCABLE LAW

We review a trial court’s ruling on a contest to an affidavit of indigence for abuse of

discretion. Basaldua v. Hadden, 298 S.W.3d 238, 241 (Tex. AppSan Antonio 2009, no pet.) (per

curiam). We will conclude the trial court abused its discretion if it acted without reference to any

guiding rules or principles or in an arbitrary and unreasonable manner. Id. As the factfinder, the

trial court is the sole judge ofthe credibility of the witnesses and evidence. In re A.R., 236 S.W.3d

460, 471 (Tex. App.Dallas 2007, no pet.) (op. on reh’g). We may not reverse the trial court’s

decision simply because we might have reached a different result. See Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

DISC USS ION

Given the record before us, we cannot conclude the trial judge abused her discretion in

sustaining the contest. The trial judge’s ruling was based on her assessment of Father’s credibility.

Although Father explained his reasons for omitting certain information and provided information

omitted from the affidavit during his testimony, the trial judge observed Father’s demeanor and

appearance as he testified, and as the fact-finder, evaluated his credibility. We will not substitute

our judgment for that of the trial judge. Accordingly, we deny Father’s motion.

Having concluded the trial judge did not abuse her discretion in sustaining the contest, we

ORDER Father to pay, or make arrangements to pay, for the clerk’s and court reporter’s records

within twenty (20) days of the date ofthis opinion.
We caution hither that tii lure to 1ay br the reporters record will result in this appeal being

submitted without that record ftiilure to pay tor the clerk’s record will result in dismissal of this

appeal without further warning. See TEX, R. Api. P. 373(b), (c), 423 (b),(c),

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