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Chike Rapulueke Mbonu v. Office of the Attorney General ( 2008 )


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  • Opinion issued May 22, 2008











    In The  

    Court of Appeals

    For The

    First District of Texas



    NO. 01-07-00659-CV



    CHIKE RAPULUEKE MBONU, Appellant



    V.



    THE OFFICE OF THE ATTORNEY GENERAL, Appellee



    On Appeal from the 328th District Court

    Fort Bend County, Texas

    Trial Court Cause No. 05-CV-146,326



    MEMORANDUM OPINION

    Appellant, Chike Rapulueke Mbonu, brings this restricted appeal pursuant to Tex. R. App. P. 30 to challenge a post-answer default judgment (1) rendered against him in a child-support proceeding brought on behalf of his former spouse, Chinwe E. Ezeh, by the Office of the Attorney General pursuant to the Uniform Interstate Family Support Act (UIFSA). See Tex. Fam. Code Ann. §§ 159.001-159.902 (Vernon 2002 & Supp. 2007). (2) Mbonu's three issues challenge the trial court's order, which imposes on Mbonu a duty to provide support for his minor daughters and requires him to pay retroactive and future child support and retroactive and future medical support. Mbonu challenges the sufficiency of the evidence to support the amount of child support ordered and the trial court's implied finding that Mbonu is able to meet that obligation; he also challenges the trial court's method of calculating the support ordered. We affirm.

    Background

    Mbonu and his former spouse, Chinwe E. Ezeh, were married on August 1, 1999. The couple separated in 2002, shortly after their second daughter was born. (3) A Florida decree of divorce signed on May 5, 2004 dissolved the marriage and awarded Ezeh custody of her two daughters and the right to use her maiden name. The decree contained no support provisions, however, which were "[r]eserved for a future hearing." (4) After relocating to New Jersey, Ezeh sought relief, pro se, from the Chancery Division/Family Part of the Superior Court of New Jersey, but her action was dismissed on April 1, 2005, for lack of personal jurisdiction over Mbonu, and her requested relief was denied. Upon inquiry received from the Superior Court of New Jersey, County of Camden on May 10, 2005, Ezeh then sought relief through the Office of the Texas Attorney General. On November 18, 2005, the Attorney General filed a petition seeking family support on Ezeh's behalf, pursuant to section 159.401(a) of the UIFSA. See Tex. Fam. Code Ann. § 159.401(a) (Petition to Establish Support Order).

    The Attorney General's standard-form petition requested an order that would (1) establish child support, medical coverage, and support to be paid by Mbonu for a prior period and the future and (2) authorize collection of arrears and income withholding in the future. In support of the petition, the Attorney General provided copies of all pertinent court decrees and papers, the children's birth certificates, financial data regarding child care for the children, and Ezeh's sworn "General Testimony." (5) See Tex. Fam. Code Ann. § 159.311 (Pleadings and Accompanying Documents). The Attorney General's petition included a request for production of itemized documents from Mbonu that would "show the nature and extent of his ability to pay child support."

    On September 6, 2006, the Attorney General obtained service on Mbonu, who filed his answer by general denial on September 28, 2006. At a hearing on November 6, 2006, the trial court signed an order granting permission to withdraw to the attorney who filed Mbonu's answer. Mbonu was present at the hearing and testified that he agreed to the withdrawal. The trial court reset the hearing on Ezeh's petition to December 4, 2006, after which it was reset several more times.

    On April 5, 2007, the trial court conducted the hearing on Ezeh's petition and signed the default order challenged here. The face of the order recites that Mbonu was duly notified, but did not appear, and that a record of the hearing was "not made by audio recording." (6) The record indicates that neither Mbonu nor his new trial counsel appeared on April 5, 2007, when the trial court signed the order that Mbonu challenges here. This order imposed a duty of support on Mbonu and required that he pay retroactive child support of $24,605.00, retroactive medical support of $4,682.30, future child support from May 1, 2007 onward of $703.00 per month, and future medical support from May 1, 2007 forward of $133.78 per month. See Tex. Fam. Code Ann. § 159.401(c). (7) On April 17, 2007 the trial court issued rule 239a notices of default to trial counsel and to Mbonu at his last known address. (8) Mbonu's trial counsel filed untimely motions for new trial and to set aside the default judgment on May 22, 2007. A docket entry by the trial court on June 6, 2007 indicates that both motions were denied on the grounds that the trial court's plenary power over its judgment had expired, but there is no formal ruling on the motions. Mbonu timely filed a notice of restricted appeal.

    Restricted Appeal

    A restricted appeal is a direct attack on a judgment, Roventini v. Ocular Sciences, Inc., 111 S.W.3d 719, 721 (Tex. App.--Houston [1st Dist.] 2003, no pet.). To prevail by this restricted appeal, Mbonu must satisfy the following elements: (1) his notice of restricted appeal must have been filed within six months after the trial court signs the judgment; (2) by him, a party to the lawsuit; (3) who neither participated in the hearing that resulted in the judgment nor timely filed a postjudgment motion or a request for findings of fact and conclusions of law; and (4) the face of the record must disclose the claimed error. See Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004); Roventini, 111 S.W.3d at 721. This appeal concerns only the fourth element.

    The face of the record in a restricted appeal consists of the papers on file with the trial court when it rendered judgment, including the clerk's record and any reporter's record. Miles v. Peacock, 229 S.W.3d 384, 387 (Tex. App.--Houston [1st Dist.] 2007, no pet.); Roventini, 111 S.W.3d at 721-22 (citing Gen. Elec. Co. v. Falcon Ridge Apartments Joint Venture, 811 S.W.2d 942, 944 (Tex. 1991) (decided under former writ-of-error practice, which restricted appeal replaced)). Because a restricted appeal affords the same scope of review as an ordinary appeal, the appealing party may challenge the legal and factual sufficiency of the evidence to support the order rendered. See Miles, 229 S.W.3d at 387 (citing Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)).

    Sufficiency Challenge to Post-Answer Default Judgment

    A trial court may not render a post-answer default judgment based on the pleadings; the plaintiff must offer evidence and prove its case. Stoner v. Thompson, 578 S.W.2d 679, 682 (Tex. 1979); Sharif v. Par Tech, Inc., 135 S.W.3d 869, 873 (Tex. App.--Houston [1st Dist.] 2004, no pet.). Mbonu argues that the Attorney General, acting on Ezeh's behalf, did not prove her case. He disputes the sufficiency of the evidence to support the trial court's order and the methods by which the trial court calculated Mbonu's support obligations.

    A. Standard of Review

    We review orders of child support for abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Miles, 229 S.W.3d at 388. We note that the UIFSA vests considerable discretion with trial courts by establishing "Special Rules of Evidence and Procedure" regarding admissibility of evidentiary documents and testimony. See Tex. Fam. Code Ann. § 159.316(a)-(j). A trial court abuses its discretion when it acts arbitrarily or without reference to guiding principles. Worford, 801 S.W.2d at 109; see Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A trial court has no discretion in determining what the law is, which law governs, or how to apply the law, and we review rulings in this category de novo. See Walker, 827 S.W.2d at 840. But when, as here, we review a ruling that results from the trial court's having resolved underlying facts, we must defer to the trial's factual resolutions and may not substitute our judgment for the trial court's judgment in those matters. See id. at 839-40. The legal and factual sufficiency of the evidence are not independent grounds of error in an abuse-of-discretion standard case, though they are relevant factors in assessing whether the trial court abused its discretion. See Miles, 229 S.W.3d at 388-89.

    B. Analysis

    In his first issue, Mbonu contends that the evidence is legally and factually insufficient to support the child-support payment ordered because he "has not been employed since 2002," which required that the trial court apply the federal minimum wage to a 40-hour week in calculating Mbonu's payment. See In re Moss, 887 S.W.2d 186, 188 (Tex. App.--Texarkana 1994, no writ) (citing statutory presumption of former Tex. Fam. Code Ann. § 14.053(k) (current version at Tex. Fam. Code Ann § 154.068 (Vernon 2002)). Mbonu's second issue purports to challenge the trial court's method of calculating the support ordered, but has provided neither record references nor citations to authority in support of this issue and has thus waived any complaint. See Ryan v. Abdel-Salam, 39 S.W.3d 332, 336 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). We have no duty to conduct an independent review of the existing record and applicable law to address this issue. See id. In his third issue, Mbonu challenges the order of support on the grounds that the record does not show that he is financially able to pay the amount ordered.

    Mbonu's issues raise no error that is apparent on the face of the record, as required for him prevail. See Lynda's Boutique, 134 S.W.3d at 848. The record in this restricted appeal does not contain either a reporter's record or an audiotape recording of the hearing that resulted in the challenged order. As noted in footnote 6, however, Mbonu has not challenged the omission on appeal.

    Restricted-appeal analysis permits us to address attacks on the legal and factual sufficiency of the evidence, Norman Commc'ns, 955 S.W.2d at 270, as factors relevant to the trial court's exercise of its discretion. Miles, 229 S.W.3d at 388-89. Unless the appealing party has requested a partial reporter's record, however, as now authorized by Tex. R. App. P. 34.6(c)(4), settled law recognizes the impossibility of establishing on appeal that the evidence is either legally or factually insufficient without a complete reporter's record. See Schafer v. Conner, 813 S.W.2d 154, 155 (Tex. 1991); Englander Co. v. Kennedy, 428 S.W.2d 806, 807 (Tex. 1968); see also Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (noting that appealing party "cannot prevail" in challenge to sufficiency of evidence without sufficient record). Furthermore, we are entitled to presume that any missing reporter's record supports the trial court's judgment. See Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990); Nicholson, 226 S.W.3d at 583. We may presume, therefore, that the Attorney General offered evidence and proved the case made on Ezeh's behalf. See Stoner, 578 S.W.2d at 682.

    Because the face of the record of this restricted appeal contains no transcription of the hearing that resulted in the challenged order, these settled principles compel that we also presume that legally and factually sufficient evidence supports that order. See Schafer, 813 S.W.2d at 155; Christiansen, 782 S.W.2d at 843; Englander Co., 428 S.W.2d at 806; Nicholson, 226 S.W.3d at 583. Accordingly, we need not consider Mbonu's sufficiency challenges as factors that affected the trial court's exercise of its discretion. See Miles, 229 S.W.3d at 388-89.

    With the exception of the second issue, which he has waived, Mbonu bases his challenges to the trial court's exercise of its discretion on the fact-based contentions that he has been unemployed since 2002 and is thus unable to pay the support obligations imposed by the trial court's order. As Mbonu recognizes, the trial court's order implies findings by the trial court that reject these contentions. Though the sworn "General Testimony" by Ezeh stated few specifics regarding Mbonu's financial ability to pay, the face of the record does not disclose what additional evidence the trial court may have relied on in calculating Mbonu's financial responsibility to contribute to his daughters' support. As stated above, we must presume that any missing evidence supports the ruling. See Schafer, 813 S.W.2d at 155; Christiansen, 782 S.W.2d at 843; Englander Co., 428 S.W.2d at 806; Nicholson, 226 S.W.3d at 583. Moreover, in accordance with the standards that control when a discretionary ruling results from the trial court's having impliedly found that Mbonu is financially able to pay, we must defer to the trial court's resolutions and may not substitute our own judgment for that finding. See Walker, 827 S.W.2d at 839-40.   

    We overrule Mbonu's three issues.

    Conclusion

    We affirm the judgment of the trial court.







    Sherry Radack

    Chief Justice



    Panel consists of Chief Justice Radack and Justices Jennings and Bland.

    1. See Sharif v. Par Tech, Inc., 135 S.W.3d 869, 872 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (stating that post-answer default judgment occurs when party files timely answer, but does not appear at trial).

    2. This proceeding is properly classified as a suit affecting the parent-child relationship (SAPCR) under the Family Code, because the Attorney General's petition involves a request for support for the children born of the marriage between Mbonu and Ezeh. See Tex. Fam. Code Ann. § 101.032(a) (Vernon 2002). The UIFSA,

    Tex. Fam. Code Ann. §§ 159.001-159.902 (Vernon 2002 & Supp. 2007-08), is part of subtitle B of Title 5 of the Family Code, which governs SAPCRs. See Tex. Fam. Code Ann. §§ 151.001-162.601 (Vernon 2002 & Supp. 2007).

    3. Mbonu's paternity is undisputed.

    4. The record reflects that on June 22, 2004, Ezeh filed with the Florida divorce court a verified motion to compel Mbonu to file a financial affidavit, but the record does not show that the Florida court ruled on the motion. Ezeh began living in New Jersey on August 23, 2004.

    5.

    This testimony included information regarding Ezeh, Mbonu, and their two daughters, including the monthly cost of their health insurance. Ezeh's personal information included her monthly nurse's salary, her overtime pay, and her monthly expenses. Concerning Mbonu, Ezeh's testimony identified him by name, address, telephone number, date of birth, and social security number, and stated that he was a chemist with a college degree. Ezeh confirmed that she did not know Mbonu's current employer's name or address, but estimated his monthly salary at $4,000. Ezeh could not confirm Mbonu's current marital status or whether he was financially responsible for other dependents.

    6. The Family Code requires that a record be made in SAPCR proceedings "unless waived by the parties with the consent of the court." See Tex. Fam. Code Ann. § 105.003(c) (Vernon 2002). Accordingly, lack of a record can be challenged as reversible error on the face of the record in a restricted appeal. See, e.g., Stubbs v. Stubbs, 685 S.W.2d 643, 645 (Tex. 1985); Walker v. Stefanic, 898 S.W.2d 347, 349 (Tex. App.--San Antonio 1995, no writ) (holding same). When urged as error on appeal, lack of a reporter's record "is not harmless," because it precludes review of the sufficiency of the evidence to support the judgment. Sharif, 135 S.W.3d at 873 We distinguish the preceding cases, however, because, in every instance, the appealing parties challenged the lack of a reporter's record as reversible error. In this case, Mbonu does not assert that lack of a reporter's record is error. Likewise, Mbonu does not argue that lack of a reporter's record prevents him from presenting his case to this Court. See Tex. R. App. P. 44.1(a)(2). We note, in addition, that Mbonu did not request either the clerk's or a reporter's record after perfecting his restricted appeal, and his untimely postjudgment motions do not include complaints regarding the lack of a record. This Court may not resolve an appeal on unassigned error. Walling v. Metcalfe, 863 S.W.2d 56, 58 (Tex. 1993).

    7. Section 159.401(c) states in part, "On finding, after notice and an opportunity to be heard, that an obligor owes a duty of support, the tribunal shall issue a support order directed to the obligor . . . ."

    Tex. Fam. Code Ann. § 159.401(c).

    8. See Tex. R. Civ. P. 239a (Notice of Default Judgment).