Danica Laura Alcaraz v. Jay Anthony Alcaraz ( 2010 )

i i i i i i
MEMORANDUM OPINION
No. 04-09-00334-CV
Danica L. ALCARAZ,
Appellant
v.
Jay A. ALCARAZ,
Appellee
From the 45th Judicial District Court, Bexar County, Texas
Trial Court No. 2006-CI-10611
Honorable Andy Mireles, Judge Presiding
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Sandee Bryan Marion, Justice
Steven C. Hilbig, Justice
Delivered and Filed: April 7, 2010
AFFIRMED
This is an appeal from an order on pleadings for enforcement and modification in a family
law case. Both parties are appearing pro se on appeal. We affirm the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Danica L. Alcarez and Jay A. Alcarez, parents of A.G.A. and G.R.A., were married in 1992
and divorced in 2006. Danica and Jay were appointed joint managing conservators of the children.
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Danica was appointed primary conservator, and Jay was ordered to pay $600 per month in child
support.
In October 2008, Danica filed a document entitled, “Motion for Enforcement of Possession
or Access and Motion for Enforcement of Child Support Order and Order to Appear.” Jay responded
by filing a document entitled,“Respondent’s Original Answer to Petition for Enforcement and
Counter-Petition to Modify in Suit Affecting Parent-Child Relationship.” In his petition, Jay asked
that the children be allowed to reside primarily with him. Jay attached statements signed by the
children wherein the children asked the trial court to allow them to live with their father. Jay also
asked that Danica be ordered to pay child support.
A hearing on the parties’ pleadings was held on June 1, 2009. Jay appeared in person and by
counsel. Danica, although previously represented by counsel, appeared pro se. After hearing
evidence and arguments, the trial court denied Danica’s motion for enforcement and granted Jay’s
petition to modify. The trial judge signed a modification order that allowed the parties to remain joint
managing conservators, but appointed Jay as primary conservator. Jay’s previous order to pay child
support was cancelled, and Danica was ordered to begin paying child support. After Danica pointed
out that the modification order contained a clerical error as to the child support amount, the trial
judge signed a nunc pro tunc order reflecting the proper child support amount of 25% of Danica’s
net monthly income in accordance with the child support guidelines.
Danica appeals the trial court’s order only as it pertains to the issue of child support. Danica
does not contend that she should not be ordered to pay child support, but rather takes issue with the
amount she is ordered to pay.
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DISCUSSION
In one issue on appeal, Danica contends,
there was not an opportunity to present arguments during either the original hearing
or the hearing to correct the clerical mistake that severe financial hardship was
imposed by the new Order and that the financial hardship negatively impacts the
children of this suit.1
We construe Danica’s issue on appeal as a complaint that, because she was denied the
opportunity to be heard during argument at the trial court, she was denied due process. See Searcy
v. State Bar of Texas, 604 S.W.2d 256, 260 (Tex. Civ. App.—San Antonio 1980, writ ref’d n.r.e.)
(citing Grannis v. Ordean, 234 U.S. 385, 394 (1914)) (stating a fundamental requirement of due
process is the opportunity to be heard). We will review the reporter’s record from the June 1, 2009,
hearing to determine whether Danica was denied her right to be heard.
There is no question Danica, although not represented by counsel, had notice of and appeared
at the June 1, 2009, hearing. The trial court began the hearing by confirming that the issues before
the trial court were a change in primary conservatorship, child support, and visitation. Jay then
testified on direct examination that he wanted to be named primary conservator and that the two
children had filed statements with the court indicating they wanted to live with him. Jay further
testified about the living conditions at each of the parties’ homes, including the fact that the children
1
… The record on appeal consists of the clerk’s record and the reporter’s record of the June 1, 2009,
hearing. Although Danica complains that she was prevented from presenting arguments during the nunc pro tunc
hearing, she has not brought forth a reporter’s record from that hearing. W ithout a reporter’s record, we are left with
nothing to review. Thus, any complaints Danica has relating to the nunc pro tunc hearing are waived, and we are
limited to a review of the June 1, 2009, hearing. See Cantu v. Guerra & Moore, Ltd. LLP, No. 04-08-00786-CV,
2009 W L 3460321, at *7 (Tex. App.— San Antonio October 28, 2009, no pet. h.) (stating that by failing to bring
forth a sufficient record to show reversible error, i.e., a transcript of the recusal hearing, appellant waived any right
to complain about the trial court’s denial of his recusal motion).
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had found illegal drugs in Danica’s home. And, Jay testified that he was asking for Danica to pay
child support. Danica was then allowed to cross-examine Jay. Cross-examination focused on the
living conditions of the parties’ homes and the schools the children attended.
Danica then testified on her own behalf indicating she wanted the children to live with her.
She testified that the drugs the children had found in her home belonged to a man who lived with
her; however, he moved out as soon as she found out about the drugs. On cross-examination, Danica
testified generally about the living conditions in her home and about the children’s education.
In response to questions from the trial judge, Danica testified that while her children wanted
a close bond with their father, her household was more suited to accommodating their needs. The
trial judge then reassured Danica that he would be making his decision based not on whether she was
an unfit mother, but rather on the children’s best interest and their request to live with their father.
At the end of Danica’s testimony, the trial judge asked Danica if she had anything else to tell
him. She responded by asking if the court would be considering her motion for enforcement, to
which the trial judge answered, “Yes.” The court then asked if the parties would like to confer and
try to reach a compromise. Both sides declined, and the court then recessed for ten minutes.
After the recess, the trial judge read his order into the record. The trial judge granted Jay’s
petition to modify; appointed the parties joint managing conservators, with Jay designated primary
conservator; ordered Danica to pay 25% of her net monthly income in child support in accordance
with the child support guidelines; and set visitation according to the standard possession order. The
trial judge also denied Danica’s motion to enforce. Danica then asked the trial judge to lower the
child support to $600 per month, the amount Jay had previously been ordered to pay. The trial judge
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responded, “I asked that question before I left the [b]ench to see if you wanted to discuss any matter
that’s in front of the Court, you chose not to.”
It appears from a reading of the reporter’s record that Danica was not deprived of her right
to be heard regarding the amount of child support she was ordered to pay. Jay included a request for
child support in his petition to modify, the trial judge confirmed at the beginning of the hearing that
child support was an issue to be considered, and Jay testified that he was seeking child support from
Danica. Danica was given the opportunity to cross-examine Jay and to testify on her own behalf. The
trial judge wrapped up testimony by giving Danica the opportunity to relate to him anything else she
had to say. Although the main focus of the testimony at the hearing concerned where the children
would reside, it was apparent that child support and visitation were also issues to be determined by
the trial judge. We cannot say, therefore, that Danica was denied an opportunity to be heard on the
child support issue—she simply chose not to.
We note that, in her brief, Danica not only argues that she was deprived of an opportunity
to be heard on the child support issue, but she also presents arguments and exhibits to prove to this
court that she should be required to pay less child support. We are, however, unable to consider
evidence or arguments that were not before the trial court. See Canton-Carter v. Baylor College of
Medicine, 271 S.W.3d 928, 932 n.2 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (stating
appellate court could not consider documents attached to an appellate brief that were not part of the
appellate record); Castano v. San Felipe Agric. Mfg. and Irrig. Co., 147 S.W.3d 444, 452-53 (Tex.
App.—San Antonio 2004, no pet.) (stating appellate court must hear and determine a case on the
record as filed and may not consider documents attached as exhibits to briefs).
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Accordingly, we affirm the trial court’s order.
Karen Angelini, Justice
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