Minimum Wage and Setting Child Support

In the Interest of Martin, 881 S.W.2d 531

Court of Appeals of Texas, Sixth District, Texarkana

May 10, 1994, Submitted ; July 26, 1994, Decided ; July 26, 1994, Filed

No. 06-93-00093-CV

Reporter: 881 S.W.2d 531 

IN THE INTEREST OF JOSHUA NEAL MARTIN, A MINOR CHILD

Prior History: 

 On Appeal from the 202nd Judicial District Court. Bowie County, Texas. Trial Court No. D-202-CS-910083.

Disposition: 

For the reasons stated, the judgment of the district court is affirmed. 

Core Terms

trial court, paternity, child support, cross-examination, sexual, paternity test, minimum wage, conceived, notice, male

Case Summary

Procedural Posture

Appellant ex-boyfriend challenged the judgment of the 202nd Judicial District Court of Bowie County, Texas that declared him the father of his ex-girlfriend's son and ordered him to pay child support.

Overview

Appellant ex-boyfriend and his ex-girlfriend had a sexual relationship and she gave birth to a son after the relationship ended. The state brought a paternity suit against appellant. The lower court found that appellant was the biological father of the child and ordered him to pay child support. Appellant sought review of the decision. The court affirmed the decision of the lower court because evidence of the ex-girlfriend's sexual relations was properly limited to the time of conception. The court found that the letter the mother had written, which raised a question as to when the couple broke up, was more prejudicial than its probative value and, therefore, it was not error to exclude it. The court held that the paternity test was admissible because it showed a possibility that appellant was the father. The court also held that the jury instruction to disregard comments by the trial judge was sufficient to cure any negative effect it may have had. The court found that evidence of appellant's prior employment coupled with his ability to be employed was sufficient to support the child support order.

Outcome

The court affirmed the order of the lower court that declared appellant father the biological father of his ex-girlfriend's son and ordered him to pay child support because the paternity test showed the possibility that appellant was the father and there was sufficient evidence to justify the child support order.

LexisNexis® HeadnotesHide

Evidence > Judicial Notice > General Overview
Evidence > Judicial Notice > Adjudicative Facts > General Overview

HN1 Tex. R. Civ. Evid. 201 provides in part: (a) Scope of Rule. This rule governs only judicial notice of adjudicative facts.  Shepardize - Narrow by this Headnote

Civil Procedure > ... > Jury Trials > Jury Instructions > General Overview
Civil Procedure > Special Proceedings > Eminent Domain Proceedings > Jury Trials
Evidence > Judicial Notice > General Overview
Evidence > Judicial Notice > Adjudicative Facts > Facts Generally Known
Evidence > Judicial Notice > Adjudicative Facts > Verifiable Facts

HN2 Tex. R. Civ. Evid. 201 provides in part: (b) Kinds of Facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) When Discretionary. A court may take judicial notice, whether requested or not. (d) When Mandatory. A court shall take judicial notice if requested by a party and supplied with the necessary information. (e) Opportunity to Be Heard. A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken. (f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding. (g) Instructing Jury. The court shall instruct the jury to accept as conclusive any fact judicially noticed.  Shepardize - Narrow by this Headnote

Evidence > ... > Testimony > Examination > General Overview

HN3 Although cross-examination is a valuable right and an effective tool for producing evidence, it does not extend so far as to include irrelevant evidence.  Shepardize - Narrow by this Headnote

Family Law > Paternity & Surrogacy > General Overview
Family Law > Paternity & Surrogacy > Proof of Paternity > General Overview
Family Law > ... > Proof of Paternity > Types of Evidence > General Overview

HN4 See Tex. Fam. Code Ann. § 13.06(c).  Shepardize - Narrow by this Headnote

Civil Procedure > ... > Jury Trials > Jury Instructions > General Overview
Criminal Law & Procedure > Trials > Burdens of Proof > Prosecution
Evidence > Burdens of Proof > Allocation
Evidence > Burdens of Proof > Burden Shifting
Family Law > Paternity & Surrogacy > General Overview

HN5 The first sentence of Tex. Fam. Code Ann. § 13.06(c), states that, if the paternity test shows the possibility of paternity, the court may admit the evidence. The question of whether a particular percentage of the population was excluded is used to determine whether the test data constitutes a prima facie showing, thus shifting the burden of proof to the defendant.  Shepardize- Narrow by this Headnote

Civil Procedure > Appeals > Standards of Review > Abuse of Discretion
Family Law > Child Support > General Overview
Family Law > Child Support > Support Obligations > General Overview
Family Law > ... > Computation of Child Support > Imputed Income > Voluntary Unemployment

HN6 In reviewing the legal sufficiency of the evidence, an appellate court examines the record for any probative evidence to support the finding, ignoring all contrary evidence. If there is some evidence in support of the finding, it will be upheld. If findings of fact are neither timely requested nor filed, it is implied that the trial court made all the findings necessary to support its judgment.  Shepardize - Narrow by this Headnote

Family Law > Child Support > Support Obligations > General Overview
Labor & Employment Law > Wage & Hour Laws > Scope & Definitions > Minimum Wage

HN7 In the absence of sufficient evidence to determine the wages and salary income of the obligor, a trial court applies the presumption that they have wages or salary equal to the prevailing federal minimum wage for a forty-hour week. Tex. Fam. Code. Ann. § 14.053(k) (1994).  Shepardize - Narrow by this Headnote

Counsel: Hon. Don Cooksey, Attorney at Law, Texarkana, TX.

Hon. Leslie L. McCollom, Assistant Attorney General, Office of the Attorney General, Austin, TX.

Hon. John C. Hawkins, Jr., Child Support Contract Attorney, Child Support Enforcement, Texarkana, TX.

Judges: Before Cornelius, C.J., Bleil and Grant, JJ.

Opinion by: WILLIAM J. CORNELIUS

Opinion

 [533] OPINION

Opinion by Chief Justice Cornelius

Gary Burleson appeals from a district court judgment declaring him the father of a son born to Mary Martin and ordering him to pay child support.

Burleson contends that the district court improperly limited cross-examination, that a paternity test should not have been admitted in evidence, that the trial judge improperly commented on the evidence, and that the child support is supported by legally insufficient evidence. We overrule these contentions and affirm the judgment.

The evidence shows that Burleson and Martin had a sexual relationship during and after Burleson's junior year in high school. There is a dispute as to when the relationship ended. Martin's child was born on May 22, 1985.

The Attorney General brought a paternity suit against Burleson. The jury found that Burleson was the biological father of the child, and the trial court ordered Burleson to pay current and retroactive child support and one half of the child's health insurance costs.

Burleson first contends that the trial court improperly limited his right to cross-examine Martin about her sexual conduct. The court limited questions to activity that occurred within a period of forty-five days before and after the estimated date that the child was conceived. Burleson argues that this was improper because it denied him the right to full and effective cross-examination of a party to the suit.

From the evidence, the court concluded that the child was full term when born. From that conclusion, he estimated that a period of forty-five days before and after that time constituted the only time during which the child could have been conceived, and limited evidence of Martin's sexual conduct to that ninety-day time span. That determination, on which the other evidentiary decisions were based, was in the nature of judicial notice, although the court apparently did not make the determination pursuant to TEX. R. CIV. EVID. 201. 1 Realizing that the question of when conception could possibly have taken place would be a consideration in the trial, the trial court discussed the matter with a physician before the trial began and based his determination on that discussion. Had the trial judge indicated he was taking judicial notice, then Burleson could have had a hearing on the propriety of taking judicial notice and the matter noticed. What the court did seems closer to fact gathering than to taking judicial notice. In any event, Burleson did not object to the court's consulting the physician, did not request a hearing, and did not show that he was harmed in any way. Thus, nothing has been preserved for review on that point. TEX. R. APP. P. 52.

Burleson does, however, contend that his substantive right to establish a defense through cross-examination was violated by  [534]  the ruling limiting his examination to the ninety-day time period. See CNA Ins. Co. v. Scheffey, 828 S.W.2d 785 (Tex. App.--Texarkana 1992, writ denied).HN3 Although cross-examination is a valuable right and an effective tool for producing evidence, it does not extend so far as to include irrelevant evidence. Harrison v. Texas Employers Ins. Ass'n,747 S.W.2d 494, 498 (Tex. App.--Beaumont 1988, writ denied); Mortenson v. Trammell, 604 S.W.2d 269, 277 (Tex. Civ. App.--Corpus Christi 1980, writ ref'd n.r.e.); see Satterwhite v. State,499 S.W.2d 314 (Tex. Crim. App. 1973). The only relevant issue in this case is whether Burleson is the father of the child. The mother's sexual activity outside the time period during which the child could have been conceived is not relevant to a determination of paternity. TEX. R. CIV. EVID. 401.

Burleson's counsel contended at oral argument that cross-examination about Martin's entire sexual and marital history would have been relevant because it would have revealed to the jury her alleged instability and lack of credibility. This argument, however, is not presented as a point of error, nor is it briefed in the points raised, so we will not address it. TEX. R. APP. P. 74; In re R.L.H., 771 S.W.2d 697 (Tex. App.--Austin 1989, writ denied).

Burleson next contends that the court erred by refusing to allow in evidence an allegedly inconsistent statement made by Martin. The statement is in the form of a letter written by Martin to Burleson on June 11, 1984, while they were still dating.

The trial court determined that the letter in its entirety was not admissible, as reflected in a bill of exception that was created on the second day of trial and in a discussion during a later attempt to introduce the letter. The court refused to admit the complete letter because it was more prejudicial than probative. TEX. R. CIV. EVID. 403. Burleson then offered an edited version of the letter in which two offensive words in paragraph seven were excised. The court also refused to admit that version. Burleson also offered to introduce the letter without paragraph seven, but was not allowed to do so.

Martin testified that she and Burleson dated from February 1983 until November 1984. Burlesoncontends that the letter amounted to an inconsistent statement because in it Martin said that they "broke up" in June 1984, which would have been outside the conception time frame established by the court--July 7, 1984 to October 8, 1984.

Burleson contends that Martin's statement in the letter that she would remove her things from his car, when considered with her testimony that she removed her things from his truck when they stopped dating, proves that their relationship ended much sooner than Martin contended at trial. Such a conclusion, however, is based on a misreading of the letter. It does not indicate that she removed her items. The paragraph to which counsel refers states: "I'll get all of my stuff out of your car tomorrow after they go to Charlie and Barbara's games. O.K.?" Martin then goes on to reiterate her feelings for Burleson and expresses her desire that they not end the relationship. Although this information would be marginally relevant to show the context of their relationship when the letter was written, it does not contradict Martin's testimony that the relationship ended several months later. It only expresses fear that Burleson's parents are going to force an end to their relationship. As the letter was not an inconsistent statement, and its prejudice outweighed any probative value, it was not error to exclude it.

Counsel also offered the letter as support for his argument that Martin had been having sexual relations with her stepfather during the time that the child was conceived. As the letter was written a month before the beginning of the conception range established by the court, even if the letter constituted an admission that Martin was having sexual intercourse with her stepfather, it does not show that she was doing so during the critical time period.

As to the more difficult question of whether the trial court erred by refusing to admit the letter with the offensive paragraph removed, we find that the letter's relevance is questionable. Thus, under an abuse of discretion review, we will not disturb the trial court's ruling in this matter. Tracy v. Annie's Attic, Inc., 840 S.W.2d 527, 531 (Tex. App.--Tyler  [535]  1992, writ denied). Even if the trial court did err by refusing to admit the evidence, to obtain reversal of a judgment based on such an error Burleson must show that the error was calculated to cause and probably did cause the rendition of an improper judgment. TEX. R. APP. P. 81(b)(1); Boothe v. Hausler, 766 S.W.2d 788, 789 (Tex. 1989). This evidence is not of a character that would cause the rendition of an improper verdict.

Burleson next contends that the trial court should not have admitted the paternity test into evidence because the proof did not establish that the test excluded 95 % of the male population as required by TEX. FAM. CODE ANN. §§ 13.02, 2 13.04, 3 13.06. 4 HN4 The only one of these statutes that involves the admission of evidence is Section 13.06(c). It states:

If the paternity tests show the possibility of the alleged father's paternity, the court may admit this evidence if offered at the trial. If the paternity tests show the possibility of the alleged father's paternity and that at least 95 percent of the male population is excluded from the possibility of being the father, then evidence of these facts constitutes a prima facie showing of the alleged father's paternity, and the party opposing the establishment of the alleged father's paternity has the burden of proving that the alleged father is not the father of the child.

The expert's written report stated that the tests given would exclude 98.22% of the male population. 5 The probability of paternity, according to the statistical determinations, was 99.69%. All that was required to make the test admissible was that it show the possibility of Burleson's paternity. The test does so; consequently, the court properly admitted it into evidence. TEX. FAM. CODE ANN. § 13.06(c).

Burleson also argues that the underlying basis for the admission of the test was inadequately proven because the statute requires that at least 95 % of the male population is excluded from being the biological father. He argues that the basis shown by the testimony -- that the figures determined by comparison to a random testing of Caucasian males drawn from a nonscientifically selected sample -- was inadequate to comply with the statutory requirement. We need not address this point, because the test is admissible if it shows the possibility of paternity. HN5 The first sentence of Section 13.06(c), as it existed in 1989, states that, if the paternity test shows the possibility of paternity, the court may admit the evidence. The question of whether a particular percentage of the population was excluded is used to determine whether the test data constitute a prima facie showing, thus shifting the burden of proof to the defendant. In this case, the burden of proof was not shifted. The State retained the burden of proof throughout the trial, as reflected by the jury charge. No error is shown.

Burleson also contends that the trial court erred by commenting on the evidence and improperlycharging the jury. The challenged statement by the trial judge was made during defense counsel's jury argument. Counsel was discussing the relation of menstruation to ovulation dates and suggested that basic biology from high school taught that a person cannot conceive during a menstrual cycle. He suggested that Martin had testified that she was menstruating at the time that she had also testified that conception took place. In the midst of this discussion, the trial court commented as follows:

THE COURT: I think the testimony was that she got off the period August  [536] seventeenth. Is that what you're talking about?

MR. COOKSEY: Well, the jury will remember.

THE COURT: I wrote it down.

MR. COOKSEY: I would object to the Court commenting on the evidence. The jury will remember and again, I would ask the Court to instruct the jury to disregard what the Court has said.

THE COURT: Alright, folks, you will disregard any comments by the Court on the evidence. It's up to the jury to determine what the facts are. Proceed.

The trial court's comment occurred after Burleson's counsel had ignored the court's order sustaining an objection to this line of argument as being outside the evidence.

The trial court did misstate the evidence, but when defense counsel objected, the court withdrew his statement and instructed the jury to disregard any comment he made and to determine itself what the facts were. We believe the jury instruction cured any possible harm caused by the court's comments. Compare: Home Indem. Co. v. Draper, 504 S.W.2d 570 (Tex. Civ. App.--Houston [1st Dist.] 1973, writ ref'd n.r.e.); Brazos River Auth. v. Berry, 457 S.W.2d 79 (Tex. Civ. App.--Tyler 1970, writ ref'd n.r.e.); see also Crowley v. Babolcsay, 611 S.W.2d 492 (Tex. Civ. App.--Austin 1981, writ ref'd n.r.e.); 4 McDONALD'S TEXAS CIVIL PRACTICE § 21:39 (rev. 1992).

Burleson next contends that the trial court erred by awarding child support in an amount not supported by the record. He specifically argues that the court should not have ordered him to pay one half of the child's health insurance costs when there was no evidence to support such an order. Burleson bases his argument on the fact that, at the time of the hearing at which child support was determined, he was unemployed and had not worked for two weeks because his previous place of employment had closed. HN6 

In reviewing the legal sufficiency of the evidence, we apply the review standard of Garza v. Alviar,395 S.W.2d 821, 823 (Tex. 1965). Thus, we examine the record for any probative evidence to support the finding, ignoring all contrary evidence. If there is some evidence in support of the finding, it will be upheld. In this case, findings of fact were neither timely requested nor filed. In such a case, it is implied that the trial court made all the findings necessary to support its judgment. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). The order setting child support is not reversible unless Burleson has shown a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d at 109.

There is no documentary evidence about Burleson's income, either past or present. He testified that he had been employed at various wages above minimum wage as a muffler mechanic, but that his last employer bad closed his business after retiring and his previous employers had gone bankrupt. He stated that he was looking for work and that he would accept employment if he could find anything paying minimum wage. He also testified that he had payments on a mobile home that needed to be made, although he had previously said that he had no payments on the mobile home. He also testified that he had sold a truck that was paid for in order to buy a less expensive truck for which he was making payments.

The trial court set child support payments at the proper percentage of minimum wage income. There is evidence that Burleson had been employed, that he was able to work, and that he expected to obtain work. There is conflicting evidence about the extent of his liabilities. HN7 In the absence of sufficient evidence to determine the wages and salary income of the obligor, the trial court applies the presumption that they have wages or salary equal to the prevailing federal minimum wage for a forty-hour week. TEX. FAM. CODE. ANN. § 14.053(k) (Vernon Supp. 1994). Proof that Burleson was temporarily unemployed, when set against his testimony that he had been gainfully employed for several years and had prospects for future work, does not create a situation in which no obligation may be imposed. Based on his testimony about his previous earning ability and income, and in the absence of any evidence that he is unemployable, there is at least some evidence to support the trial court's  [537]  setting of child support based on the federal minimum wage.

Burleson's argument that there was no evidence to support the imposition of an additional payment of $ 32.50 a month for one half of the health insurance costs of the child meets the same evidentiary standard. Based on the evidence of his past income and his contradictory testimony about his obligations on his home and vehicle, there is at least some evidence that would support a finding by the trial court that Burleson was able to pay an amount in excess of the guidelines, for a total of $ 120.00 in child support and an additional $ 32.50 per month for health insurance. 6

For the reasons stated, the judgment of the district court is affirmed.

William J. Cornelius

Chief Justice

Date Submitted: May 10, 1994

Date Decided: July 26, 1994