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Koehne v. Koehne

Court of Appeals of Texas, First District

June 1, 2017

DALE PATRICK KOEHNE, Appellant
v.
KALEIGH MICHELLE KOEHNE, Appellee

         On Appeal from County Court at Law Austin County, Texas Trial Court Cause No. 2016L-6515

          Panel consists of Justices Higley, Bland, and Brown.

          ORDER

          PER CURIAM

         Dale Patrick Koehne appeals from an order holding him in contempt and an order revoking suspension of commitment to county jail. Koehne's filed his notice of appeal on December 27, 2016. On December 28, 2016, Koehne filed a Statement of Inability to Afford Payment of Court Costs.

         Koehne subsequently filed requests for the reporter's records of hearings held on August 26, 2016, December 16, 2016, January 17, 2017, and January 23, 2017. In requests for hearing records, Koehne attached his Statement of Inability as well as Statements of Indigence.

         The court reporter filed a contest and an amended contest. Koehne filed an answer to the contest and to the amended contest, claiming the contests were untimely filed. A hearing was held on January 17, 2017, and the trial court signed an order the same day sustaining the contest. On January 23, 2017, the trial court signed an amended order, finding that Koehne had already paid for the reporter's record for the August 26, 2016 hearing. Another hearing was held on February 6, 2017, but the record contains no further order on Koehne's ability to pay.

         The rules regarding indigence were revised effective September 1, 2016. See Tex. R. Civ. P. 145; Tex.R.App.P. 20.1. Under the revised rules, an appellant no longer files an affidavit of indigence, but instead files a Statement of Inability to Afford Payment of Court Costs. See Tex. R. Civ. P. 145(a). A court reporter may contest the Statement by filing a motion, but there is no deadline for the filing of the contest. See Tex. R. Civ. P. 145(f)(1).

         A party who files a statement of inability to pay court costs may be required to prove his inability at an oral evidentiary hearing, but the party may not be required to pay court costs unless the trial court holds an evidentiary hearing, with proper notice given to the declarant. See Tex. R. Civ. P. 145(f)(5). If the trial court determines that the declarant can afford to pay court costs, the trial court must issue an order containing detailed findings. See Tex. R. Civ. P. 145(f)(6). Absent a challenge, a trial court order that the declarant can afford to pay court costs also controls the costs on appeal unless the declarant files a motion in the appellate court alleging a material change in circumstances. See Tex. R. App. P. 20.1(b)(3).

         The declarant may challenge a ruling that the declarant can afford to pay court costs by timely filing a motion in the appellate court. See Tex. R. Civ. P. 145(g)(1). Once an appellant appeals from a trial court's order finding he or she can afford to pay costs, the trial court clerk and court reporter must prepare at no charge a record of all proceedings regarding the declarant's claim of indigence. Tex.R.Civ.P. 145(g)(3).

         Koehne filed a timely notice of appeal from the trial court's order, which we construe to be a motion challenging the order under Rule 145(g)(1). Because the trial court's order contained no findings, we issued an order on March 7, 2017, requesting the preparation of detailed findings as required by Rule 145(f)(6). A supplemental clerk's record was filed on April 5, 2017, containing the trial court's findings.

         The following is a summary of the trial court's findings:

1. Koehne had paid his attorney's fees of more than $12, 000;
2. Koehne's attorney sent the court reporter a check for $930 in payment for the August 16, 2016 hearing record;
3. At the time of the August 16, 2016 hearing, Koehne was employed, and was earning approximately $2, 000.00 per ...

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