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In re A.A.T.

Court of Appeals of Texas, Eighth District, El Paso

August 28, 2019

IN THE INTEREST OF A.A.T., A MINOR CHILD

          Appeal from 383rd District Court of El Paso County, Texas (TC # 2005AG8332)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.

          OPINION

          ANN CRAWFORD McCLURE, CHIEF JUSTICE

         Andres Tellez and Cynthia Rodriguez are the parents of A.A.T., a minor child. Tellez filed a motion to modify a prior child support order, arguing that his circumstances had materially and substantially changed due to a disability he suffered since the rendition of the prior order. The trial court denied his motion and awarded attorney's fees in favor of Rodriguez. On appeal, Rodriguez contends that the trial court abused its discretion in denying his motion and in awarding attorney's fees to Rodriguez.[1] Because we agree that the trial court abused its discretion in denying the motion, we reverse and remand to the trial court for further proceedings.

         PROCEDURAL AND FACTUAL BACKGROUND

         On February 9, 2006, the trial court entered an agreed order in a suit affecting the parent child relationship (SAPCR), setting Tellez's monthly child support obligation for A.A.T. at $128.00, and his monthly medical support obligation at $25.00.[2] Subsequently, on August 11, 2012, the trial court entered an agreed order enforcing and modifying Tellez's support obligation, finding that Tellez was in arrears in both his child support and medical support obligations. The trial court ordered Tellez to make payments on the arrearages, and modified the amount of child support that Tellez was obligated to pay.[3] In that order, the trial court expressly found that Tellez's gross monthly resources were $1, 516.66, and that his net monthly resources were $1, 303.56. As Tellez had one other minor child at the time for whom he had a duty of support, the trial court set Tellez's child support obligation at 17.50% of his net resources in accordance with the statutory guidelines, and ordered him to pay child support of $228.00 a month, and medical support of $57.00 a month. See Tex.Fam.Code Ann. § 154.129 (setting forth statutory guidelines in multi-family cases).

         As discussed in more detail below, shortly thereafter, on August 24, 2012, Tellez suffered a stroke, and the Social Security Administration later determined that Tellez was disabled and unable to work, at which time he began receiving Supplemental Security Income (SSI) benefits. On November 1, 2013, Tellez filed a motion to modify the prior child support order, contending that his circumstances had materially and substantially changed since the rendition date of that order. Rodriguez filed an answer to the motion, generally denying Tellez's allegations.

         On October 1, 2014, an associate judge found that material and substantial changes existed, and recommended modifying the prior child support order to reduce Tellez's child support obligation to zero. In an order dated October 31, 2014, the trial court adopted the associate judge's recommendation, reducing his child support obligations to zero finding that Tellez's allegations were true and that the requested modification was in the best interest of the child. [4]

         On November 21, 2014, Rodriguez filed a motion for new trial, asserting that the trial court abused its discretion in reducing Tellez's support obligations to zero, and that she had "newly discovered evidence" to support her motion. The newly discovered evidence, which Rodriguez attached to her motion, was a statement from the Social Security Administration, indicating that Tellez was receiving SSI benefits of $480.67 a month due to a disability, but that the program from which he was receiving benefits would not allow his dependent minor children to receive any benefits. Following a hearing in front of an associate judge, Rodriguez's motion for new trial was denied, but Rodriguez thereafter filed a request for a "de novo hearing."[5] In her request, Rodriguez acknowledged that Tellez was receiving SSI benefits, she alleged that Tellez was "able to work," and that he "had been seen working." On February 12, 2015, the trial court issued an order granting Rodriguez's motion for new trial, and set a hearing on Tellez's motion to modify.

         The Hearing

         After several resets, the trial court held the hearing on Tellez's motion on February 24, 2017, at which time the subject child was 13 years old. At the hearing, Tellez testified that when the prior child support order was entered on August 11, 2012, he was working for his family's business, Tellez Motors, where he had worked for 20 years since age 18. Tellez testified, however, that almost two weeks later, on August 24, 2012, he had a stroke which resulted in internal bleeding in his brain and memory loss, leaving him disabled and unable to work or drive.[6]Although Tellez did not provide any medical records, he testified that he was hospitalized after the stroke, was still under a doctor's treatment at the time of the hearing, and was taking medication as the result of his stroke to prevent seizures.[7]

         Tellez testified that because of his stroke, he had not worked at Tellez Motors or elsewhere since August of 2012, and that his only source of income came from his SSI benefits, which at the time of the hearing were set at $490.00 a month.[8] At the hearing, Tellez submitted two letters from the Social Security Administration, dated November 30, 2014 and November 27, 2016, to establish that he was receiving SSI benefits.[9] Tellez expressed his understanding that he would continue to receive SSI benefits until such time as he was able to return to work, and that as of the hearing date, the Social Security Administration had not made a finding that he was able to work. Tellez also testified that he had no other financial resources and no means to generate any income.

         Although Rodriguez did not dispute that Tellez had suffered a stroke or that he was receiving SSI benefits, she expressed her belief that he was still working for his father at Tellez Motors, testifying that she observed him showing a vehicle to a customer in October of 2014, over two years prior to the hearing, and that some of her "friends and neighbors" had also seen him working at the business on unspecified occasions. Rodriguez also testified that Tellez informed her that after his stroke, he still worked at his family's business "every now and then to help out his dad." In addition, Rodriguez testified that in August of 2013, she had seen a Tellez Motors' banner with Tellez's name on it, which the Tellez family was using to advertise the business at an annual event held by her church. Although Rodriguez testified that she had photographs of the banner from the August 2013 event, she did not bring them with her to court, and she acknowledged that she had not seen the banner since the 2013 event.

         At the hearing, Rodriguez admitted that she had no documentary proof that Tellez was working at his family business, and had no proof that he had any income other than his SSI checks. However, she expressed her belief that his family might be paying him in cash for his work, as she had witnessed them do so in the past, when she and Appellant were living together prior to their separation several years ago.

         Following the hearing, the trial court entered an order dated March 14, 2017, denying Tellez's motion to modify child support and granting Rodriguez's request for attorney's fees, awarding attorney's fees of $1, 000.00 to Rodriguez. Tellez thereafter filed a motion for new trial which was overruled by operation of law.[10] This appeal followed.

         DISCUSSION

         Tellez challenges the trial court's order in two issues. In his first issue, he contends that the trial court erred in denying his motion for modification because the undisputed evidence demonstrated the existence of a material and substantial change in his financial circumstances warranting the requested modification. In his second issue, he ...


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