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Greer v. Melcher

Court of Appeals of Texas, First District

September 19, 2019

XOCHYTL DIANE GREER, Appellant
v.
WESLEY MICHAEL MELCHER, Appellee

          On Appeal from the 245th District Court Harris County, Texas Trial Court Case No. 2017-41808

          Panel consists of Justices Kelly, Hightower, and Countiss.

          MEMORANDUM ORDER

          PER CURIAM.

         Appellant, Xochytl Diane Greer, has filed a notice of appeal of the trial court's second reformed order adjudicating parentage in a suit affecting the parent-child relationship. And Greer has filed a motion for review of the trial court's order sustaining court reporter Barbara K. Nagji's motion challenging Greer's Statement of Inability to Afford Payment of Court Costs or an Appeal Bond (the "Statement").[1]In her sole issue, Greer contends that the trial court erred in sustaining Nagji's motion.

         We grant Greer's motion for review and reverse.

         Background

         Greer filed suit to establish the parent-child relationship between her minor child, I.G.M., and appellee, Wesley Michael Melcher, and to provide for conservatorship, visitation, and support. After a three-day hearing, the trial court signed an order adjudicating parentage in a suit affecting the parent-child relationship and later signed a second reformed order adjudicating parentage. Greer filed a notice of appeal.

         Greer also filed her sworn Statement asserting that she could not "afford to pay court costs."[2] In her Statement, she listed her two children, I.G.M. and K.G., and a nephew, B.S., as "[t]he people who depend[ed] on [her] financially." She stated that her "monthly income" was $8,258, which included "monthly wages" of $4,408 that she received from her work as an attorney and $3,850 in child support payments; she did not receive any income from "[t]ips" or "bonuses"; and her property was valued at "-$3,000[]," which included a sport utility vehicle ("SUV") valued at "-$5[,]000[]" and a "[r]esidental [h]ome" valued at $2,000.[3] The value of any cash, bank accounts, or "other financial assets" was listed as "$0." The Statement also showed that Greer's total monthly expenses were $8,390, which included "[d]ebt payments" of $1,224 for "[c]redit card [debt]," and $701 for "[s]tudent [l]oan [debt]." Greer further stated that her debts included "[s]tudent loan[] [debt], car [debt], [and] credit card[] [debt] which [had] mostly accumulated due to th[e] case being in litigation in excess of two years and [Greer] having to put attorney's fees on credit cards."

         Court reporter Nagji filed a motion to require Greer to pay costs, asserting, in part, that "the testimony and evidence presented during the trial in th[e] case would show that . . . Greer [was] not indigent."[4] The trial court then held a hearing on Nagji's motion at which Greer was the only witness to testify and during which no exhibits were admitted.[5]

         At the hearing on Nagji's motion, Greer testified that she "believe[d] [her Statement] to be accurate at the time [that she] filed it," but she also "believe[d] [that she had] rushed it so there [were] some missing elements to it." As to the "missing elements," she explained that she owned "a second [car] . . . a Chevy truck," with a current value of "[p]robably $15,000" and "an outstanding debt on it equal to the [truck's] value," and that she had "fail[ed] to include [on the Statement] a $300 car payment" for the Chevy truck. The monthly car payment in the amount of $912, which she had included as an expense on the Statement, was her monthly payment for the SUV that she drove and had purchased in December 2017. When asked if she had "considered purchasing a less expensive [car] to reduce [her] . . . note" for her SUV, Greer answered, "Well, considering I am upside down on it now, no." According to Greer, having both her SUV and the Chevy truck was "necessary" because B.S., who was a high school student, lived in her home. Although she did not receive any "support for [his] care," because he would "be going to . . . Boston University," the expenses included on her Statement "could potentially" be reduced "in the future but not by much."

         Greer further testified that the Harris County Appraisal District "represented . . . the fair market value" of her home as "around $200,000" and the $2,000 amount that she had included in the Statement represented the "equity of [her] home." Further, the amount of "$4,400 per month that [she] receive[d] as an attorney" was her "net wages"; her "gross amount of [monthly] wages" was $7,000; and the "net wages" amount that she listed on her Statement did not include "any bonuses or other compensation [she] [c]ould [have] receive[d] from [her] employment." Greer explained that, although she "[m]aybe sometimes" received an end-of-year bonus from her employer, a bonus was not guaranteed, and she had not included any bonus amount on her Statement. Greer testified that she also received a tax refund of more than $3,000 in mid-February 2019 and did not dispute that she had received a tax refund "in excess of $7,000" related to her "2016 [tax] return" and a tax refund "in excess of $9,000" related to her "2017 [tax] return."

         Further, Greer's Statement shows, and she testified at the hearing, that she receives child support payments of $3,850 each month, of which $3,300 was paid by Melcher and $550 was paid by K.G.'s father, Tanner Smith. Greer explained that the court order regarding child support payments for K.G. provided that Smith was required to pay "zero" and he made child support payments "voluntarily without a court order." A previous order, which had obligated Smith to make child support payments, had been modified in 2009 through the Attorney General's office. At that time, Greer and Smith represented to the Attorney General that they were "reconciling" and "request[ed] [that] the child support order be reduced to zero." However, Greer had testified in a deposition in the instant case that her "representation to the Attorney General was not true." Greer further testified that she "did not identify" in her Statement that she "receive[d] cash medical support" from Smith and Melcher and that each was obligated to reimburse her for fifty percent of any uninsured medical costs. However, Greer noted that she did not take any reimbursements "in[to] account in the numbers [that she had] reflected as [her] expenses for medical and dental" because she currently was not "receiving [fifty] percent" from Smith and Melcher. The amount she included on her Statement represented "100 percent of [her] medical expenses."

         Greer also testified that she had "attempted to take out loans," had "attempted to get credit cards," but had been "denied for everything," the limits on her credit cards were "all maxed out," she had borrowed $10,000 from her mother in 2018; and she had taken out two loans from her 401(k) plan "to help through litigation." Greer testified that her 401(k) plan contributions were "voluntary" and she contributed approximately $355 per month, which is the amount that her employer "matches." Finally, Greer noted that she had had "some plastic surgery" for which she "did not spend any money out of pocket" and for which no one had loaned her money. And any "reports . . . representing [that her plastic surgery] was simply discounted for [her]," were "inaccurate."

         Finally, on her own behalf, Greer testified in narrative form that her "expenses [were] greater that her income" and "looking at" the Statement and "[even] with failing to include a $300 car payment for [the Chevy truck]," her expenses "greatly outweigh[ed]" her income and she did not "have the ability to afford costs."

         After the hearing, the trial court signed an order, sustaining court reporter Nagji's challenge to Greer's Statement and finding,[6] in part, that Greer:

• "indicated that her [Statement] was not accurate as it was prepared in a rush, and she omitted [the Chevy truck] she owns and additional resources ...

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