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Greer v. Melcher

Court of Appeals of Texas, First District

October 29, 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 motion to review the trial court's order sustaining the court reporter's contest to Greer's sworn statement of inability to afford payment of court costs.[1]

         We grant Greer's motion to review and affirm the trial court's order.

         Background

         Greer has filed a notice of appeal of the trial court's order, adjudicating parentage, establishing conservatorship and visitation, and requiring payment of child support, in a suit affecting the parent-child relationship. After filing her notice of appeal, Greer filed in the trial court a sworn statement of inability to afford payment of court costs.[2]

         In her statement, Greer stated that she was not represented by legal aid, did not apply for such representation, and she did not receive needs-based public benefits, but she received monthly net income as an attorney at a law firm of $4, 408. Greer listed an additional source of monthly income of $3, 850 in child support. Greer listed her assets including a home that she valued at $2, 000, [3] a Nissan Armada sport utility vehicle that she valued at negative $5, 000, [4] and a bank account with zero funds. And Greer listed monthly expenses, including a house payment of $1, 806, a car payment of $912, a credit card payment of $1, 224, and a student loan payment of $701, for total expenses exceeding her monthly income. Based on these expenses, Greer claimed that she could not afford to pay court costs.

         A court reporter, Barbara K. Nagji, filed a contest to Greer's statement, and the trial court held a hearing at which Greer testified. During the hearing, Greer admitted that she left out assets and other sources of funds in her statement, though she claimed that the statement was accurate when it was made. For instance, Greer testified that she left out a second vehicle, a Chevrolet truck, the value of which she claimed to be $15, 000. However, Greer also stated that she owed more on the truck than it was worth. Greer also admitted that she had failed to include in her statement a tax refund, which in previous years had been in excess of $6, 000, and any value related to her 401(k) account. Greer admitted that she made a monthly, voluntary contribution of 3% of her gross salary[5] to a 401(k) account. Greer further testified that she had received a performance bonus of more than $3, 000, but claimed that she did not include it in her statement because it was not guaranteed.

         Greer also stated that she was voluntarily supporting a nephew, for whom she had previously received child support payments from the nephew's father, but the child support payments had stopped when the nephew turned eighteen years old. Greer also admitted that she had received plastic surgery valued at $25, 000-$35, 000, but she claimed that she did not pay for her surgery because the surgeon accepted her agreement to provide publicity in lieu of payment. Although various media sources stated that Greer only received her plastic surgery at a discounted rate and not for free, Greer insisted that those accounts were inaccurate. Finally, Greer admitted to having made material misrepresentations of fact to the Office of the Attorney General that were later incorporated into an order.

         On May 3, 2019, the trial court signed an order sustaining the court reporter's contest, making numerous findings of fact, and ordering Greer to pay court costs. Ultimately, the court concluded that Greer did not lack funds to pay for court costs based on the following: (1) the receipt of a tax refund, (2) an additional vehicle that could be sold, (3) an ability to increase her income by ceasing her voluntary 401(k) contribution, and (4) an ability to increase her income by ceasing voluntary support of her nephew. The trial court further concluded that Greer's representations regarding her financial condition were not credible given the following: (1) her claimed lack of knowledge about certain facts, (2) her admission that her statement was inaccurate and omitted information, and (3) her admission that she had made material misrepresentations to the Office of the Attorney General that was subsequently incorporated into an order.

         Thereafter, Greer filed a motion in this Court requesting that we review the trial court's order. In her motion, she raises four grounds for reversing the trial court's order: (1) the court reporter's contest to her statement was defective, (2) the court reporter's contest was premature as Greer had not requested the reporter's record, (3) the trial court erred in excluding evidence, and (4) the trial court erred in concluding that she had not established her inability to afford payment of court costs.

         Inability to Afford Payment of Court Costs

         Texas Civil Rule of Procedure 145 requires a party claiming an inability to afford payment of court costs to file a statement of inability. See Tex. R. Civ. P. 145 ("Payment of Costs Not Required"). The party must provide evidence in the statement, or in the attachments to it, that she does not have the funds to afford payment of court costs. Tex.R.Civ.P. 145(a), (e). In deciding whether a party is indigent or unable to afford payment of court costs, the trial court determines whether the preponderance of the evidence shows that she is unable, despite a good faith effort, to pay all or part of the costs. See Moreno v. Perez, 363 S.W.3d 725, 742 (Tex. App.-Houston [1st Dist.] 2011, no pet.) (quoting Higgins v. Randall Cnty. Sheriff's Off., 257 S.W.3d 684, 686-87 (Tex. 2008)). However, if a party has assets from which she could secure funds to pay court costs without depriving her family of the necessities of life, she should be required to dispose of those assets, or mortgage them to pay court costs or give security for costs. See White v. Bayless, 40 S.W.3d 574, 576 (Tex. App.-San Antonio 2001, pet. denied) (failure to use assets to provide funds to pay for court costs ...


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