File: 060885F - From documents transmitted: 07/23/2007
AFFIRM; Opinion issued July 23, 2007



In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-00885-CV
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IN THE INTEREST OF K.R., A MINOR CHILD
.............................................................
On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. 88-06265-T
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MEMORANDUM OPINION
Before Justices Morris, Francis, and Mazzant
Opinion By Justice Mazzant
        The Office of the Attorney General of Texas appeals the trial court's take-nothing judgment dismissing the attorney general's motion to enforce Troy D. Bell's child support obligation. The attorney general brings two issues   See Footnote 1  on appeal: (1) the trial court abused its discretion by excluding from evidence the attorney general's payment records; (2) the record shows, as a matter of law, that Bell owed a child support arrearage. For the reasons stated below, we affirm the trial court's judgment.

Background
        In 1988, the attorney general sued to establish Bell as the father of K.R. and set child support payments. The trial court signed an order in 1989 establishing Bell as the father of K.R. and ordering him to pay child support of $35 per week. In 1994, the attorney general moved to enforce the child support order, which resulted in an April 14, 1995 agreed order establishing an arrearage against Bell for $7200. In July of 1996, the attorney general moved again for enforcement. In November 1997, the trial court signed an order finding Bell's arrearage to be $13,994.45 as of October 24, 1997. In May 2004, the attorney general filed another motion for enforcement.
        The motion for enforcement came to trial on February 10, 2006. At the request of the attorney general, the trial court took judicial notice of the October 1997 arrearage judgment of $13,994.45. Neither side called any witnesses. The attorney general attempted to introduce into evidence the “exhibit D” attached to the motion for enforcement. Bell's attorney objected that the document did not constitute a “payment record” under section 157.162(c) of the Texas Family Code, and the trial court sustained the objection. After the trial judge sustained Bell's objection, the attorney general offered into evidence an “updated” record, which was identified as “State's Exhibit Number 1.” Bell's attorney renewed his previous objection and also objected on the grounds of hearsay. The trial court sustained the objections. At the conclusion of the hearing, Bell's attorney moved for a directed verdict, citing the absence of evidence of child support payments due, made, or interest owed. The trial court granted the motion. On March 13, 2006, the trial judge signed a take-nothing judgment against the attorney general dismissing the enforcement action.
Discussion
        In its first issue, the attorney general claims the trial court abused its discretion by excluding from evidence “exhibit D” and the “updated” record. We first address the admissibility of “exhibit D.”
        Questions concerning the admission and exclusion of evidence are reviewed under an abuse of discretion standard. In re R.J.P., 179 S.W.3d 181, 184 (Tex. App.-Houston [14th Dist. 2005, no pet.). We will reverse only if the trial court abused its discretion by acting without reference to any guiding rules or principals or by acting arbitrarily or unreasonably. Id.; Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam). A trial court abuses its discretion as to legal issues when it fails to analyze or apply the law correctly. In re D.S., 76 S.W.3d 512, 516 (Tex. App.-Houston [14th Dist.] 2002, no pet.). We may not reverse for abuse of discretion merely because we disagree with the trial court's decision. Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.-Dallas 2006, no pet.).
        Section 157.002 of the Texas Family Code dictates the requirements of a motion for enforcement of a child support order. Section 157.002(b)(1) requires a motion for enforcement to include the amount owed as provided in the support order, the amount paid, and the amount of the arrearage. See Tex. Fam. Code Ann. 157.002(b)(1) (Vernon 2002). Section 157.002(b)(3) provides that the motion may include as an attachment a copy of a record of child support payments maintained by the Title IV-D registry or a local registry. Id. 157.002(b)(3) Section 157.162(c) provides that a “copy of the payment record attached to the motion is evidence of the facts asserted in the payment record and is admissible to show whether payments were made. The respondent may offer controverting evidence.” Id. 157.162(c) (Vernon Supp. 2006).
        In attempting to introduce “exhibit D” into evidence, the attorney general relied on section 157.162(c). Bell's attorney objected that the document contained “extraneous matters,” such as unexplained interest terms and calculations, that far exceeded the scope of a “payment record” under the statute. He argued there was nothing in “exhibit D” to tell him how the interest was calculated, the interest rates used, whether the interest was compound or simple, and whether interest was calculated on an annual or monthly basis. The trial court sustained the objection. Analyzing section 157.162(c) and “exhibit D,” the trial court told the attorney general:

You're bootstrapping in and getting all your interest issues which are, is not--that's not what it says. It doesn't say the final judgment, it says whether payments were made. And that's got far beyond whether payments were made or not. So I sustain the objection to that document coming into evidence.

        As the trial court noted in its findings of fact, “exhibit D” is styled a “PRE-TXCSES FINANCIAL ACTIVITY REPORT.” “Exhibit D” concludes with an entry showing an outstanding balance of $20,712.15 due as of April 28, 2004. In its findings of fact, the trial court found that the attorney general failed to present any evidence showing what portion of the total amount claimed to be due and owing was interest and what was principal child support. The attorney general also failed to ask the trial court to take judicial notice of the statutory rates of interest to be applied to the child support arrearages for each instance of alleged non-payment of child support. In its conclusions of law, the trial court stated that “exhibit D” “contained an unexplained co-mingling of alleged back child support and various types of unexplained accrued interest that did not reasonably differentiate in the total alleging owing [sic] what was child support and what was interest.”
        The attorney general argues that the presence in “exhibit D” of unexplained interest terms was not a proper objection because such calculations affected only the weight that the trial court should give the exhibit, not its underlying admissibility. He claims Bell's attorney “could have found the relevant law on the calculation of interest in child support cases and applied the law and mathematics to check the attorney general's figures or come up with his own calculation.”
        Under the plain language of section 157.162(c), a copy of a payment record attached to a motion for enforcement is evidence of the facts asserted in the payment record and is admissible to show whether payments were made. See Tex. Fam. Code Ann. 157.162(c) (Vernon 2002). The statute does not define the term “payment record.” We find nothing in this statute, however, to suggest that a “payment record,” as that term is used in the statute, includes a document like the present one, with unexplained interest rates, terms, and calculations. The attorney general's offer of proof made after the trial judge denied the admission of “exhibit D”, which emphasized that the entire document was being offered “into evidence for the truth of the matters asserted there” is further indication “exhibit D” was more than just a payment record. The attorney general did not offer exhibit D for the limited purpose of showing that child support payments were made by Bell. We therefore conclude the trial court did not abuse its discretion in excluding “exhibit D” from evidence.
        As part of his first issue, the attorney general claims the trial court abused its discretion when it excluded the “updated” record or “State's Exhibit Number 1.” After the trial court sustained Bell's objection to “exhibit D,” the attorney general offered “an updated record of that payment record” marked as “State's Exhibit Number 1.” Bell's attorney renewed his previous objection   See Footnote 2  and objected “on the grounds of hearsay.” The attorney general explained he was offering the “updated” record as an exception to the hearsay rule under rule 803(8) of the Texas Rules of Evidence   See Footnote 3  as a record of a public agency. Bell's attorney replied: “There is no predicate laid for the introduction of that document as he has just explained.” Renewing his hearsay objection, Bell's counsel also said, “the State has again failed to prove . . . exactly what this document is.” The attorney general claimed the document was admissible under rule 803(8)(A) because it was a record “setting forth the activities of the office or agency.” Bell's attorney argued the attorney general failed to establish a proper predicate for admission under rule 803(8) and there was no proof offered to authenticate the document. The attorney general responded as follows:

And, Judge, if I, if I have to I can testify but I know that this is a, that this is a record of Attorney General's Office because I'm familiar with records of the Attorney General's Office. I printed this record from our computer this morning. And I made photocopies of it and that's what I'm offering into evidence.

The trial court asked: “Who's he supposed to cross examine in regards to interest, counsel?” The attorney general replied: “That's a matter that would be taken up after it's admitted into evidence. It goes to the weight of the evidence.” After the trial court sustained Bell's objection, the attorney general made another offer of proof, noting it was “the same offer that I've made previously.”
        Citing Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997), the attorney general argues the “updated” record was authenticated by the testimony of the attorney general at trial. We disagree. During the hearing, Bell's attorney objected to admission of “exhibit D” by arguing it could not be reasonably relied upon or properly authenticated by the attorney general. Although this objection was brought concerning “exhibit D,” Bell's attorney renewed his previous objection when the attorney general offered the “updated” record into evidence. Bell's attorney also objected to the “updated” record regarding authentication. This is unlike the situation in Banda where the opponent failed to lodge any objection to the attorney's unsworn statements, thereby waiving “any objection he had.” See id. at 272.
        Therefore, even if the attorney general's statements during the hearing could be construed as testimony, the objection from Bell's attorney prevented the attorney general from authenticating the “updated” record without testifying under oath. See id. (general rule is that an attorney's statements must be under oath to constitute evidence). When the trial judge sustained Bell's objection to the “updated” record, the attorney general had to prove the authenticity of the document by some other means. However, the attorney general made no attempt to call any witnesses to testify at the hearing and the document was not self-authenticating because it was not under seal, a certified copy of a public record, or supported by a business records affidavit. See Tex. R. Evid. 902(1), (2), (4), (10); In re E.A.K., 192 S.W.3d 133, 145 (Tex. App.-Houston [14th Dist.] 2006, pet. denied) (unlike business records, public records can be self-authenticating if they are under seal or are certified copies); State v. Foltin, 930 S.W.2d 270, 272 (Tex. App.-Houston [14th Dist.] 1996, writ denied) (“Once a document has been authenticated, Rule 803(8) does not require a formal predicate to be laid through a witness, but the offered document must be shown to satisfy the requirements of the rule”). We conclude the trial court did not abuse its discretion by sustaining Bell's objections to admission of the “updated” record.
        The attorney general also argues the “updated” record was admissible as a public record under rule 803(8)(A) because it is similar to a document discussed in Perry v. State, 957 S.W.2d 894 (Tex. App.-Texarkana 1997, pet. ref'd). In Perry, however, authentication was not an issue in the case because the document in question was authenticated through the trial testimony of the child support enforcement officer. See id. at 896. Accordingly, we overrule the attorney general's first issue.
        In his second issue, the attorney general argues the “updated” record shows as a matter of law that Bell owes a child support arrearage. At the attorney general's request, the trial court took judicial notice of the 1997 judgment confirming Bell's arrearage of $13,994.45 at twelve percent per annum. The trial court also concluded, however, that the attorney general failed to meet his burden of establishing that Bell owed any child support arrearages as of February 10, 2006.
        Because the attorney general is attacking the legal sufficiency of the evidence to support a fact-finding upon which he had the burden of proof as to the total arrearage, it is his burden to show the record establishes the amount of the arrearage as a matter of law. See Curtis v. Curtis, 11 S.W.3d 466, 472 (Tex. App.-Tyler 2000, no pet.). In so doing, he must overcome two hurdles: (1) the record must first show that there is no evidence to support the trial court's adverse finding; and (2) if there is no evidence to support the adverse finding, an examination of the entire record must reveal that the contrary position has been established as a matter of law. See Curtis, 11 S.W.3d at 472; Buzbee v. Buzbee, 870 S.W.2d 335, 339 (Tex. App.-Waco 1994, no writ).
        After reviewing the record, we conclude it supports the trial judge's decision that there is no evidence Bell currently owes any child support arrearage. The attorney general acknowledges that under Beck and other decisions from this Court, he bore the burden of establishing what child support payments were made and what payments were required but not made. See Beck v. Walker, 154 S.W.3d 895, 903 (Tex. App.-Dallas 2005, no pet.). The record shows that no evidence of payments was admitted at the hearing. Given the absence of evidence at the hearing, we conclude the evidence is legally sufficient to support the trial court's judgment.
        We affirm the trial court's judgment.

                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE

060885F.P05


Footnote 1 Although the attorney general identifies three issues in the “issues presented” portion of the brief, the first two issues are discussed together in the brief.

Footnote 2 During the hearing, in addition to arguing “exhibit D” should not be admitted because it contained “extraneous matters” and unexplained interest terms and calculations, Bell's attorney also argued it was not properly authenticated: “I don't believe that they can, that this document can be reasonably relied upon or properly authenticated by the Attorney General.”

Footnote 3 Rule 803(8) reads as follows:


Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies setting forth:



(A) the activities of the office or agency;



(B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding in criminal cases matters observed by police officers and other law enforcement personnel; or



(C) in civil cases as to any party and in criminal cases as against the state, factual findings resulting from an investigation made pursuant to authority granted by law;

        unless the sources of information or other circumstances indicate lack of trustworthiness.

Tex. R. Evid. 803(8).

File Date[07/23/2007]
File Name[060885F]
File Locator[07/23/2007-060885F]