in the Interest of C.H.S., a Child ( 2017 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-17-00117-CV
IN THE INTEREST OF C.H.S., A CHILD
On Appeal from the County Court at Law No. 1
Lubbock County, Texas
Trial Court No. 2007-538,917, Honorable Mark Hocker, Presiding
December 20, 2017
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
In this private parental-rights termination case, R.C.S. (the father) appeals the trial
court’s final order terminating his parent-child relationship with C.H.S., and appointing
appellee H.L.H. (the mother) sole managing conservator of C.H.S.1 We will modify the
final order to reduce the amount of attorney’s fees awarded the mother’s attorney and
1 As required to protect the child’s identity, we will refer to the child and the parents
by initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P.
9.8(b).
affirm that aspect of the final order as modified and we will affirm the trial court’s
compensatory award to the mother. Otherwise, we will dismiss the appeal as moot.
Background
The father and the mother married in 2005, C.H.S. was born in 2006, and the
couple divorced in 2008. The decree appointed them joint managing conservators with
the mother granted the exclusive right to designate the child’s primary residence. In 2016,
the mother moved to terminate the father’s parental rights to C.H.S.
Following the final hearing, the court rendered an order granting the requested
termination. It grounded its decision on Family Code predicate grounds (D) and (E) of
section 161.001(b)(1) and the finding that termination was in the best interest of C.H.S. 2
The order also awarded attorney’s fees of $19,468.96 to the mother’s attorney and the
mother was awarded $2,400 as compensation for time missed from work because of
continuances granted the father.
The father timely filed a notice of appeal and his appellate brief presents seven
issues challenging the final order. The mother filed a response brief. On November 28,
2017, the mother filed in this Court a suggestion of the father’s death. Attached was a
copy of the father’s obituary supported by counsel’s affidavit, confirming the father died
on November 6, 2017.
2See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),(E) (predicate endangering
grounds) & (2) (best interest) (West Supp. 2017).
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Analysis
Issues Concerning Termination of the Father’s Parental Rights
We jointly address the father’s issues one through five which challenge the portion
of the trial court’s final order terminating his parent-child relationship with C.H.S.
Appellate Rule 7.1 provides:
If a party to a civil case dies after the trial court renders judgment but before
the case has been finally disposed of on appeal, the appeal may be
perfected, and the appellate court will proceed to adjudicate the appeal as
if all parties were alive. The appellate court’s judgment will have the same
force and effect as if rendered when all parties were living. The decedent
party’s name may be used on all papers.
TEX. R. APP. P. 7.1(a)(1). See Tyson v. Tyson, No. 05-98-01811-CV, 2001 Tex. App.
LEXIS 578 (Tex. App.—Dallas Jan. 30, 2001, no pet.) (not designated for publication)
(noting Rule 7.1 does not dispense with the requirement of an existing actual controversy
and generally an appeal will be allowed to proceed on the death of a party only if the
judgment affects the parties’ property rights as opposed to purely personal rights). The
father’s issues one through five concern only his personal rights and not his property
rights. Because of the father’s death, a justiciable controversy concerning the
maintenance of his parent-child relationship with C.H.S. no longer exists. “A justiciable
controversy is one in which a real and substantial controversy exists involving a genuine
conflict of tangible interests and not merely a theoretical dispute.” Texas Dep’t of Pub.
Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.—Austin 1998, no pet.). Without a
genuine controversy, our opinion on the merits of issues one through five would be no
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more than advisory. See Olson v. Comm’n for Lawyer Discipline, 901 S.W.2d 520, 522
(Tex. App.—El Paso 1995, no writ) (“When there has ceased to be a controversy between
the litigating parties due to events occurring after judgment has been rendered by the trial
court, the decision of an appellate court would be a mere academic exercise and the court
may not decide the appeal . . . . Stated another way, if a judgment cannot have a practical
effect on an existing controversy, the case is moot” (internal citation omitted)); see also
In re Marriage of Cain, 223 S.W.3d 503, 505 (Tex. App.—Amarillo 2006, no pet.) (death
of appellant rendered issues attacking dissolution of marriage moot); Meyer v. Texas
Dep’t of Human Svcs., No. B14-90-00749-CV, 1991 Tex. App. LEXIS 1710 (Tex. App.—
Houston [14th Dist.] July 11, 1991, writ denied) (not designated for publication) (same,
appeal of conservatorship ruling moot); Black v. Black, 673 S.W.2d 269 (Tex. App.—
Texarkana 1984, no writ) (because of death of appellant decision on appeal would have
no effect on custody of minor child). We therefore dismiss as moot the father’s issues
one through five.
The Father’s Remaining Two Issues
The father’s remaining two issues challenge the trial court’s award of a judgment
for attorney’s fees to the mother’s counsel and an award to the mother of lost wages for
work missed due to continuances sought by the father. Because these money awards
affect property rights the appeal will proceed as to those two issues pursuant to Rule
7.1(a)(1). See Casillas v. Cano, 79 S.W.3d 587, 592 (Tex. App.—Corpus Christi 2002,
order) (holding because case concerned appeal of a money judgment payable jointly and
severally by the deceased appellant it affected her property rights and was not moot but
could proceed under Rule 7.1(a)(1)).
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Attorney’s Fees
In his sixth issue, the father argues the evidence was legally and factually
insufficient to support the award of $19,468.96 as attorney’s fees to the mother’s attorney.
In his brief the father states attorney’s fees and expenses of $9,130.67 were “proved up”
by “appropriate[]” testimony. We interpret this issue, therefore, as challenging the
sufficiency of the evidence supporting the $10,338.29 difference between the amount the
father concedes was proven and the amount awarded by the trial court.
We agree with the father that the record reflects a distinct difference between the
evidence submitted by the mother in support of the $9,130.67 and that offered as proof
of the remaining $10,338.29. The mother’s attorney testified, describing her experience
and the hourly billing rates she and her paralegal charged in the case. Her testimony
described in some detail the services rendered through the date of July 5, 2016,
concluding that the fees and expenses through that date totaled $9,130.67.
For reasons unclear from our review of the record, however, counsel’s testimony
did not describe or address the services rendered after July 5, 2016 through the
conclusion of trial. For that period of time, the evidence consisted only of a billing
summary listing the total billable hours, and total dollar billable amounts, accumulated in
the file by the mother’s attorney, her paralegal and another firm attorney. The record is
devoid of evidence describing the services rendered or otherwise demonstrating the
reasonableness of the fees charged after July 5, 2016. The billing summary reflects a
“grand total” billable amount of $19,468.96, the amount awarded by the trial court.
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In a suit affecting the parent-child relationship, Family Code section 106.002(a)
grants a trial court broad discretion to render “judgment for reasonable attorney’s fees
and expenses . . . .” TEX. FAM. CODE ANN. § 106.002(a) (West 2014). Nonetheless, given
that state of the record before us, we must agree with the father that the court abused its
discretion by awarding the mother recovery for attorney’s fees without evidence of the
services rendered or the reasonableness of the fees sought for those services. See, e.g.,
In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.); In re E.B., No. 05-14-
00295-CV, 2015 Tex. App. LEXIS 10124, at *4 (Tex. App.—Dallas Sept. 29, 2015, no
pet.); see also Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (per curiam) (minimum
evidence for proof under lodestar method); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.
1998) (court abuses its discretion by ruling without supporting evidence).
Accordingly, the father’s sixth issue is sustained to the extent he challenges the
reasonableness of the $10,338.29 additional fees awarded. We will modify the judgment
to state an attorney fee award to the mother’s counsel of $9,130.67.
Compensation for the Mother’s Lost Wages
In his seventh issue, the father argues the trial court erred by awarding the mother
wages she lost for having missed work to attend hearings that were continued because
of the father’s unavailability.
The father moved to continue the final hearing when scheduled for January 2017.
The mother opposed the request but asked if the court granted the continuance she be
compensated for occasions when she cleared her calendar to attend court proceedings
that ultimately were continued due to the father’s unavailability. At the January 17, 2017
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hearing on the father’s motion for continuance the trial court ordered the final hearing
continued but stated at the final hearing it expected to receive testimony of the amount of
lost wages the mother sought. At the final hearing, the mother testified of five days, or
parts of those days, she missed from work due to the father’s unavailability for court. The
trial court awarded the mother $2,400 based on her evidence of lost wages. The father
made no objection to the procedure or amount of the award. On appeal he does not
challenge the sufficiency of the mother’s proof. Rather he contends the court was not
authorized to make the award for lost wages. Because the father’s appellate complaint
was not presented to the trial court at a time when it could have affected its order, the
complaint presents nothing for our review. TEX. R. APP. P. 33.1(a).
The father’s seventh issue is overruled.
Conclusion
We modify the final order to state the amount of attorney’s fees awarded the
mother’s attorney is $9,130.67 rather than $19,468.96, and affirm that aspect of the order
as modified. See TEX. R. APP. P. 43.2(b). We affirm the trial court’s award of $2,400 lost
wages to the mother. See TEX. R. APP. P. 43.2(a). Otherwise, we dismiss the appeal as
moot.
James T. Campbell
Justice
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