Joanna Laufer v. Justin Gordon ( 2019 )

Affirmed and Memorandum Opinion filed November 21, 2019.
In The
Fourteenth Court of Appeals
NO. 14-18-00744-CV
JOANNA LAUFER, Appellant
V.
JUSTIN GORDON, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2017-67140
MEMORANDUM OPINION
Appellant Joanna Laufer appeals the trial court’s order assessing attorney’s
fees and costs against her in connection with appellee’s application for a protective
order. The trial court denied Justin Gordon’s application for a protective order but
found nonetheless that Joanna committed family violence against Justin. The court
ordered Joanna to pay $10,131 in fees and costs, plus interest, to Justin’s attorneys.
Joanna asserts on appeal that the trial court erred in awarding attorney’s fees
against her under Texas Family Code section 81.005 because the court did not
consider, as this section requires, whether she has the income or ability to pay the
award, and the court did not find that she is so able. We conclude that Joanna has
not shown that the trial court acted outside its discretion, and we affirm the trial
court’s order.
Background
Justin filed an application for a protective order against Joanna. The trial
court found that Joanna committed family violence against Justin, but that she was
unlikely to engage in family violence in the future. Thus, the court denied Justin’s
protective-order application. See Tex. Fam. Code §§ 81.001, 85.001; Ford v.
Harbour, No. 14-07-00832-CV, 2009 WL 679672, at *3 (Tex. App.—Houston
[14th Dist.] Mar. 17, 2009, no pet.) (mem. op.) (“A trial court shall render a
protective order if, after a hearing, it finds that family violence has occurred and is
likely to occur in the future.”). Justin has not appealed and does not challenge the
court’s ruling denying the protective order.
As part of the application for a protective order, Justin sought his attorney’s
fees and costs under the Family Code. See Tex. Fam. Code § 81.005(a). Section
81.005(a) provides that the court “may assess reasonable attorney’s fees against the
party found to have committed family violence . . . as compensation for the
services of a private or prosecuting attorney or an attorney employed by the
Department of Family and Protective Services.” Id. During the protective-order
hearing, Justin’s attorneys presented evidence supporting his request for $10,131 in
attorney’s fees and costs. Joanna did not dispute that Justin’s requested fees and
costs were “reasonable and customary.”
Joanna claimed, however, that she was unable to pay the amount requested.
Joanna testified that she works as a contractor in the field of construction permits.
Although her testimony was not entirely clear, the record shows that she was
2
receiving as after-tax income in 2018 at least $3,000 and potentially as much as
$3,500 per month, which includes $500 in monthly child support for her young
daughter, who lives with her.1 Joanna stated that she receives no other income.
Joanna recalled that her 2017 income was “maybe” $38,000, though she had not
filed her 2017 tax return because her “CPA is doing that right now.” As to current
assets, Joanna testified that she has approximately $1,500 to $2,000 in savings as
“emergency money.” She did not state, and was not asked, whether she has any
other assets.
According to Joanna, her monthly expenses as of June 2018 include:
(1) $1,250 for rent; (2) $165 for utilities; (3) $55 for cell phone service; (4) $400
for childcare; (5) $700 for food, clothing, and medications; (6) $100 for gas;
(7) $250 for her car payment; (8) $125 for automobile insurance; and (8) $100 for
health insurance.
Joanna is represented by counsel, but she has not paid any legal fees. She
did not state whether she owed any legal fees to her attorneys, whether someone
else paid legal fees on her behalf, or if her attorneys were representing her pro
bono. She is currently in a dating relationship with one of her attorneys.
After hearing the evidence, the trial court awarded $10,131 in attorney’s fees
and costs to Justin’s attorneys. The trial court stated on the record that the award
takes into consideration Joanna’s ability to pay. In a signed order, the trial court:
(1) found that Joanna committed family violence against Justin; (2) found that
Joanna is not likely to engage in family violence in the future; (3) denied Justin’s
application for protective order; and (4) memorialized the court’s award of
attorney’s fees and costs in Justin’s favor for $10,131.
1
These income figures are based on Joanna’s testimony at the protective-order hearing,
which occurred in June 2018.
3
Joanna timely requested findings of fact and conclusions of law.
Additionally, Joanna filed a motion for new trial on attorney’s fees, challenging the
sufficiency of the evidence to support the trial court’s fee award and emphasizing
that the trial court must consider Joanna’s income and ability to pay before
assessing fees. The trial court signed findings and conclusions on July 9, finding
that Justin “has incurred reasonable and necessary legal fees of $8,531.00 and costs
of $1,600.00. . . .” However, the court included no findings concerning Joanna’s
ability to pay, and Joanna did not request additional findings.2 The trial court
denied Joanna’s motion for new trial by written order.
This appeal timely followed.3
Analysis
Joanna contends that the trial court abused its discretion because the
attorney’s fee award is not supported by legally or factually sufficient evidence of
her ability to pay. According to Joanna, the only evidence in the record
conclusively establishes her inability to pay fees of $10,131. Joanna requests
rendition of judgment in her favor.
2
In a reply in support of her motion for new trial, Joanna objected to the trial court’s
findings regarding attorney’s fees because they were “silent on the subject of [Joanna]’s income
or ability to pay. . . .” Joanna filed her reply, however, outside the time permitted for requesting
additional findings and conclusions, and it did not contain a request for specified additional or
amended findings or conclusions. See Tex. R. Civ. P. 298.
3
Together with her notice of appeal, Joanna filed a statement of inability to afford
payment of court costs or an appeal bond. See Tex. R. Civ. P. 145. The trial court sua sponte
conducted a hearing on Joanna’s request to proceed on appeal without payment of costs. See
Tex. R. Civ. P. 145(f)(4), (5). The trial court denied Joanna’s request, and Joanna moved this
court to review the trial court’s order sustaining the contest to her statement of inability to pay
costs. We reversed the trial court’s order because Joanna presented unrebutted evidence that she
was currently unable to afford costs on appeal. We ordered that Joanna could proceed with this
appeal without payment of costs.
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A. Governing Law and Standards of Review
Under section 81.005, a trial court may assess reasonable attorney’s fees
against a party who, like Joanna, was found to have committed family violence.
Tex. Fam. Code § 81.005(a). Further, in setting the amount of a reasonable fee,
“the court shall consider the income and ability to pay of the person against whom
the fee is assessed.” Id. § 81.005(b); Ford, 2009 WL 679672, at *6. Section
81.005(b) does not say that income and ability to pay are the only factors a court
may consider in setting the amount of a reasonable attorney’s fee, nor does it
prohibit consideration of other factors. It merely mandates consideration of one
factor: the respondent’s income and ability to pay. Tex. Fam. Code § 81.005(b).
When, as in this case, a statute states that a trial court “may” award
attorney’s fees, such an award is discretionary, and we review the trial court’s
choice to award fees under the abuse-of-discretion standard. Robinson v. Brannon,
313 S.W.3d 860, 868 (Tex. App.—Houston [14th Dist.] 2010, no pet.); Playoff
Corp. v. Blackwell, 300 S.W.3d 451, 458-59 (Tex. App.—Fort Worth 2009, pet.
denied). We then review whether sufficient evidence supports the amount of fees
awarded. Goodson v. Castellanos, 214 S.W.3d 741, 758-59 (Tex. App.—Austin
2007, pet. denied); see Monroy v. Monroy, No. 03-10-00275-CV, 2011 WL
3890401, at *7 (Tex. App.—Austin Aug. 31, 2011, pet. denied) (mem. op.); see
also Garcia v. Gomez, 319 S.W.3d 638, 646 (Tex. 2010); Bocquet v. Herring, 972
S.W.2d 19, 20 (Tex. 1998). A trial court abuses its discretion if it rules arbitrarily,
unreasonably, without regard to legal principles, or without supporting evidence.
Bocquet, 972 S.W.2d at 21. Legal and factual sufficiency of the evidence are not
independent grounds of error under the abuse-of-discretion standard, but are
relevant factors in assessing whether the trial court abused its discretion. Matter of
Marriage of Harrison, 557 S.W.3d 99, 112 (Tex. App.—Houston [14th Dist.]
5
2018, pet. denied); see also Bocquet, 972 S.W.2d at 21. A trial court does not
abuse its discretion when some evidence reasonably supports its decision. Butnaru
v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002); Harrison, 557 S.W.3d at 121.
In evaluating the legal sufficiency of the evidence, we consider whether the
evidence adduced in the trial court would enable reasonable and fair-minded
people to reach the decision under review. See City of Keller v. Wilson, 168
S.W.3d 802, 827 (Tex. 2005). We view the evidence in the light most favorable to
the verdict or finding and indulge every reasonable inference to support it. See id.;
Ford, 2009 WL 679672, at *2. We credit favorable evidence if a reasonable fact
finder could and disregard contrary evidence unless a reasonable fact finder could
not. City of Keller, 168 S.W.3d at 827; Ford, 2009 WL 679672, at *2.
When reviewing the factual sufficiency of the evidence, we examine the
entire record, considering all the evidence both in favor of and contrary to the
finding. Vast Constr., LLC v. CTC Contractors, LLC, 526 S.W.3d 709, 723 (Tex.
App.—Houston [14th Dist.] 2017, no pet.) (citing Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986) (per curiam)). When a party attacks the factual sufficiency of an
adverse finding on an issue on which it had the burden of proof, the party must
demonstrate on appeal that the adverse finding is against the great weight and
preponderance of the evidence. Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242
(Tex. 2001) (per curiam). We consider all the evidence and will set aside the
judgment only if it is so contrary to the overwhelming weight of the evidence that
it is clearly wrong and unjust. Cain, 709 S.W.2d at 176.
We of course defer to the trier of fact as to witness credibility and the weight
afforded their testimony. See City of Keller, 168 S.W.3d at 819; Ford, 2009 WL
679672, at *2. Thus, the trial court may accept or reject any or all of a witness’s
testimony, Hailey v. Hailey, 176 S.W.3d 374, 383 (Tex. App.—Houston [14th
6
Dist.] 2004, no pet.), and may resolve inconsistencies in a witness’s testimony.
McGalliard v. Kuhlmann, 722 S.W.2d 694, 697 (Tex. 1986). We “must not merely
substitute [our] judgment for that of the [fact finder].” Golden Eagle Archery, Inc.
v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). However, a fact finder “cannot
ignore undisputed testimony that is clear, positive, direct, otherwise credible, free
from contradictions and inconsistencies, and could have been readily
controverted.” Keller, 168 S.W.3d at 820.
B. Joanna’s Sufficiency Arguments
Joanna does not dispute that Justin presented some evidence that his
attorneys necessarily incurred reasonable attorney’s fees in pursuing a protective
order. Joanna argues that she presented evidence of an inability to pay, and that
Justin presented no rebutting evidence of Joanna’s ability to pay the amount
requested. Joanna contends further that the Family Code forbids an award beyond
a party’s present ability to pay.
In support of her argument, Joanna directs the court to Halleman v.
Halleman, No. 02-11-00238-CV, 2011 WL 5247882, at *4 (Tex. App.—Fort
Worth Nov. 3, 2011, orig. proceeding) (mem. op.); In re Wymore, No. 02-05-
00056-CV, 2005 WL 737476, at *3 (Tex. App.—Fort Worth Mar. 31, 2005, orig.
proceeding) (mem. op.); Garza v. Garza, 155 S.W.3d 471, 476 (Tex. App.—San
Antonio 2004, no pet.); and Herschberg v. Herschberg, 994 S.W.2d 273, 279 (Tex.
App.—Corpus Christi 1999, orig. proceeding). None of these cases involve the
application of section 81.005. Further, Joanna’s cases are distinguishable because
they involve circumstances where the record reflected that the party being assessed
fees or costs had monthly expenses clearly exceeding monthly income, or no
evidence supported the appellant’s ability to pay a substantial lump-sum amount.
For example, in Halleman, the trial court abused its discretion by ordering the wife
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to pre-pay $95,000 into the court registry for the husband’s appellate attorney’s
fees because the only record evidence showed that the wife’s monthly expenses
exceeded her monthly net after-tax income. Halleman, 2011 WL 5247882, at *2,
4. In Wymore, the trial court abused its discretion by ordering the husband to pay
the wife an amount equal to nearly 75% of his monthly income for attorney’s fees
and spousal support, “leaving him with a little more than 25% of his monthly
income, an amount inadequate to cover his minimum monthly needs.” Wymore,
2005 WL 737476, at *3. In Garza, the trial court abused its discretion in
sustaining a contest to the wife’s affidavit of inability to pay appellate costs
because the uncontroverted evidence reflected that the wife’s monthly living
expenses far exceeded her income and she did not have the ability to borrow funds
to pay for the appellate record. Garza, 155 S.W.3d at 475-76. Finally, in
Herschberg, the trial court abused its discretion by ordering the husband to pay
attorney’s fees and spousal support of $420,000, yet the husband’s annual salary
was only $150,000. Herschberg, 994 S.W.2d at 279.
The circumstances in the present case are different. Joanna makes as much
as $3,500 per month. She equivocated on the exact amount of her monthly
income, but the trial judge alone makes credibility determinations 4 and reasonably
could have resolved the inconsistency in her testimony against her and found that
she receives $3,500 per month, after taxes. See, e.g., McGalliard, 722 S.W.2d at
697. Her monthly expenses total $3,145, and the court could have found that
Joanna was not burdened with the duty to pay legal fees to her attorneys for this
case. Accordingly, a reasonable fact finder could have inferred that Joanna’s total
after-tax monthly income exceeds her monthly expenses by $355, and that Joanna
4
See City of Keller, 168 S.W.3d at 819; McGalliard, 722 S.W.2d at 697.
8
has additional assets of up to $2,000 in cash savings.5 The trial judge also stated
on the record that she considered Joanna’s ability to pay.
Viewing the record in the light most favorable to the order, we cannot
conclude that the trial court abused its discretion in assessing a $10,131 fee award
against a person who committed family violence, is gainfully employed, and has
up to $2,000 in cash savings. To the extent Joanna currently lacks the ability to
pay the amount in one lump-sum, the order does not require a lump-sum payment,
it does not prohibit periodic payments, and it imposes no deadline for payment.6
The trial judge contemplated that it may take longer than one year to satisfy the
award because the order includes post-judgment interest at six percent
compounded annually. From the evidence, a fact finder reasonably could have
concluded that Joanna has the ability to pay a $10,131 award in approximately two
to three years, if she uses her savings and makes a good-faith effort to apply her
monthly surplus. See In re S.M.C., No. 05-07-01756-CV, 2009 WL 930344, at *1
(Tex. App.—Dallas Apr. 8, 2009, no pet.) (mem. op.) (holding $10,000 attorney
fee order in child custody case, payable in monthly installments of $300 due to
appellant’s financial difficulties, was not an abuse of discretion because some
evidence supported award). Though satisfying the award may be onerous and
require financial discipline, there exists some evidence that Joanna has an ability to
pay it. See id. We cannot agree with Joanna that no evidence supports the amount
awarded or that she conclusively established that she is unable to pay the fee
award. See Ford, 2009 WL 679672, at *6-7.
5
We presume that all fact findings needed to support the judgment were made by the trial
judge. Smith v. Smith, 22 S.W.3d 140, 149 (Tex. App.—Houston [14th Dist.] 2000, no pet.).
6
Citing Family Code section 81.004(b), Joanna says she has merely two months to pay
the award. We disagree. Section 81.004(b) does not apply to payment of attorney’s fees. Tex.
Fam. Code § 81.004(b).
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Further, after considering the record in its entirety, we cannot say that the
trial court’s award of fees is so contrary to the overwhelming weight of evidence as
to be clearly wrong and unjust.
We conclude that both legally and factually sufficient evidence supports the
trial court’s $10,131 fee award. Thus, the trial court did not abuse its discretion.
See, e.g., Butnaru, 84 S.W.3d at 211 (no abuse of discretion when some evidence
reasonably supports trial court’s decision); Bocquet, 972 S.W.2d at 21 (trial court
abuses discretion if it rules without any supporting evidence).
We overrule Joanna’s first and second issues.
C. Lack of Findings on Ability to Pay
Joanna asserts in her third issue that the trial court’s order must be reversed
because the trial court’s findings of fact and conclusions of law “are silent on the
subject of [Joanna]’s income or ability to pay an award of attorney’s fees.” We
disagree that the absence of findings on that specific issue compels us to reverse
the order.
After the court files original findings of fact and conclusions of law, any
party may file with the clerk of the court a request for specified additional or
amended findings or conclusions. Tex. R. Civ. P. 298. “If the trial court’s original
findings do not include any findings on a ground of recovery or defense, . . . then
the party relying on the ground of recovery or the defense must request additional
findings of fact in proper form or the ground is waived.” Howe v. Howe, 551
S.W.3d 236, 248 (Tex. App.—El Paso 2018, no pet.); see Smith v. Smith, 22
S.W.3d 140, 149 (Tex. App.—Houston [14th Dist.] 2000, no pet.). We presume
that the trial judge made all fact findings needed to support the judgment, including
that Joanna’s monthly income exceeds her monthly expenses. Smith, 22 S.W.3d at
10
149. This presumed finding is supported by the record. Further, because Joanna
failed to request additional findings on her inability-to-pay defense, she cannot rely
on the lack of an express specific finding as a ground for reversal. See Howe, 551
S.W.3d at 248; Pagare v. Pagare, 344 S.W.3d 575, 581 (Tex. App.—Dallas 2011,
pet. denied); Smith, 22 S.W.3d at 149 (“Failure by a party to request additional or
amended findings or conclusions waives the party’s right to complain on appeal
about the presumed finding.”).
Joanna relies on a 2001 opinion from the Dallas Court of Appeals case to
support her argument. See Hermosillo v. Saxton, No. 05-98-02045-CV, 2001 WL
985161, at *1 (Tex. App.—Dallas Aug. 29, 2001, no pet.) (not designated for
publication). Apart from lacking precedential value, see Tex. R. App. P. 47.7(b),
Hermosillo considered a record that, unlike the one before us, contained absolutely
no evidence concerning Hermosillo’s income or his ability or inability to pay
attorney’s fees. Id. at *1-2. Here, the record contains some evidence of Joanna’s
assets, monthly income, and monthly expenses, and it supports a finding that
Joanna has an ability to pay the attorney’s fee award.
Accordingly, we overrule Joanna’s third issue.
We affirm the trial court’s order awarding fees and costs.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Bourliot, and Zimmerer.
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