in the Interest of N.R.G., a Minor Child ( 2022 )

Affirmed and Memorandum Opinion filed June 9, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00408-CV
IN THE INTEREST OF N.R.G., A MINOR CHILD
On Appeal from the 247th District Court
Harris County, Texas
Trial Court Cause No. 2017-49664
MEMORANDUM OPINION
Appellant M.G. (“Father”)1 appeals the trial court’s order in a suit affecting
the parent-child relationship, contending the (1) trial court abused its discretion
when it excluded the testimony of a court-appointed psychologist, and (2) evidence
is legally insufficient to support the attorney’s fees awarded to R.G. (“Mother”).
We affirm.
1
To preserve the privacy of the minor child, we use pseudonyms or initials to refer to the
child, parents, and others involved in this case.
BACKGROUND
Mother met Father in 2015 when she started working at his law firm.
Mother and Father started a relationship during a trip to Las Vegas in June or July
2016. In November 2016, Mother found out she was pregnant with Father’s child.
During Mother’s pregnancy, Mother and Father had a turbulent on-again-off-again
relationship. When Mother and Father were not on good terms, Father dated J.R.
— a woman he had dated before starting a relationship with Mother. Mother gave
birth to Norman in the summer of 2017; at the time, Mother and Father were not on
good terms.
About two weeks after Norman’s birth, Father filed a Petition to Adjudicate
Parentage. The petition (1) stated that the purpose of the suit is to establish the
parent-child relationship between Father and Norman; (2) stated that it is in
Norman’s best interest to appoint Father as the sole managing conservator with the
exclusive right to designate the primary residence; (3) stated that good cause exists
to change Norman’s name; (4) requested that orders be entered for child support
and that “appropriate orders be made for access to the child and the allocation of
the rights and duties of the conservators”; (5) requested that the court appoint an
amicus attorney to represent Norman’s interests; and (6) requested that “genetic
testing be ordered in accordance with chapter 160 of the Texas Family Code.”
Even after Father filed his petition, he and Mother continued their turbulent
on-again-off-again relationship. In September 2017, they attended a charity event
at a hotel in Galveston. Mother called the police alleging Father hit her several
times after they got into an argument. Father denied hitting Mother but told the
investigating police officers that he had pushed her so he could leave the hotel
room and rejoin the charity event. Father was arrested and charged with
2
misdemeanor assault at the time.2
In November 2017, Mother filed an Original Counterpetition in Petition to
Adjudicate Paternity (1) stating it is in Norman’s best interest to appoint Mother as
sole managing conservator; (2) stating Father engaged in a history or pattern of
committing family violence during the two-year period preceding the filing of this
suit; (3) requesting that Father be ordered to pay child support retroactive to
Norman’s birth; (4) requesting that the parties be ordered to attend a parent
education and family stabilization course; and (5) requesting the appointment of an
amicus attorney for Norman.
In December, Father filed an amended Petition in Suit Affecting the Parent-
Child Relationship (1) stating that it is in Norman’s best interest to appoint Father
as the sole managing conservator with the exclusive right to designate the primary
residence; and (2) requesting that he be appointed temporary sole managing
conservator.
In August 2018, the trial court considered Father’s Motion for Child
Custody Evaluation and found that a child custody evaluation was appropriate and
was in the best interest of the child.3 Therefore, the trial court signed an Order for
Child Custody Evaluation in September 2018 (1) appointing clinical psychologist,
Dr. Laurence Abrams, as custody evaluator; and (2) ordering Dr. Abrams to
conduct a child custody evaluation pursuant to section 107.104 of the Texas
Family Code “regarding the circumstances and condition of the child the subject of
2
While this custody case was pending, the Galveston County Criminal District Attorney
(Tex. Gov’t Code Ann. § 44.001) dismissed the charges because Mother did not want to pursue
charges against Father. Mother testified that, although the assault occurred, she decided to not
pursue charges against Father because he offered to drop the custody case in exchange for her
not pursuing the assault charges.
3
The child’s amicus attorney also asked for the appointment of an expert custody
evaluator.
3
this suit, each party to this suit, and the residence of any person requesting
conservatorship of, possession of, or access to a child the subject of this suit.”
Mother and Father tried to mend their dating relationship and reconcile
several times during the pending case up until the beginning of 2019, but they were
unsuccessful. At some point, Mother started dating another man, and Father
continued dating J.R. with whom he was still in a relationship at the time of trial.
On January 16, 2020, Father filed a “Motion for Leave to Late Supplement
194 Request for Disclosure, or in the Alternative Motion for Continuance.” The
motion stated that Father “through clerical error failed to include the court ordered
child custody evaluator in his response to [the] request for disclosure” and that
Father is “seeking leave to designate [Dr. Abrams] as an expert witness[]” because
his testimony is essential to the claims at issue and Dr. Abrams “has relevant
knowledge of the circumstances of the child, [Father and Mother], and relevant
facts of the case.” Father also alleged that the “request sought does not unfairly
surprise or unfairly prejudice [Mother], assert a new substantive matter that
reshapes the nature of the case, nor does it detrimentally affect [Mother]’s
presentation of their case.” Father further argued that all parties had been aware of
Dr. Abrams’ court ordered designation as custody evaluator for 15 months. In the
alternative, Father sought a continuance (1) “to allow opposing parties to conduct
discovery regarding any new information presented;” and (2) because Father
“needs additional time as the court ordered custody evaluator has yet to submit a
written report as ordered or provided an indication of what his recommendation
shall be.”
Four days before trial on January 23, 2020, the trial court held a hearing on
Father’s motion. Father argued that his failure to include Dr. Abrams in his
response to the request for disclosure was a “clerical error” and there is no unfair
4
surprise because (1) Dr. Abrams is the court-appointed custody evaluator; (2) all
parties have been able to talk to him; (3) all parties have known he would testify;
(4) “[e]verybody has met this expert, had dinner with him, found out the substance
of his recommendation;” and (5) all parties had “ample opportunity, if they wanted
to depose him, they could have whether he’s designated as an expert or not.”
The amicus attorney stated that she and the parties’ attorneys had a dinner
meeting with Dr. Abrams and certainly knew about him but because Dr. Abrams
was not designated, “it stopped one party from actually noticing a deposition of
him. And — and he’s been taking new information all the way up until at least
Monday, because they had a meeting on Monday. So — and I don’t think
[Mother’s attorney] is aware of that fact. I became aware of it on Tuesday.” The
amicus attorney stated that a continuance would be detrimental to Norman because
he “has been in limbo for some time and . . . [Mother and Father] are doing nothing
but fighting more with each other, and it’s not getting better.”
Mother argued against granting Father’s motion stating, among other things,
that (1) she has a right to rely on all parties following discovery rules; (2) although
Dr. Abrams had been appointed in 2018, Father “didn’t bother to designate him as
an expert”; (3) when she supplemented her expert, Dr. Silverman, Father moved to
exclude her expert yet “still didn’t designate Dr. Abrams”; and (4) Dr. Abrams
continues changing his mind regarding his recommendation.
After hearing the parties’ and the amicus attorney’s arguments, the trial
court denied Father’s motion and stated: “So based on the best interest of the
child, which I believe is to have this trial sooner rather than later, and also on by
[sic] representation by [Mother] that she will not call her expert to testify, I am not
granting — I’m denying [Father’s] Motion for Leave to Untimely Designate.” Dr.
Abrams submitted post-hearing reports to the trial court and to the parties which
5
seem to equivocally recommend Father “to have primary custody” of Norman.
A jury trial was held from January 27, 2020, to February 6, 2020, to
determine conservatorship of the child and attorney’s fees. Before voir dire
commenced on January 27, 2020, the trial court heard Father’s motion to
reconsider the trial court’s ruling on his motion for leave to late supplement the
request for disclosure which he had filed at midnight the day of trial. In support of
his motion to reconsider, Father argued that his November 25, 2019 “Motion for
Order of Party to Pay Court Ordered Fees to Expert and Objection to Respondent’s
Designation of a Supplemental Expert” shows that he “informally” disclosed Dr.
Abrams and that “he was likely to testify” as an expert because the motion states
that Dr. Abrams (1) is an expert; (2) will testify in court; and (3) “stated verbally
that he is recommending [Father] to be the parent with the right to determine
domicile of the child the subject to this suit.” Father argued that it is “imperative
that the jury hears” Dr. Abrams “make a recommendation for” Father and there is
no unfair surprise or unfair prejudice because Mother knew since November 2019
“the substance of his recommendation” and “should have asked to depose him.”
In response, Mother argued that Dr. Abrams (1) filed “a report two hours
after being told that he was no longer going to be an expert witness,” and (2) did
not follow the rules and requirements of the Texas Family Code 107.109, so that
“he would then have to be excluded because he didn’t follow the rules.” Mother
also renewed the objections she made at the previous hearing to letting Dr. Abrams
testify, stating that had Dr. Abrams been designated, she “would have deposed
him. [She] would have gotten his deposition over to Dr. Silverman and [she]
would have had Dr. Silverman down here to tell the Court and this jury why Dr.
Abrams might need to retire.”
The amicus attorney argued that the “Rules of Civil Procedure are pretty
6
clear . . . on experts . . . and on supplementation of people who are going to testify
at the time of trial” irrespective of whether they have been appointed by the court.
The amicus attorney also argued that the trial court’s earlier ruling “should remain
the same,” but if the court were to allow Dr. Adams to testify, then “everybody”
should be given time to depose him. After hearing argument, the trial court denied
Father’s motion to reconsider and trial proceeded. Father presented various
evidence and testimony from numerous witnesses, including his family, friends,
employees, current girlfriend J.R., Mother, and Mother’s parents. Mother
presented evidence and called one witness: Father’s ex-girlfriend who also is the
mother of his teenage son. After considering the evidence and testimony
presented, the jury decided that Mother should be appointed sole managing
conservator of Norman and awarded Mother $30,000 in trial attorney’s fees.
A bench trial was then held on February 7, 2020, to determine “nonjury
issues,” such as Father’s visitation schedule, retroactive child support, health
insurance, and amicus attorney’s fees. The trial court signed an Order in Suit
Affecting the Parent-Child Relationship on March 9, 2020. Father filed a request
for findings of fact and conclusions of law on March 30, 2020. He filed a motion
for new trial on April 2, 2020, and a notice of past due findings of fact and
conclusions of law on April 21, 2020. Father filed a timely notice of appeal on
June 2, 2010.
ANALYSIS
I. Exclusion of Expert Testimony
In his first issue, Father contends that the trial court abused its discretion by
excluding Dr. Abrams’ testimony at trial because Father showed “he had good
cause for the late disclosure” and “showed that there was no unfair surprise” or
unfair prejudice to Mother. Father contends the trial court’s error caused an
7
improper judgment requiring reversal.4
A. Standard of Review and Applicable Law
We review a trial court’s exclusion of evidence under the abuse of discretion
standard. JBS Carriers, Inc. v. Washington, 564 S.W.3d 830, 836 (Tex. 2018);
Caffe Ribs, Inc. v. State, 487 S.W.3d 137, 142 (Tex. 2016). A trial court abuses its
discretion when it acts without reference to guiding rules and principles so that its
ruling is arbitrary or unreasonable. See Caffe Ribs, 487 S.W.3d at 142; Low v.
Henry, 221 S.W.3d 609, 614 (Tex. 2007). When reviewing matters committed to
the trial court’s discretion, a reviewing court may not substitute its own judgment
for that of the trial court. Barnhart v. Morales, 459 S.W.3d 733, 742 (Tex. App.—
Houston [14th Dist.] 2015, no pet.); Caffe Ribs, 328 S.W.3d 919, 927 (Tex. App.—
Houston [14th Dist.] 2010, no pet.). Thus, the question is not whether the appellate
court would have admitted the evidence. Barnhart, 459 S.W.3d at 742. Rather, a
reviewing court will uphold the trial court’s evidentiary ruling if there is any
legitimate basis for the ruling, even if that ground was not raised in the trial court.
Id.; Hooper v. Chittaluru, 222 S.W.3d 103, 107 (Tex. App.—Houston [14th Dist.]
2006, pet. denied) (op. on reh’g). Therefore, we examine all bases for the trial
court’s decision that are suggested by the record or urged by the parties. Barnhart,
459 S.W.3d at 742; Hooper, 222 S.W.3d at 107.
Even if the trial court abused its discretion in excluding evidence, the error is
not reversible unless it “probably caused the rendition of an improper judgment.”
JBS Carriers, Inc., 564 S.W.3d at 836; see also Tex. R. App. P. 44.1(a)(1) and
4
We note that Father’s brief lists five issues in a section of his brief titled “Appellants’
Issues Presented.” However, the “Argument” section of Father’s brief contains only two issues.
Within his first issue, Father presents arguments that correlate with issues one through four listed
in the “Appellants Issues Presented” section. We have addressed Father’s arguments as he
presents them in his first issue of his “Argument” section.
8
Caffe Ribs, 487 S.W.3d at 144-45. The supreme court has recognized the
impossibility of establishing a specific test for determining harmful error and,
therefore, has “entrusted the matter to the sound discretion of the reviewing court.”
Caffe Ribs, 487 S.W.3d at 145; State v. Cent. Expressway Sign Assocs., 302
S.W.3d 866, 870 (Tex. 2009). In making this determination, the court must review
the entire record. Cent. Expressway Sign Assocs., 302 S.W.3d at 870; Barnhart,
459 S.W.3d at 742. The complaining party does not have to prove that, but for the
exclusion of evidence, a different judgment necessarily would have resulted. JBS
Carriers, Inc., 564 S.W.3d at 836; Cent. Expressway Sign Assocs., 302 S.W.3d at
870. The complaining party must only show “that the exclusion of evidence
probably resulted in the rendition of an improper judgment.” Cent. Expressway
Sign Assocs., 302 S.W.3d at 870; Barnhart, 459 S.W.3d at 742. Generally, if
erroneously excluded evidence was “crucial to a key issue,” then the error was
likely harmful, i.e., it probably caused the rendition of an improper judgment,
unless the evidence was cumulative or the rest of the evidence was so one-sided
that the error likely made no difference in the judgment. JBS Carriers, Inc., 564
S.W.3d at 836; Caffe Ribs, 487 S.W.3d at 145.
During written discovery, a party may request disclosure of any testifying
expert. See Tex. R. Civ. P. 194.2(f). When responding to written discovery, a
party must make a complete response. Tex. R. Civ. P. 193.1. If a party learns that
his response is incomplete or incorrect when made or is no longer complete and
correct, the party has an affirmative duty to amend or supplement his response.
See Tex. R. Civ. P. 193.5(a). “An amended or supplemental response must be
made reasonably promptly after the party discovers the necessity for such a
response”; unless otherwise provided by rules, it is presumed that such a response
made less than 30 days before trial is not made reasonably promptly. Tex. R. Civ.
9
P. 193.5(b).
A party who fails to disclose information concerning a nonparty witness in a
timely manner in response to a discovery request may not offer that witness’s
testimony unless the court finds there was good cause for the failure or the failure
did not unfairly surprise or unfairly prejudice the other party. Tex. R. Civ. P.
193.6(a). Thus, Rule 193.6 mandates the exclusion of witnesses who had been
disclosed or identified in an untimely manner unless one of two conditions are
shown: (1) that the party had good cause for not responding sooner; or (2) that the
failure to disclose will not unfairly surprise or prejudice the other party. See id.The burden of establishing good cause or the lack of unfair surprise or unfair
prejudice is on the party seeking to introduce the evidence or call the witness. Tex.
R. Civ. P. 193.6(b).
B. Unfair Surprise or Unfair Prejudice
Father first argues that the trial court abused its discretion in excluding Dr.
Abrams’ testimony because he offered the trial court “rock-solid evidence” that
calling Dr. Abrams would not result in unfair surprise or unfair prejudice. In that
regard, Father claims:
One could not conjure up a clearer textbook example of a late-
disclosed witness not being a surprise to any party, than Dr. Abrams.
This is so because not only had he been appointed by the court for
over a year before trial, he had conducted interviews, tests and
observations of both parties and their child. And [Mother] had been
ordered by the court to pay 25% of Dr. Abrams’ fee. It is simply not
logical to conclude that [Mother] was unfairly surprised or unfairly
prejudiced by the child custody evaluator who[m] she had met three
or four times and had paid money.
(internal record citations omitted).
Based on the record before us, we cannot conclude that the trial court abused
10
its discretion (1) by finding that Father failed to establish a lack of unfair surprise
or unfair prejudice and (2) excluding Dr. Abrams’ testimony. With respect to
unfair prejudice, Father never mentioned unfair prejudice (except to recite Rule
193.6) during his arguments to the court. Instead, he only argued that Mother was
not untimely surprised and solely argued there is a lack of unfair surprise.
During the January 27, 2020 hearing on his motion to reconsider, Father
again focused on the lack of surprise and only twice mentioned unfair prejudice in
a conclusory manner. First, Father stated that “the two issues are unfair surprise
and prejudice” but then proceeded to argue lack of unfair surprise because Mother
knew of Dr. Abrams. Second, Father concluded his lack of unfair surprise
argument by stating, “There’s no unfair surprise and there’s no prejudice when she
had knowledge of all these go [sic] facts.” Father admits as much in his briefing
when he states, “little mention, if any, was made of the fact that allowing Dr.
Adams to testify would not result in unfair prejudice to” Mother.5
Therefore, Father has not preserved a complaint that the trial court
erroneously concluded he failed to establish lack of prejudice. See In re C.F.M.,
No. 05-16-00285-CV, 2018 WL 1704202, at *10 (Tex. App.—Dallas Apr. 9, 2018,
pet. denied) (mem. op.) (“Father did not present this argument in the trial court.”);
Jacobs Eng’g Grp., Inc. v. Elsey, 502 S.W.3d 460, 466 n.6 (Tex. App.—Houston
[14th Dist.] 2016, no pet.) (Appellant “did not make this argument in the trial
court. Consequently, the argument was not preserved and we do not address it.”);
Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.—Houston [14th Dist.]
2005, pet. denied) (“To have preserved error, a party’s argument on appeal must
comport with its argument in the trial court.”). Additionally, Father conflates
5
Mother argued unfair prejudice in light of the proximity of trial and her lack of
resources, especially compared to Father’s resources.
11
unfair surprise and unfair prejudice. Mother’s general knowledge of Dr. Abrams
does not equate to a lack of unfair prejudice.
On appeal, Father asserts that he established a lack of unfair surprise because
(1) Dr. Abrams had been appointed as a custody evaluator over a year before trial;
(2) in a November 25, 2019 motion, Father stated that (a) Mother “has failed to pay
fees ordered by the Court to be paid to the Court ordered expert, Dr. Lawrence
Abrams,” (b) “Dr. Abrams will be submitting his final report to the Court and
counsel and will testify as an expert in Court to report on his nearly 2 year
evaluation,” and (c) Dr. Abrams “has stated verbally that he is recommending
[Father] to be the parent with the right to determine domicile of the child the
subject to this suit;” (3) Mother has met Dr. Abrams several times; (4) Dr. Abrams
“had conducted interviews, tests and observations of both parties and their child”;
(5) in his Motion for Expert Witness to Appear Telephonically, Father stated he
“respectfully requests permission from the Court to allow the Court designated
expert witness, Dr. Laurence Abrams, to appear telephonically for a Motion to
Modify Temporary Orders on December 03, 2019 at 9:30 a.m.”; and (6) at the time
the trial court appointed Dr. Abrams in September 2018, it ordered Mother to pay
25 percent of Dr. Abrams’ fee.
We note that in the trial court, Father did not argue lack of unfair surprise
based on the last three contentions, but even if he had done so, it would not change
our conclusion that the trial court did not abuse its discretion in finding that Father
failed to establish a lack of unfair surprise. Instead, Father focused his argument in
the trial court on claiming that everyone knew of Dr. Abrams, talked to him, knew
that he would testify, and “found out the substance of his recommendations.”
Father additionally argued (at the motion to reconsider hearing) that Mother could
not be surprised because he stated in his November 25, 2019 motion that Dr.
12
Abrams is “an expert, he’s going to testify, and here’s the substance of his
recommendation.”
To counter Father’s argument, Mother stated, among other things:
Your Honor, I have a right, as counsel, to rely on the fact that
everybody follows the rules. As you know, I’m up against three
lawyers, including the party who’s a lawyer on the other side. And as
they pointed out, Dr. Abrams was appointed by this Court to do an
investigation in 2018. Yet, all three lawyers didn’t bother to designate
him as an expert. We’ve supplemented repeatedly. When I
supplemented and said I was going to designate . . . Dr. Silverman,
they ran down here with a Motion to Exclude because of a late
designation and, yet, they still didn’t designate Dr. Abrams.
Dr. Abrams, from what I learned today, is still changing his
mind. I didn’t have an opportunity to depose. When I didn’t see him
on the list, I will tell you, Your Honor, I assumed they were concerned
about his wishy-washiness as well, because he keeps changing his
mind and I didn’t see this and then we point out that he did have it,
and, well, I want to look at this. And I just — I have a right to rely on
a lawyer’s designations, and they didn’t do it. And to then wait until
the — until 4:00 o’clock on the afternoon before pretrial and say,
oops, yeah, we didn’t do it, now we want to designate him, it’s unfair.
Is it a surprise that Dr. Abrams is out there, no. But I knew he
was out there this whole time and I didn’t designate him because I
don’t plan to call him. So when they know he’s out there and they
want to designate — or call him, then they should have designated
him. And it’s completely unfair to my client to now be two days
before trial with — with this out there.
And I also want to point out one last thing. My client’s
resources are about 5 percent of opposing counsel. So when he
doesn’t designate his expert, why in the world would I spend
thousands and thousands of my client’s money that needs to go to [the
amicus attorney] to depose someone that they didn’t bother to
designate.
* * *
So I designated an expert with the anticipation that they would
designate Dr. Abrams. They didn’t do it. So I never deposed Dr.
13
Abrams to be able to take that deposition and give to Dr. Silverman to
review and to then come into testify as to what he felt were
inconsistencies and unrational (sic) beliefs. All of that. I didn’t need
to do — I didn’t do it because my client doesn’t have the money to do
it and because they didn’t designate.
The trial court could reasonably have concluded that Father failed to prove lack of
unfair surprise. Just because all parties knew that Dr. Abrams had been appointed
in 2018 and met with Dr. Abrams several times does not mean that Mother was not
unfairly surprised by Father’s untimely designation concerning his proposed
testimony at trial. Mother and the amicus attorney knew Dr. Abrams conducted
interviews and tests, but they chose to not designate him as an expert (Mother even
hired and designated her own expert). When Father did not make, amend, and
supplement his discovery response, Mother appropriately assumed that Father also
did not intend to designate him. Further, the trial court order that Mother pay 25%
of his fee is not evidence that he would be called as an expert witness by Father;
therefore, it is no proof that Mother was not unfairly surprised.
Similarly, neither Father’s November 25, 2019 motion, which stated that Dr.
Abrams would testify at trial, nor Father requesting in his November 26, 2019
motion “permission from the Court to allow” Dr. Abrams to appear telephonically
for a motion to modify temporary orders in early December 2019 proves that
Mother was not unfairly surprised. Based on the facts of this case, Mother was
justified in concluding that Father did not intend to call Dr. Abrams when Father
did not follow through and designate him as a testifying expert. Although Mother
acknowledged that it is not “a surprise that Dr. Abrams is out there,” she
nonetheless expressed unfair surprise to his late designation as a testifying expert.
She also stated that when she did not see Dr. Abrams designated, she assumed that
Father was “concerned about his wishy-washiness as well, because he keeps
changing his mind.” Based on the record here, we conclude the trial court did not
14
abuse its discretion in finding that Father failed to establish a lack of unfair
surprise.
C. Good Cause
Father next contends that he established “he had good cause for the late
disclosure” of Dr. Abrams. In that regard, Father asserts that the “tardiness of Dr.
Abrams’ report was evidence of good cause for [Father] to supplement him late
and to allow him to testify at trial.”
Besides the fact that Father failed to cite any authority for his assertion that
the tardiness of Dr. Abrams’ report constitutes good cause for the failure to timely
amend, or supplement his discovery response, Father never made this argument in
the trial court. Therefore, Father failed to preserve this complaint. See Jacobs
Eng’g Grp., 502 S.W.3d at 466 n.6; Wohlfahrt, 172 S.W.3d at 639-40; In re
C.F.M., 2018 WL 1704202, at *10. Father instead told the trial court that his late
designation “was a clerical error and as soon as [h]e found out about it, [h]e filed
[his] motion”. However, Father does not argue on appeal that his clerical error
constitutes good cause for his untimely designation of Dr. Abrams. Therefore,
Father’s contention is waived and presents nothing for our review.
D. Best Interest
Although unclear, it seems that Father also complains that the trial court did
not take the child’s best interest into account when it excluded Dr. Abrams’
testimony. Father states that (1) this court recognized that “the best interest of a
child may be a factor influencing a trial court’s decision on procedural issues”; (2)
“[i]n deciding what is in the best interest of the child, a court must be well-
informed as to the surrounding circumstances”; and (3) the trial court here failed to
“explain how or why it was in the child’s best interest to start trial at its then
15
current setting as opposed to a day or week later.”
We acknowledge that we have stated that the best interest of the child may
be a factor influencing a trial court’s decision on procedural issues. See Van
Heerden v. Van Heerden, 321 S.W.3d 869, 878 (Tex. App.—Houston [14th Dist.]
2010, no pet.). However, a party cannot ignore the rules of civil procedure and
then argue best interest of the child to try to avoid the consequences of having
failed to abide by the rules. After all, the discovery rules apply to family law
cases, and there are consequences if these rules are not followed. Rule 193.6 has
several safeguards preventing automatic exclusion, but Father here failed to avail
himself of these safeguards.
Father heavily relies on our opinion in Van Heerden, but that case is
distinguishable. There, we stated that the mother’s “disclosure responses were
sufficient to satisfy” Rule 194.2 and concluded that the trial court abused its
discretion in excluding all of her fact witnesses because she actually complied with
the discovery rules. Id. at 876. Only in the context of a harm analysis determining
whether the trial court’s abuse of discretion probably caused the rendition of an
improper judgment did we state that (1) “the best interest of the child may be a
factor influencing a trial court’s decision on procedural issues” and (2) “[i]n
deciding what is in the best interest of the child, a court must be well-informed as
to the surrounding circumstances.” Id. at 878. In this case, the trial court has not
abused its discretion by excluding Dr. Abrams’ testimony under Rule 193.6, and
we are not conducting a harm analysis. Further, we found harm in Van Heerden
because the trial court’s error in striking all of the mother’s fact witnesses barred
her from presenting any evidence at trial, other than her own testimony, thereby
16
stifling her ability to present the merits of her case.6 Id. at 879.
Father also complains that the trial court did not “explain how or why it was
in the child’s best interest to start trial at its then current setting as opposed to a day
or week later.” However, there is no evidence in the record that trial would only
have been postponed for a day or a week as Father seems to presume. There is no
guarantee that (1) Dr. Abrams would be immediately available for a deposition; (2)
Mother’s expert would be available to quickly review the deposition; (3) there
would be a trial date available at any given time for a two-week trial; (4) Dr.
Abrams and Dr. Silverman would be available to testify at a newly scheduled trial;
(5) the parties’ attorneys and the amicus attorney would be available and not
already scheduled to represent other clients in already scheduled trials; and (6) all
other witnesses would be available at a new trial date. Additionally, Father
overlooks that the trial court took into account the amicus attorney’s assessment
that postponing trial would be detrimental to Norman because he “has been in
limbo for some time and . . . [Mother and Father] are doing nothing but fighting
more with each other, and it’s not getting better.” This assessment from a court-
appointed advocate warranted the trial court’s consideration.
Based on the record before us, we conclude that the trial court acted within
its discretion when it excluded Dr. Abrams’ testimony because Father failed to
establish good cause, a lack of unfair surprise, or a lack of unfair prejudice. We
overrule the first issue.
II. Attorney’s Fees
In his second issue, Father challenges the attorney’s fees awarded to Mother
asserting the $30,000 award is not supported by legally sufficient evidence. He
6
We also specifically stated that our holding was based “on the peculiar facts” that case
presented. Id.17
claims that he may “raise an insufficiency-of-the evidence argument for the first
time on appeal” pursuant to Texas Rule of Civil Procedure 324(a) and (b) and
Texas Rule of Appellate Procedure 33.1(d) because “the jury’s answers to the
questions on attorney’s fees in a SAPCR suit are merely advisory” and “the
awarding of attorney’s fees in SAPCRs cases is within the discretion of the trial
court.” Assuming without deciding that Father may raise his complaint on appeal
because the attorney’s fees actually were awarded by the trial court, we conclude
the complaint is without merit.
A. Standard of Review and Applicable Law
Trial courts have broad discretion to award attorney’s fees in suits affecting
the parent-child relationship. In re K.A.M.S., 583 S.W.3d 335, 349 (Tex. App.—
Houston [14th Dist.] 2019, no pet.); see also Tex. Fam. Code Ann. § 106.002(a);
Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002). However, an attorney’s fees award
must be supported by evidence that the fees are reasonable and necessary. In re
K.A.M.S., 583 S.W.3d at 349.
The Supreme Court of Texas clarified that it “intended the lodestar analysis
to apply to any situation in which an objective calculation of reasonable hours
worked times a reasonable rate can be employed.” Rohrmoos Venture v. UTSW
DVA Healthcare, LLP, 578 S.W.3d 469, 497-98 (Tex. 2019). Although
contemporaneous billing records generally are not required, legally sufficient
evidence to establish reasonable and necessary fees needs to include a description
of the particular services performed, the identity of each attorney who and
approximately when that attorney performed the services, the reasonable amount of
time required to perform the services, and the reasonable hourly rate for each
attorney performing the services. See id. at 497-98, 501-03; In re K.A.M.S., 583
S.W.3d at 349. Multiplying the reasonable hourly rate by hours reasonably
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necessary to accomplish necessary tasks yields a base lodestar figure, which
constitutes a presumptively reasonable and necessary fee for prosecuting or
defending the prevailing party’s claim through the litigation process. In re M.L.,
No. 14-19-00037-CV, 2021 WL 281071, at *5 (Tex. App.—Houston [14th Dist.]
Jan. 28, 2021, no pet.) (mem. op.); see also Rohrmoos Venture, 578 S.W.3d at 498-
502 and In re K.A.M.S., 583 S.W.3d at 349. An amount incurred or contracted for
by a claimant is not conclusive evidence of reasonableness or necessity; “[t]he fee
claimant still has the burden to establish reasonableness and necessity.” Rohrmoos
Venture, 578 S.W.3d at 487-88; In re M.L., 2021 WL 281071, at *5.
B. Application
Father argues that the testimony of Mother’s attorney, S.P., constitutes
legally insufficient evidence to support Mother’s attorney’s fees award because
S.P. (1) “provided no details about the work done, how much time was spent on
the tasks, and how she arrived at the total fees in [Mother]’s case;” and (2) did not
“offer any contemporaneous billing records.” S.P. testified as follows to establish
reasonable and necessary attorney’s fees:
My name is [S.P.]. I’m an attorney. I’m licensed to practice
law in the State of Texas. I’ve been licensed in the state of Texas
since November of 1998. My practice is solely in the area of family
law and child welfare law. I am in good standing with the State Bar
of Texas. I am also board certified in family law and I’m also board
certified in child welfare law. I am familiar with the fees charged in
this area with my similar qualifications. I contracted with [Mother] at
the rate of $400 per hour and I honored that throughout this case.
[Mother] has been able to pay me a total of $12,000 during this case
and we have more than earned that. I think just being here has been
more than that time. My hourly rate, like I said, is $400 per hour. It
is a fair and reasonable and necessary amount. At this point, we have
reached an agreement. I am the firm owner and we entered an
agreement with [Mother] that I would limit my fees to $30,000 total in
this case. I will tell you that just the hours of being here in court,
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we’ve had — and preparing for this trial, we had, in just the last two
weeks, over 80 hours of my time has been spent in court and out of
court, all the way there and that alone would be over $32,000. I’ve
had paralegals in and out who have been working on the case as well
as my associate attorney. However, we have agreed and have
discounted all of those fees to zero.
And if this case had to go up on appeal, my firm charges
$20,000 for the work to get the case briefed and to the appellate court
and I believe that’s a reasonable fee for appeals work. And if the case
was to be taken from the appellate court all the way up to the Supreme
Court, I believe that our fees would be an additional $10,000 on top of
that and I believe that all of those fees are fair and reasonable and
necessary for [Mother] to defend herself in this case.
Father correctly states that S.P. did not offer billing records. However, this does
not mean that the trial court had insufficient evidence of the particular services
performed, the identity of each attorney who and approximately when that attorney
performed the services, the reasonable amount of time required to perform the
services, and the reasonable hourly rate for each attorney performing the services.
See Rohrmoos Venture, 578 S.W.3d at 497-98. S.P. testified that she has been an
attorney for over 20 years, she is board certified in family and child welfare law,
she is “familiar with the fees charged in this area with [her] similar qualifications,”
and her hourly rate of $400 is reasonable.7 Although S.P. did not provide the
specific number of hours she spent representing Mother during pretrial and trial
versus trial preparation (stating she spent “in just the last two weeks, over 80 hours
of [her] time” in court and in trial preparation), she presented facts tending to show
that (1) within a specific period of time, she spent a specific number of hours
working on this case, (2) other members of her firm worked additional hours, (3)
their hours had been reduced to zero, (4) additional hours had been spent, and (5)
she had entered into an agreement with Mother for a flat fee arrangement based on
7
Father did not object to S.P.’s testimony that an hourly rate of $400 for a board certified
attorney in family and child welfare law is reasonable.
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these facts. Therefore, the trial court did not abuse its discretion when it concluded
these agreed upon discounts for a successful trial provide evidence of reasonable
and necessary attorney’s fees. See Rohrmoos Venture, 578 S.W.3d at 497-99.
Father introduced billing records showing that his lead counsel spent two
hours at the January 23, 2020 pretrial hearing on Father’s motion for leave to late
supplement Dr. Abrams and 75.2 hours in trial. This amounts to a total of 77.2
hours excluding any time for trial preparation.
Further, the trial court presided over the January 23, 2020 pretrial hearing as
well as the entire trial from January 27, 2020, to February 7, 2020. Thus, the trial
court had the opportunity to directly observe (1) the number of hours S.P. and the
other attorneys spent in trial representing their clients; (2) what particular services
S.P. performed, i.e., representation during pretrial and trial proceedings; (3) when
S.P. performed the services; (4) that S.P. was the only attorney who performed
these services; and (5) the amount of time required for S.P. to successfully perform
those services. Multiplying the number of hours spent in the trial court alone (as
stated in Father’s attorney’s billing records admitted into evidence) by S.P.’s
hourly rate of $400 amounts to $30,880.
While somewhat unconventional in that the evidence to establish reasonable
and necessary fees in this case was not solely presented by S.P., there nonetheless
was legally sufficient evidence before the trial court to support Mother’s attorney’s
fees award. Based on the record before us, we determine there is legally sufficient
evidence to support the attorney’s fees awarded to Mother. We conclude the trial
court did not abuse its discretion in awarding the fees, and we overrule Father’s
second issue.
CONCLUSION
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We affirm the trial court’s judgment.
/s/ Meagan Hassan
Justice
Panel consists of Justices Wise, Spain, and Hassan.
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