in the Interest of D.A.C.-R. and E.M.C.-R., Children ( 2022 )

AFFIRMED in part; REVERSED in Part; SUGGEST REMITTITUR in part;
and Opinion Filed June 27, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00033-CV
IN THE INTEREST OF D.A.C.-R. AND E.M.C.-R., CHILDREN
On Appeal from the 417th Judicial District Court
Collin County, Texas
Trial Court Cause No. 417-56020-2018
MEMORANDUM OPINION
Before Justices Schenck, Carlyle, and Garcia
Opinion by Justice Garcia
This is an appeal from a final judgment in an original suit affecting the parent–
child relationship. Based on a jury’s verdict, the trial judge appointed Mother as sole
managing conservator of the two children involved, appointed appellant Father as
possessory conservator, and awarded Mother attorney’s fees. On appeal, Father
raises three issues in which he argues jury-charge error, an erroneous evidentiary
ruling, and errors in the fee award. We reverse the award of appellate attorney’s fees,
suggest a remittitur as to the award of trial-level attorney’s fees, and otherwise affirm
the judgment.
I. Background
A. Facts
We draw the facts from the trial evidence viewed in the light most favorable
to the jury’s verdict.
Mother and Father met in 2011 and started dating. Their son D.A.C.-R. was
born in Cameron County in January 2013. Two weeks later, Father moved to
Vermont, where he lived and worked for over a year. Father did not allow Mother
and D.A.C.-R. to visit him during that time. In December 2013, Father was in the
Rio Grande Valley area for two weeks, and he allowed the family to see him two or
three times during that visit.
Father moved to Dallas in May 2014. He invited the family to visit him that
summer, and they moved in with him in September 2014.
In February 2016, Mother and Father’s daughter E.M.C.-R. was born in Plano.
In April 2018, Father obtained a new job as an immigration judge in
Harlingen, Texas. He did not consult Mother before he accepted the job. Father told
Mother that she could not move with him until she got a job, and she attempted to
find one but was unsuccessful. The lease on their house was coming to an end around
this same time, so Mother had to look for a new place to live. Father left for his new
job on May 13, 2018, and he left no money or support behind for his family. Mother
moved into a hotel for two days and tried to communicate with Father, but he did
not respond to her emails, calls, or text messages. Father’s father suggested that
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Mother should take the children to Mexico, where she had family and where she
generally went for a visit every summer. So she took the children to Mexico, which
she had done before, and stayed there until late July.
Although Father testified that he was very concerned when he found out that
Mother had taken the children to Mexico, Mother testified that she always told
Father where she and the children were in Mexico and that she attempted to
communicate with Father all the time. She also produced copies of text messages
that appear to show she sent him numerous text messages and photos of the children
in June and July. Father rarely responded to her text messages and never asked to
see the children.
After Mother returned from Mexico in late July 2018, she rented a house and
enrolled the children in the same day care they had been in before. Emails between
Mother and Father in July and August 2018 were admitted into evidence, and they
show that the parties disagreed about what was best for the children.
In September 2018, Father filed a suit in Cameron County seeking custody of
the children. He obtained a writ of attachment, and constables collected the children
and delivered them to Father. There were three days of hearings in the Cameron
County case, and Mother had a supervised visit with the children while the case was
pending. Father later dismissed the Cameron County case and filed this case in
Collin County.
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B. Procedural History
In this case, both Mother and Father filed pleadings requesting to be appointed
the children’s sole managing conservator. Mother also sought the immediate return
of the children to her. Father testified at trial that the trial judge ordered him to return
the children to Mother and that he complied.
The trial judge signed temporary orders in which she found that Father had a
history or pattern of committing family violence during the suit or during the two
years before the suit was filed.
Father moved to recuse the trial judge, and that motion was granted.
Mother moved to enforce the child-support provisions of the temporary orders
and to hold Father in contempt. The new presiding trial judge heard the motion
shortly before trial but did not sign an order until after trial.
At a pretrial discussion of the jury charge, Father asked for questions that
would have allowed the jury to appoint the parents as joint managing conservators.
When Mother opposed his request, Father asked to amend his pleadings, if
necessary, to support joint-managing-conservatorship questions. The trial judge
ruled that she would “carry [Father’s request] with trial.”
During the two-day trial, the trial judge admitted the temporary orders into
evidence over Father’s objection.
After both sides closed, the trial judge ruled that no evidence supported
submitting joint-managing-conservatorship questions to the jury and that the jury
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charge would submit only sole-managing-conservatorship questions. The charge
asked whether there was a history or pattern of committing family violence between
Father and Mother on or after May 15, 2017, and the jury answered that question,
“No.” The jury also found that Mother should be appointed sole managing
conservator of both children and made findings regarding Mother’s attorney’s fees.
The trial judge later held a one-day bench trial on issues that had not been
tried in the jury trial.
The trial judge then signed an order regarding Mother’s motion for
enforcement and an “interlocutory partial final order.” Then, over a year later, the
judge signed a final order that appointed Mother sole managing conservator,
appointed Father possessory conservator, and awarded Mother attorney’s fees as
found by the jury.
Father timely appealed.
II. Analysis
A. Issue One: Did the trial judge commit jury-charge error?
Father argues that the trial judge erred by failing to submit a question, with
appropriate instructions, that would have allowed the jury to appoint him and Mother
joint managing conservators of the children. Mother responds that Father failed to
preserve error and, alternatively, the trial judge did not err because Father’s desired
question and instructions were not supported by pleadings or evidence.
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We assume without deciding that Father preserved error and reject his first
issue on the merits, concluding that (1) Father did not argue in his opening appellate
brief that he raised joint managing conservatorship in his pleadings and (2) Father
has not shown that joint managing conservatorship was tried by consent.
1. Applicable Law
We review a claim of jury-charge error for abuse of discretion. Hinojosa v.
LaFredo, No. 05-18-01543-CV, 2021 WL 2217165, at *5 (Tex. App.—Dallas June
2, 2021, pet. denied) (mem. op.).
A trial judge must submit jury questions, instructions, and definitions that are
raised by the pleadings and the evidence. See TEX. R. CIV. P. 278; Brumley v.
McDuff, 616 S.W.3d 826, 831 (Tex. 2021). Conversely, a trial judge “must not
submit claims or affirmative defenses that the pleadings and evidence do not support,
unless the parties tried the claim or defense by consent.” Brumley, 616 S.W.3d at
831.
2. Application of the Law to the Facts
To prevail on his first issue, Father must show either that he pleaded for joint
managing conservatorship or that joint managing conservatorship was tried by
consent. See id.
Father’s opening appellate brief contains no argument that his pleadings were
sufficient to support a joint-managing-conservatorship jury charge. After Mother
pointed this out in her appellee’s brief, Father filed a reply brief in which he argued
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that he sufficiently pleaded a request for joint managing conservatorship. However,
we do not consider arguments raised for the first time in a reply brief. Hunter v.
PriceKubecka, PLLC, 339 S.W.3d 795, 803 n.5 (Tex. App.—Dallas 2011, no pet.);
see also 2218 Bryan St., Ltd. v. City of Dallas, 175 S.W.3d 58, 65 (Tex. App.—
Dallas 2005, pet. denied) (appellant may not raise new issues in reply brief, even in
response to appellee’s brief). Thus, we do not consider whether Father pleaded for
joint managing conservatorship, and Father’s first issue fails unless joint managing
conservatorship was tried by consent. See Brumley, 616 S.W.3d at 831.
Father’s brief argues that his requested jury submission on joint managing
conservatorship was supported by evidence, specifically the presumption that
appointing the parents as joint managing conservators is in the best interest of the
child. See TEX. FAM. CODE ANN. § 153.131(b). We construe his brief liberally and
treat this argument as broad enough to urge that joint managing conservatorship was
tried by consent based on the existence of the § 153.131(b) presumption.
Unpleaded issues are treated as if they had been pleaded if they are tried by
the express or implied consent of the parties. TEX. R. CIV. P. 67. An unpleaded issue
may be deemed tried by implied consent if evidence about the issue is developed
under circumstances showing that (1) both parties understood the issue was in the
case and (2) the opposing party did not properly object. See Garcia v. Nunez, No.
05-17-00631-CV, 2018 WL 6065254, at *9 (Tex. App.—Dallas Nov. 20, 2018, no
pet.) (mem. op.). An issue is not tried by consent merely because evidence regarding
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it is admitted; the record must show not evidence of the issue but evidence of trial
of the issue. Bos v. Smith, 556 S.W.3d 293, 306–07 (Tex. 2018). If the evidence is
relevant to pleaded issues as well as to unpleaded issues, there is no trial by consent
of the unpleaded issues because the evidence would not be calculated to elicit an
objection. Id. at 307. The trial court has broad discretion to determine whether an
unpleaded issue was tried by consent. Hampden Corp. v. Remark, Inc., 331 S.W.3d
489, 495 (Tex. App.—Dallas 2010, pet. denied). However, trial by consent is the
exception rather than the rule, and it should not be inferred in doubtful cases. Id.Father does not argue that any of the evidence admitted during trial was
relevant solely to joint managing conservatorship. Rather, he relies entirely on the
following statutory presumption:
It is a rebuttable presumption that the appointment of the parents of a
child as joint managing conservators is in the best interest of the child.
FAM. § 153.131(b). Father argues that this presumption is itself evidence that
supports a finding that appointing him and Mother as joint managing conservators
would have been in the children’s best interest. From this we infer a further argument
that the existence of the presumption, by itself, established trial by consent of joint
managing conservatorship.
The parties cite no authority for or against the premise that a presumption,
standing alone, can establish trial by consent. We have found no such authority
either. We have found one case in which a litigant made an argument much like
Father’s, but the court of appeals held the argument forfeited for inadequate briefing.
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See Alexander v. Alexander, No. 13-99-652-CV, 2001 WL 1000689, at *4 n.1 (Tex.
App.—Corpus Christi–Edinburg May 17, 2001, no pet.) (not designated for
publication).
Father cites two cases for the premise that a presumption is evidence. See Gen.
Motors Corp. v. Saenz ex rel. Saenz, 873 S.W.2d 353 (Tex. 1993); Tex. Employers’
Ins. Ass’n v. Elder, 282 S.W.2d 371 (Tex. 1955). The Elder case concerned the
presumption in favor of the validity of a marriage, and the opinion does say that this
presumption “is, in itself, evidence.” 282 S.W.2d at 373. In Saenz, however, the
court described the rules governing presumptions quite differently. See 873 S.W.2d
at 359. According to Saenz, a presumption shifts the burden of producing evidence
to the party against whom it operates, but once evidence contradicting the
presumption has been offered the presumption “disappears and is not to be weighed
or treated as evidence. . . . The evidence on the issue is then evaluated as it would be
in any other case. . . . The presumption has no effect on the burden of persuasion.”
Id. (internal quotations and citations omitted); see also Spillman v. Estate of
Spillman, 587 S.W.2d 170, 172 (Tex. App.—Dallas 1979, writ ref’d n.r.e.) (“A
presumption is not evidence of something to be weighed along with the evidence.”).
Several courts of appeals have held that the § 153.131(b) presumption is
subject to the Saenz analysis—that is, “once the party seeking appointment as sole
managing conservator introduces evidence to rebut the presumption, it disappears.”
Turrubiartes v. Olvera, 539 S.W.3d 524, 528 (Tex. App.—Houston [1st Dist.] 2018,
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pet. denied); accord Lide v. Lide, 116 S.W.3d 147, 152 (Tex. App.—El Paso 2003,
no pet.); In re Marriage of Robinson, 16 S.W.3d 451, 454 (Tex. App.—Waco 2000,
no pet.); In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.—San Antonio 1997, writ
denied). We have said the same, albeit in an older case without precedential value.
See Mankin v. Ledezma de la Rosa, No. 05-96-01197-CV, 1999 WL 26898, at *2
(Tex. App.—Dallas Jan. 25, 1999, no pet.) (not designated for publication) (“Once
evidence contradicting the [§ 153.131(b)] presumption is offered, however, the
presumption disappears and has no effect on the burden of persuasion.”). We note
too that the Texas Pattern Jury Charge recommends not submitting joint managing
conservatorship jury instructions under the circumstances present in this case. See
COMMITTEE ON PATTERN JURY CHARGES OF THE STATE BAR OF TEXAS, TEXAS
PATTERN JURY CHARGES: FAMILY & PROBATE ¶ 215.10 cmt. (2022) (“If both parents
seek sole managing conservatorship and neither seeks joint managing
conservatorship in the alternative, the foregoing instruction, which is based on the
rebuttable presumption in Tex. Fam. Code § 153.131, is inappropriate.”).1
We hold that the § 153.131(b) presumption, without more, does not suffice to
establish implied trial by consent of the issue of joint managing conservatorship.
Implied trial by consent is shown by the unobjected-to introduction of evidence
1
We consider the pattern jury charge as persuasive authority only. See Hollingsworth v. Parklane
Corp., No. 05-19-01576-CV, 2021 WL 1290735, at *2 (Tex. App.—Dallas Apr. 7, 2021, no pet.) (mem.
op.) (“Although pattern jury charges are not law, they are heavily relied upon by both bench and bar, . . .
and the PJC informs our analysis here.”) (internal quotations and citation omitted).
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relevant solely to an unpleaded issue. See Bos, 556 S.W.3d at 306–07. The
§ 153.131(b) presumption is not evidence. See Spillman, 587 S.W.2d at 172; see also
Saenz, 873 S.W.2d at 359. Thus, the presumption did not establish trial by consent
such that the trial judge had no discretion to conclude otherwise.
3. Conclusion
In sum, Father’s opening appellate brief does not argue that he pleaded joint
managing conservatorship, and he has not shown that the issue was tried by consent.
Accordingly, we conclude that the trial judge did not err by refusing to submit joint-
managing-conservatorship issues to the jury. We overrule Father’s first issue.
B. Issue Two: Did the trial judge commit reversible error by admitting the
temporary orders into evidence?
Father argues that the trial judge committed reversible error by admitting into
evidence a copy of the temporary orders in this case. Mother responds that any error
was harmless. As discussed below, we agree with Mother.
1. Applicable Law
We review a trial judge’s evidentiary ruling for abuse of discretion. Fleming
v. Wilson, 610 S.W.3d 18, 21 (Tex. 2020) (per curiam). We uphold the ruling if there
is any legitimate basis for it. In re A.R.M., 593 S.W.3d 358, 373 (Tex. App.—Dallas
2018, pet. denied).
Even if the trial judge abused her discretion by admitting evidence
erroneously, we reverse only if the error probably caused the rendition of an
improper judgment. See TEX. R. APP. P. 44.1(a)(1). This usually requires the
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complaining party to show that the judgment turns on the evidence erroneously
admitted. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753–54 (Tex. 1995).
In determining whether the complaining party has shown harm, we may consider
factors such as whether (1) the erroneously admitted evidence was crucial to a key
issue, (2) the erroneously admitted evidence was cumulative, (3) the other evidence
was so one-sided that the erroneously admitted evidence likely made no difference,
(4) counsel emphasized the erroneously admitted evidence, (5) there was contrary
evidence that the erroneously admitted evidence was calculated to overcome, (6) the
evidence’s proponent insisted on admitting it, and (7) the jury found damages in
excess of the evidence. See Reliance Steel & Aluminum Co. v. Sevcik, 267 S.W.3d
867, 871–74 (Tex. 2008); Nissan Motor Co. Ltd. v. Armstrong, 145 S.W.3d 131, 144
(Tex. 2004).
2. Application of the Law to the Facts
We conclude that Father has not shown that any error in admitting the
temporary orders was harmful—that is, that the jury’s verdict turned on the
temporary orders.
Father argues that admitting the temporary orders was harmful because it
contained three findings by the former presiding trial judge: (1) Father had a history
or pattern of committing family violence; (2) appointing Mother as temporary sole
managing conservator furthered the safety, welfare, and best interest of the children;
and (3) awarding Mother interim attorney’s fees was necessary for Mother to prepare
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for trial and to protect the safety, welfare, and best interest of the children. Father
urges that the following facts show the influence of the temporary orders:
• When the document was admitted, Mother specifically directed
the jury’s attention to the family-violence finding and the award
of attorney’s fees.
• Although the jury did not find that Father had committed family
violence, it did find that Mother should be appointed sole
managing conservator, just as the temporary orders did.
• The jury awarded Mother attorney’s fees, just as the temporary
orders did.
• The trial judge did not redact the findings from the temporary
orders, and she denied Father’s request to tell the jury that the
previous trial judge had been recused and the reasons for that
recusal.
We are not persuaded that the jury’s verdict turned on the findings in the
temporary orders. The most important fact in our analysis is that the jury answered
“No” to question 1:
Do you find from a preponderance of the evidence that there was a
history or pattern of committing family violence between [Father] and
[Mother] at any time during the period of May 15, 2017 and the
present?
Thus, even though Mother testified that Father struck and injured her in April 2018,
and even though the temporary orders contained a specific family-violence finding
against Father, the jury refused to find that Father had a history or pattern of
committing family violence. This suggests that the temporary orders had little if any
impact on the jury’s verdict. We also note that Mother’s attorney did not mention
the temporary orders during her closing argument.
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The other factors that Father asks us to consider do not persuade us that the
jury’s verdict turned on the temporary orders. Aside from the family-violence
finding, which the jury apparently discounted, the temporary orders contain no
specific reasons for the appointment of Mother as temporary sole managing
conservator. The jury heard ample evidence to support its sole-managing-
conservatorship finding, such as Mother’s testimony supporting the following facts:
• When Father moved from the Dallas area to the Rio Grande
Valley in May 2018, he left no money or support for Mother and
the children.
• While Mother was in Mexico during summer 2018, Father rarely
responded to text messages and never asked to see the children.
• During the pendency of the case, Father neither exercised any of
his possession of the children allowed by the court nor paid any
of the child support he was ordered to pay. Although Father had
been to court at least five times from October 2018 to the trial in
May 2019, he never asked to see the children.
• Father was verbally abusive towards Mother.
• Father drinks every night and gets very aggressive and violent
when he drinks.
• Father left loaded firearms unsupervised and regularly slept with
a loaded gun on his nightstand.
Mother also produced testimony from a friend who had children in the same
school as D.A.C.-R. The friend testified that Mother loved and cared for D.A.C.-R.
and E.M.C.-R. and that she had never known Mother to have a temper. She had never
observed the children to have bad hygiene, and Mother was very loving and attentive
with them. She also testified that she had allowed Mother to keep her own children.
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Although Father testified that Mother had a bad temper and produced
corroborating testimony from his parents, he contradicted little if any of Mother’s
evidence about his conduct and behavior discussed above. In light of the record as a
whole, we cannot conclude that the jury’s sole-managing-conservatorship finding
turned on the temporary orders.
The jury’s findings about Mother’s attorney’s fees do not show that the jury
was influenced by the temporary orders. The jury was not asked whether to award
Mother her attorney’s fees; it was asked only to find the reasonable and necessary
amounts of those fees. And the amounts that the jury found did not exceed the
evidence.
As for Father’s final points, his complaint that the trial judge did not redact
the findings from the temporary orders merely reiterates his complaint that the
temporary orders were admitted erroneously. And he cites no authority for the
premise that he should have been allowed to introduce evidence about the first trial
judge’s recusal, so we do not consider it. See TEX. R. APP. P. 38.1(i).
3. Conclusion
Any error in admitting the temporary orders was harmless, so we overrule
Father’s second issue.
C. Issue Three: Did the trial court err in making the award of attorney’s
fees and costs?
In his third issue, Father raises several different arguments challenging the
award of attorney’s fees and costs to Mother. We address each in turn
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1. Applicable Law and Error Preservation
This is a suit under Title 5 of the Family Code, so the trial judge was
authorized to award costs and reasonable attorney’s fees and expenses. See FAM.
§ 106.001; id. § 106.002(a).
The trial judge awarded Mother attorney’s fees in the amounts found by the
jury. Father asserts that the jury’s verdict on fees was only advisory, citing In re
Rodriguez, No. 13-16-00411-CV, 2017 WL 395257, at *8 (Tex. App.—Corpus
Christi–Edinburg Jan. 27, 2017, orig. proceeding) (mem. op.). Although Rodriguez
supports Father’s assertion, we decline to follow that precedent. Family Code
§ 105.002 adopts a general rule that a party may demand a jury trial unless the suit
is one in which adoption is sought or is a suit to adjudicate parentage under Chapter
160. FAM. § 105.002(a), (b). If a jury trial is held, there are certain issues on which
the trial judge may not contravene the jury’s verdict, id. § 105.002(c)(1), and certain
other issues on which the trial judge may not submit jury questions, id.
§ 105.002(c)(2). Section 105.002 does not single out attorney’s fees for any special
treatment, so we conclude that jury findings on attorney’s fees in a SAPCR should
be given the same effect as jury findings on attorney’s fees in any other civil case.2
2
Section 105.002 once included a subsection (d) that expressly made certain jury findings advisory
only. See Act of May 8, 1997, 75th Leg., R.S., ch. 180, § 1, 1997 Tex. Gen. Laws 1033, 1034. That
subsection was repealed in 2003. See Act of May 27, 2003, 78th Leg., R.S., ch. 1036, § 22, 2003 Tex. Gen.
Laws 2987, 2994.
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This brings us to error preservation. Father asserts that the awards of
attorney’s fees and costs are supported by legally and factually insufficient evidence.
He preserved his factual-insufficiency challenges by asserting them in his motion
for new trial and his supplemental motion for new trial. See TEX. R. CIV. P. 324(b).
But he did not preserve a legal-insufficiency challenge in his new-trial filings or
otherwise. See Pearcy v. Brewer, No. 05-16-00194-CV, 2016 WL 7473907, at *2
(Tex. App.—Dallas Dec. 29, 2016, pet. denied) (mem. op.) (listing ways to preserve
legal-sufficiency challenges). Thus, we limit our review to factual sufficiency.
The standard of review for a factual-sufficiency challenge is well settled.
Because Father did not bear the burden of proof on the issues of fees and costs, our
inquiry is whether there is insufficient evidence to support the jury’s findings. See
Hoss v. Alardin, 338 S.W.3d 635, 651 (Tex. App.—Dallas 2011, no pet.). We
consider all the evidence in the record and set the verdict aside only if the evidence
supporting the jury finding is so weak or the finding is so against the overwhelming
weight of the evidence that the finding is clearly wrong and unjust. Id. The jury is
the sole judge of witness credibility and the weight to be given their testimony.
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
The leading case on proving recoverable attorney’s fees is Rohrmoos Venture
v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019). Under Rohrmoos, any
party seeking to recover its fees from an opponent must prove that the requested fees
are both reasonable and necessary. Id. at 488–89. If an objective calculation of
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reasonable hours worked times a reasonable hourly rate can be employed, the
claimant must provide sufficient evidence of the reasonable hours the attorney
worked and a reasonable hourly rate. Id. at 497–98. Sufficient evidence includes, at
a minimum, evidence of (1) the particular services performed, (2) who performed
the services, (3) approximately when the services were performed, (4) the reasonable
amount of time required to perform the services, and (5) the reasonable hourly rate
for each person performing the services. Id. at 498. Generally, conclusory testimony
devoid of any real substance will not support a fee award. Id. at 501.
Contemporaneous billing records are not required but are strongly encouraged. Id.
at 502.
Contingent appellate attorney’s fees that have not yet been incurred must be
projected based on expert testimony. Yowell v. Granite Operating Co., 620 S.W.3d
335, 355 (Tex. 2020). The lack of certainty does not excuse a party seeking to
recover contingent appellate fees from the burden to provide opinion testimony
about the services she reasonably believes will be necessary to handle the appeal and
a reasonable hourly rate for those services. Id.
2. Application of the Law to the Facts
The jury made six distinct findings regarding Mother’s reasonable and
necessary attorney’s fees. First, the jury found that her fees were $85,381.25 “For
Representation in the trial court.” Then the jury made five separate findings as to
Mother’s fees for each stage of an appeal, assuming the case proceeded all the way
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to a judgment by the Texas Supreme Court. The trial court’s judgment awarded
Mother her fees based on the jury’s findings.
Father raises several arguments, and we address each in turn.
a. Mathematical Error
Father first argues that the finding of $85,381.25 as trial-level attorney’s fees
is too high because it is based on a mathematical error.
Mother’s evidence of attorney’s fees consisted of testimony by her attorney
and an exhibit that includes the same attorney’s affidavit and redacted billing
records. The affidavit contains a chart that shows (1) each legal professional who
worked on the matter, (2) the time each professional spent on the matter before trial,
(3) each professional’s hourly rate, and (4) each professional’s total “Amount” (time
× rate). The chart then presents the sum of all of the “Amounts” as $83,789.50, as
shown below:
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After this, the chart goes on to add costs of $1,856.75, add estimated trial fees of
$17,950.00, and subtract discounts and credits of $18,215.00, for a total of
$85,381.25 for trial-level attorney’s fees.
Father argues that the “Total for Professional Services Rendered” that appears
in the chart above is $2,003.00 too high because the figures in the “Amount” column
add up to only $81,786.50. Father’s point about that mathematical error is correct,
but we reject his argument overall because two other mathematical errors in the chart
more than compensate for the $2,003.00 discrepancy. Specifically, the amount
shown for Larisa Martirosova is $2,317.50 too low based on the hours and rates
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given, and the amount shown for Marilea Lewis is $.50 too low. Because these errors
more than offset the $2,003.00 discrepancy pointed out by Father, we reject his first
argument under issue three.
b. Excessive Redactions
Father’s second argument is that Mother’s evidence of her pre-trial attorney’s
fees is insufficient because the billing records she offered into evidence are too
heavily redacted to support findings of reasonableness and necessity.
Mother’s evidence of attorney’s fees consisted of trial testimony by her lead
attorney, an affidavit by the same attorney, and a set of redacted invoices covering
services rendered through May 9, 2019, which was just a few days before trial began.
The affidavit recites a litany of general tasks that Mother’s legal team performed
pre-trial, such preparing Mother’s answer and counterpetition, preparing for and
attending certain hearings, preparing and responding to discovery, and preparing for
trial. In her live testimony, Mother’s lead attorney similarly described some of the
matters that required legal services, but she did not detail how much time was spent
on any particular services. The attorney testified that the fees and expenses outlined
in her affidavit were reasonable and necessary.
The fee invoices are heavily redacted, presumably to protect attorney–client
privilege and attorney work product. See KBIDC Invs., LLC v. Zuru Toys Inc., No.
05-19-00159-CV, 2020 WL 5988014, at *22 (Tex. App.—Dallas Oct. 9, 2020, pet
denied) (mem. op.) (“[A]ttorney invoices are routinely redacted when offered into
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evidence to protect attorney–client and work-product privileges.”). In this case, the
billing entries typically identify the date of the services, the legal professional who
performed the services, the amount of time spent performing the services, and the
amount charged. The entries usually describe the tasks performed with general terms
such as “prepare,” “review,” “draft,” “call,” “email,” and the like, and the specifics
about the task are almost always redacted. The following sample is representative:
Father points out that some entries are so heavily redacted as to be virtually
meaningless, such as the following entry from December 10, 2018:
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However, on the whole, the billing entries and redactions are similar to those
we described in KBIDC Investments. See id. (“The redacted material mostly
consisted of the topic of the attorney’s conversations with the client or with co-
counsel or the topic of certain research.”); see also In re S.C., No. 05-18-00629-CV,
2020 WL 3046203, at *6 (Tex. App.—Dallas June 8, 2020, pet. denied) (mem. op.)
(redacted bills still provided the “critical information” about the services performed).
Like the appellant in KBIDC Investments, Father does not argue that any of the
redacted material was not privileged. See KBIDC Invs., 2020 WL 5988014, at *22.
And as in KBIDC Investments, Mother provided substantial information about her
legal services and fees, and her lead counsel testified and was cross-examined. See
id. at *23. Mother’s fee evidence also compares favorably to the evidence we held
sufficient in MRI Pioneer & Colorado Investment Fund, LP v. Pyatt, No. 05-18-
01399-CV, 2020 WL 4013147, at *9 (Tex. App.—Dallas July 16, 2020, pet. denied)
(mem. op.) (upholding fee award even though claimant did not introduce billing
records; counsel described the tasks performed and specified the number of hours
billed in three categories: pretrial, trial preparation, and trial). Mother’s fee invoices
are not as heavily redacted as the ones we held insufficient in THB Construction,
LLC v. Holt Texas, Ltd., No. 05-20-00020-CV, 2022 WL 123105, at *3 (Tex. App.—
Dallas Jan. 13, 2022) (mem. op.), judgm’t vacated but op. not vacated, 2022 WL
336559 (Tex. App.—Dallas Feb. 4, 2022, no pet.) (mem. op.).
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In his reply brief, Father cites cases in which other courts of appeals have held
that redactions similar to those in this case were so excessive as to deprive the billing
records of probative value. See Person v. MC-Simpsonville, SC-1-UT, LLC, No. 03-
20-00560-CV, 2021 WL 3816332, at *8–9 (Tex. App.—Austin Aug. 27, 2021, no
pet.) (mem. op.); McGibney v. Rauhauser, 549 S.W.3d 816, 821–23 (Tex. App.—
Fort Worth 2018, pet. denied). However, we are obliged to follow our own
precedents, see Chakrabarty v. Ganguly, 573 S.W.3d 413, 415 (Tex. App.—Dallas
2019, no pet.) (en banc), and we conclude that our decisions in KBIDC Investments,
In re S.C., and MRI Pioneer are controlling.
We conclude that Father has not shown that the evidence is factually
insufficient to support the jury’s finding on Mother’s reasonable and necessary pre-
trial attorney’s fees.
c. Evidence of Estimated Fees for Trial and Appeal
Next, Father argues that Mother’s evidence is insufficient to support the
$85,381.25 award of trial-level fees because that sum includes an unsupported sum
of $17,950.00 for “[e]stimated time for trial preparation and attendance for attorneys,
paralegals, and support staff from May 10, 2019 – trial.” In the same argument, he
challenges the evidentiary support for the jury’s five awards of conditional appellate
attorney’s fees, which total $40,000.00 for appeals through the Texas Supreme
Court.
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We agree with Father as to the appellate attorney’s fees. A party seeking to
recover contingent appellate attorney’s fees must provide expert testimony about the
services she reasonably believes will be necessary to defend the appeal and a
reasonable hourly rate for those services. Yowell, 620 S.W.3d at 355; see also
KBIDC Invs., 2020 WL 5988014, at *23–24 (applying Yowell and reversing award
of appellate fees based on conclusory testimony about the reasonable and necessary
fees for each stage of the appellate process). Mother introduced no evidence about
the services that would be necessary to defend any appeals, nor did she introduce
any evidence about a reasonable hourly rate for those services. Instead, her
attorney’s affidavit simply states that specified estimated amounts for handling each
phase of an appeal are reasonable and necessary. Thus, the evidence is insufficient
to support the award of appellate attorney’s fees to Mother.
We also agree with Father that the evidence is insufficient to support the “trial
preparation and attendance” component of Mother’s trial-level attorney’s fees.
Mother introduced no evidence about which professionals she expected to prepare
for and attend trial, what their reasonable hourly rates were, what tasks they would
perform, or how many hours each professional was likely to spend performing those
tasks. Instead, her attorney’s affidavit simply recites an opinion estimating that
$17,950.00 would be required for “attorneys, paralegals, and support staff” to
prepare for and attend trial. Consistent with Yowell, we conclude that Mother was
required to introduce more detailed expert opinion evidence about the services
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necessary to handle the trial and the reasonable hourly rates for those services. See
Yowell, 620 S.W.3d at 355. Because the jury’s finding of $85,381.25 in attorney’s
fees for the entirety of Mother’s trial-court representation depends in part on the
$17,950.00 Mother requested for trial preparation and attendance, we conclude that
the jury’s finding is supported by insufficient evidence.
d. Fees for Services Rendered Pre-Suit
In his next argument, Father argues that the award of trial-level attorney’s fees
is excessive because Mother’s evidence shows that about $16,000 of that sum
constitutes fees for services rendered in connection with the previous SAPCR that
Father filed in Cameron County and dismissed before filing this suit in Collin
County. He points specifically to Mother’s lead attorney’s affidavit, which contains
a chart itemizing Mother’s legal expenses. That chart includes this line:
Father contends that the $15,902.00 incurred “prior to Collin County case” refers to
work done on the Cameron County case and that those fees cannot be recovered
because there is no basis for concluding that those fees were “reasonable and
necessary for this lawsuit.”
We conclude that Father has not adequately briefed this argument. An
appellant must support his argument with appropriate citations to legal authorities.
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See TEX. R. APP. P. 38.1(i). The only authority Father cites to support his argument
is Rohrmoos Venture, which does not address the argument he makes—that the
Family Code provision authorizing an award of attorney’s fees in a SAPCR does not
permit an award of fees incurred in a different, previous SAPCR between the same
parties. Father does not cite or otherwise refer to the relevant Family Code provision,
nor does he provide a logical argument showing that his assertion is correct. Thus,
he does not demonstrate that the Family Code does not allow the recovery of fees
incurred before this suit commenced. Cf. Am. Heritage Capital, LP v. Gonzales, 436
S.W.3d 865, 879–80 (Tex. App.—Dallas 2014, no pet.) (a defendant’s fees incurred
before being joined in a case are potentially recoverable under the Texas Citizens
Participation Act), disapproved in part on other grounds by Hersh v. Tatum, 526
S.W.3d 462 (Tex. 2017).
Because this argument is inadequately briefed, we do not address it. See
Bolling v. Farmers Branch Indep. Sch. Dist., 315 S.W.3d 893, 896 (Tex. App.—
Dallas 2010, no pet.) (discussing components of an adequate appellate argument).
e. Costs
Father’s next argument challenges the costs component of the award of trial-
level attorney’s fees. Again, the jury found that Mother’s reasonable and necessary
attorney’s fees for representation in the trial court were $85,381.25. Based on the
chart in the affidavit by Mother’s lead attorney, $1,856.75 of that award consisted
of costs. Father raises two complaints about the costs evidence: (1) the billing
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invoices’ entries for expenses were almost completely redacted and (2) the chart
states that about half of the costs were incurred “prior to Collin County case.”
Like Father’s previous argument, this argument is inadequately briefed.
Father cites no legal authorities in support of his argument—not even the statute
authorizing the award of costs in a SAPCR. Accordingly, we do not address this
argument. See TEX. R. APP. P. 38.1(i); Bolling, 315 S.W.3d at 896.
f. Other Fee-Related Errors
In Father’s last argument under issue three, he argues that the trial judge erred
in two respects: (1) the judge signed an enforcement order that illegally awarded
Mother interim attorney’s fees as child support and (2) the fees awarded in the
enforcement order are duplicative of the fees awarded in the final judgment.
The following timeline puts Father’s arguments in context:
October 2018 Father filed this SAPCR, and Mother filed a counter-
petition.
January 2019 The trial judge signed temporary orders that ordered
Father to pay $14,500.00 for Mother’s attorney’s fees “as
additional child support,” plus $5,000.00 per month going
forward as interim attorney’s fees and expenses “as
additional child support.”
April 2019 Father filed a motion to vacate the temporary orders.
Mother filed a first amended motion for enforcement of
the temporary orders and requested the remedy of
contempt.
May 7, 2019 The trial judge heard Mother’s motion for enforcement
and orally found Father in contempt.
May 13–14, 2019 Jury trial.
July 2019 Father filed a motion for new trial.
August 29, 2019 Bench trial on remaining issues in the SAPCR.
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The trial judge also signed an order regarding Mother’s
motion for enforcement and request for contempt. The
order found Father in contempt and placed him on
community supervision for one year, conditioned on,
among other things, Father’s paying the $14,500.00 in
interim attorney’s fees “as additional child support” at the
rate of $1,000.00 per month.
Finally, the trial judge also signed an “Interlocutory Partial
Final Order in Suit Affecting the Parent–Child
Relationship.” This order awarded the trial-level and
contingent appellate attorney’s fees found by the jury and
contained no language categorizing those fees as child
support.
October 30, 2020 The trial judge signed the final judgment. The judgment
awarded the trial-level and contingent appellate attorney’s
fees found by the jury and contained no language
categorizing those fees as child support.
November 30, 2020 Father filed a supplemental motion for new trial.
Now we turn to Father’s arguments. First, he argues that if the enforcement
order is still in effect after the signing of the final judgment, the enforcement order
is illegal to the extent it categorizes the attorney’s fees assessed against Father as
additional child support.3 However, this error must be preserved in the trial court.
See In re A.B.P., 291 S.W.3d 91, 99–100 (Tex. App.—Dallas 2009, no pet.); see also
TEX. R. APP. P. 33.1(a). Father does not explain how he raised this error in the trial
court, and we see no such objection in the record. Although Father’s new-trial
3
Mother argues that we lack jurisdiction to consider this argument because contempt orders must be
challenged by original proceeding. See In re S.C., No. 05-19-01343-CV, 2021 WL 3671197, at *2 (Tex.
App.—Dallas Aug. 18, 2021, orig. proceeding) (mem. op.). We agree with Father that this rule is
inapplicable because Father’s argument challenges the characterization of the attorney’s fees award, not
any contempt findings.
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motions complained about the sufficiency of evidence to support the jury findings
of Mother’s attorney’s fees, Father’s complaint about the enforcement order’s
categorization of its fee award does not challenge the sufficiency of the evidence
supporting the jury’s findings and thus was not preserved by his new-trial motions.
We conclude that this point has not been preserved for appeal.4
Father’s other argument is that the trial judge improperly awarded duplicative
attorney’s fees by ordering Father to pay $14,500.00 in fees in the August 29, 2019
enforcement order and then including that same sum again in the trial-level-fees
component of the final judgment. He contends that the duplicative nature of the final-
judgment award is shown by the fact that the fee affidavit and billing records Mother
introduced into evidence purport to prove up all of Mother’s attorney’s fees in the
matter up to May 10, 2019.
Father raised this argument in the trial court during the August 29, 2019 bench
trial, and Mother’s counsel represented to the trial judge that “the jury was not asked
to consider the $14,500 that was previously awarded by this Court as part of the
enforcement action.” Father disagreed, apparently based on the chart in the fee
4
We note, however, that Father appears to be correct. We see no legal justification for characterizing
Mother’s interim attorney’s fees of $14,500 as additional child support. See generally Tucker v. Thomas,
419 S.W.3d 292, 296–97 (Tex. 2013) (discussing when a trial court is permitted to characterize an award
of attorney’s fees to a party as additional child support). Thus, it appears that the trial court is prohibited
from enforcing the award under its contempt powers. See id. We make these observations for the guidance
of the parties and the trial court in any future proceedings. See Tracy v. Tracy, 219 S.W.3d 527, 530–31
(Tex. App.—Dallas 2007, no pet.) (making similar observations under similar circumstances).
–30–
affidavit, but the trial judge then said, “I find that it was not included in the jury
request and that it was separate.”
We conclude that Father has not shown that the fee awards are duplicative
because the record shows a deduction from Mother’s trial-level attorney’s fees in the
amount of $18,215.00 with the description “[l]ess discounts/credits/amounts
previous [sic] ordered to be paid through enforcement proceeding.” (Emphasis
added). This evidence shows that the interim fees were deducted from the amount
requested by Mother. The amount deducted exceeds the fees previously awarded as
part of the enforcement action.
3. Conclusion
There is insufficient evidence to support the jury’s finding that $85,381.25
was a reasonable fee for the necessary services of Mother’s attorneys for
representation in the trial court, but there is sufficient evidence to support a lesser
award of $67,431.25. Under these circumstances, we suggest a remittitur in the
amount of $17,950.00. See TEX. R. APP. P. 46.3; David McDavid Pontiac, Inc. v.
Nix, 681 S.W.2d 831, 838–39 (Tex. App.—Dallas 1984, writ ref’d n.r.e.).
There is also insufficient evidence to support the jury’s findings of Mother’s
appellate attorney’s fees. We reverse the judgment to the extent it awards those fees
and remand for further proceedings as to that issue. See Ruff v. Ruff, No. 05-21-
00157-CV, 2022 WL 420353, at *11 (Tex. App.—Dallas Feb. 11, 2022, no pet. h.)
–31–
(mem. op.) (reversing and remanding under similar circumstances). We overrule
Father’s third issue to the extent it seeks any other relief.
III. Disposition
Having concluded that the trial court’s award of $85,381.25 for reasonable
attorney’s fees, expenses, and costs incurred by Mother is excessive by $17,950.00,
we suggest a remittitur of that amount. If within fifteen days of the date of this
opinion, Mother files in this Court a remittitur of $17,950.00 of attorney’s fees, we
will reform the trial court’s Final Order in Suit Affecting the Parent–Child
Relationship accordingly and affirm that part of the judgment as reformed. If Mother
does not timely file such a remittitur, we will reverse the Final Order’s award of
attorney’s fees incurred for representation in the trial court and remand for a new
trial of that issue.
Additionally, we reverse the Final Order’s awards of Mother’s attorney’s fees
on appeal and remand to the trial court for further proceedings on Mother’s
attorney’s fees for services in the court of appeals and the supreme court.
In all other respects, we affirm the Final Order.
/Dennise Garcia/
DENNISE GARCIA
JUSTICE
210033F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF D.A.C.-R. On Appeal from the 417th Judicial
AND E.M.C.-R., CHILDREN District Court, Collin County, Texas
Trial Court Cause No. 417-56020-
No. 05-21-00033-CV 2018.
Opinion delivered by Justice Garcia.
Justices Schenck and Carlyle
participating.
In accordance with this Court’s opinion of this date, the trial court’s Final
Order in Suit Affecting the Parent–Child Relationship is AFFIRMED in part and
REVERSED in part, and we SUGGEST REMITTITUR in part.
We REVERSE the trial court’s Final Order in Suit Affecting the Parent–
Child Relationship to the extent it awards appellee Monica Rios any attorney’s fees
on appeal, and we REMAND the case for further proceedings on appellee Monica
Rios’s claim for attorney’s fees on appeal.
We SUGGEST A REMITTITUR as to that portion of the trial court’s
Final Order in Suit Affecting the Parent–Child Relationship awarding appellee
Monica Rios her incurred attorney’s fees of $85,381.25. If within fifteen days of
the date of this Court’s opinion, appellee Monica Rios files in this Court a
remittitur with respect to those attorney’s fees in the amount of $17,950.00, we
will MODIFY the trial court’s Final Order in Suit Affecting the Parent–Child
Relationship accordingly and AFFIRM AS MODIFIED that portion of the trial
court’s Final Order in Suit Affecting the Parent–Child Relationship. If appellee
Monica Rios does not timely file such a remittitur, we will REVERSE the Final
Order in Suit Affecting the Parent–Child Relationship with respect to Monica
Rios’s incurred attorney’s fees and REMAND the case for further proceedings on
appellee Monica Rios’s claim for incurred fees.
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We AFFIRM the trial court’s Final Order in Suit Affecting the Parent–Child
Relationship in all other respects.
We order each party to bear his or her own costs of this appeal.
Judgment entered June 27, 2022.
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