in the Interest of A.V.T.R., a Child ( 2021 )

Affirmed and Memorandum Opinion filed March 11, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00986-CV
IN THE INTEREST OF A.V.T.R., A CHILD
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2013-68957
MEMORANDUM OPINION
Appellant Andrew Rose (“Father”) appeals the trial court’s order following a
bench trial in a suit affecting the parent-child relationship. In three issues Rose
challenges the trial court’s exclusion of evidence during the hearing on his motion
for new trial, the overruling of his motion for new trial, and the assessment of amicus
attorney’s fees. We affirm.
BACKGROUND
Father and appellee Joann Taylor (“Mother”) had a child in 2014. Pursuant to
a mediated settlement agreement (“MSA”) Mother was named sole managing
conservator of the child and Father was the possessory conservator. The parties
agreed to child support and Father’s visitation. Father subsequently filed a petition
to modify the MSA in that Father sought to be appointed sole managing conservator
with the right to designate the primary residence of the child. In the alternative Father
requested that the parties be named joint managing conservators. Father alleged that
the circumstances of the child had changed because Mother engaged in a history or
pattern of child neglect. Father’s petition to modify did not allege specific
circumstances that had materially and substantially changed, but at trial Father
alleged that Mother made false accusations of sexual abuse against him and, in that
regard, Mother had engaged in a history or pattern of child neglect.
The parties proceeded to a bench trial where the following witnesses testified:
(1) LaRon Haynes, an investigator with the Department of Family and Protective
Services (the “Department”); (2) Ambryia Wilson, another Department investigator;
(3) Melissa Ramsey, a family therapist who saw the child; (4) Father; and (5)
Mother.
Haynes testified that he conducted an investigation into an outcry of sexual
abuse made by the child, who was three years old at the time. The outcry was
reported by Mother. The investigation resulted in an “unable to determine” finding.
According to the investigation report, Mother reported that the child exhibited
behaviors consistent with sexual abuse after visitation with Father. Haynes was
unable to rule out the allegation because the child was unable to give details about
the allegation. Haynes referred the child to play therapy. The therapist from play
therapy also reported the child’s outcry and the Department opened a second
investigation.
The Department assigned Wilson to investigate the outcry reported by the
therapist, the second outcry. Wilson testified that the investigation was closed
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because the Department determined that the outcry involved the same allegations
that had been made in the first allegation; there was nothing new to investigate,
resulting in an administrative closure.
At the time of trial Father was working as an aviation instructor in China,
which required him to alternate four weeks living in China with four weeks in
Houston. Father asked the trial court to modify the MSA’s standard possession order
to allow him access to the child during the time he was living in Houston. Father
also requested that Mother pay child support to him. Father testified that he exercised
all periods of possession and was up to date on child support. Father denied the
sexual abuse allegations. While the abuse allegations were investigated Father was
not allowed visitation with the child.
Mother testified that she did not believe the circumstances of the child had
changed and she was willing to give Father visitation every weekend he was in
Houston.
At the conclusion of the testimony Mother’s attorney requested a directed
verdict, arguing that Father failed to meet his burden to show a material and
substantial change in the child’s circumstances. The trial court agreed and granted a
directed verdict on Father’s motion to modify.
The trial court rendered judgment denying Father’s motion to modify
conservatorship and granting Mother’s motion to modify child support. The trial
court further denied both parties’ requests for attorneys’ fees and granted the amicus
attorney’s request for fees, ordering Father to pay $12,235 in amicus fees.
Father filed a motion to reconsider amicus fees, motion for new trial, and
amended motion for new trial in which he argued the trial court erred in assessing
amicus fees against him and in excluding certain testimony. Specifically, Father
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asserted he was entitled to a new trial because (1) the evidence was legally and
factually insufficient to support the trial court’s judgment allocating amicus fees;
and (2) “an unauthorized act or acts by [Father]’s trial counsel so prejudiced
[Father]’s ability to present his claims in this case that the effect was to deprive
[Father] of his day in court[.]” The trial court held a hearing on Father’s motion for
new trial, which was denied.1
At the hearing on the motion for new trial Father introduced evidence that
Mother had entered into an MSA with Don Brooks, the father of Mother’s older
child. A portion of the MSA enjoined Brooks from testifying in the modification
proceeding between Mother and Father. Brooks was represented by attorneys with
the same law firm that represented Father. Father asked that Brooks be permitted to
testify at the hearing on the motion for new trial; Father did not seek Brooks’s
testimony at trial. The trial court excluded Brooks’s testimony from the motion-for-
new-trial hearing. Father asked to present an offer of proof of Brooks’s testimony,
which the trial court agreed to allow after the hearing. By the time the hearing ended
Brooks had left the courtroom. Approximately one week later the attorneys
reconvened, but Brooks was not present. Father’s attorney stated on the record that
Brooks would have testified that he was involved in a modification proceeding with
Mother and was represented by the same law firm that represented Father. Brooks
would have testified that Mother also made allegations of sexual abuse against him
in the modification proceeding. Brooks would have testified that Mother reported
the alleged abuse to the Department.
1
The motion for new trial was denied by operation of law on November 27, 2019, 75 days
after the judgment was signed. See Tex. R. Civ. P. 329b(c). The hearing was not held until
December 9, 2019; however, the trial court retained plenary power for an additional 30 days after
the motion was overruled by operation of law. See Tex. R. Civ. P. 329b(e). The trial court noted
on its docket sheet that the motion for new trial was denied December 9, 2019.
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Father filed a timely request for findings of fact and conclusions of law, but
did not timely notify the trial court of past-due findings and conclusions. See Tex.
R. Civ. P. 297 (requiring a party to file a notice of past due findings “within thirty
days after filing the original request”). The trial court did not file findings of fact and
conclusions of law and Father waived any complaint that the trial court failed to
issue findings. See Hardin v. Hardin, 161 S.W.3d 14, 20 (Tex. App.—Houston [14th
Dist.] 2004, no pet.) (explaining that untimely filing of notice of past due findings
results in waiver of any complaint that trial court failed to issue findings).
ISSUES PRESENTED
In three issues on appeal Father asserts (1) the trial court committed harmful
error in excluding the testimony of Don Brooks at the hearing on the motion for new
trial; (2) the trial court abused its discretion in denying Father’s motion for new trial;
and (3) the trial court abused its discretion in ordering Father to pay all remaining
amicus fees. Mother did not file a responsive brief in this court.
ANALYSIS
I. Standard of Review and Applicable Law
We review the trial court’s denial of Father’s petition to modify for an abuse
of discretion. See In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.]
2016, pet. denied) (“Trial courts have wide discretion with respect to custody,
control, possession, support, and visitation matters.”). The trial court abuses its
discretion when it acts arbitrarily, unreasonably, or without reference to any guiding
rules or principles. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th
Dist.] 2010, pet. denied). The trial court does not abuse its discretion if there is some
evidence of a substantive and probative character to support its decision. In re
C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2007, pet.
5
denied).
Under an abuse-of-discretion standard, legal and factual sufficiency are not
independent grounds of error but instead are relevant factors assessed to determine
if the trial court abused its discretion. In re R.T.K., 324 S.W.3d at 899–900. Where,
as here, the trial court fails to file findings of fact and conclusions of law following
a bench trial, we infer all findings necessary to support the judgment and will affirm
on any legal ground supported by the record. BMC Software Belgium, N.V. v.
Marchand, 83 S.W.3d 789, 795 (Tex. 2002). When the appellate record includes
both the reporter’s and clerk’s records, the implied findings are not conclusive and
may be challenged for legal and factual sufficiency. See Harris County v. Ramirez,
581 S.W.3d 423, 427 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
When examining legal sufficiency, we review the entire record, considering
evidence favorable to the finding if a reasonable factfinder could and disregarding
contrary evidence unless a reasonable factfinder could not. In re J.R.P., 526 S.W.3d
770, 777 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We indulge every
reasonable inference that would support the challenged finding. Id. Evidence is
legally sufficient “if it would enable reasonable and fair-minded people to reach the
decision under review.” Id.
For a factual sufficiency review, we examine the entire record and consider
evidence favorable and contrary to the challenged finding. In re P.A.C., 498 S.W.3d
210, 214 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “We may set aside
the verdict only if it is so contrary to the overwhelming weight of the evidence as to
be clearly wrong and unjust.” In re J.R.P., 526 S.W.3d at 777. “It is not within the
province of this court to interfere with the factfinder’s resolution of conflicts in the
evidence or to pass on the weight or credibility of the witness’s testimony.” In re
C.E.M.-K., 341 S.W.3d 68, 81 (Tex. App.—San Antonio 2011, pet. denied).
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In a bench trial, the trial court is in the best position to observe and assess the
witnesses’ demeanor and credibility, and “to sense the ‘forces, powers, and
influences’ that may not be apparent from merely reading the record on appeal.” In
re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(quoting Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.)).
“As a result, an appellate court defers to a trial court’s resolution of underlying facts
and to credibility determinations that may have affected its determination, and will
not substitute its judgment for that of the trial court.” In re J.R.P., 526 S.W.3d at
778.
To ensure stability and continuity for children’s living arrangements, Texas
law delineates the showing necessary to modify a trial court’s conservatorship order.
See In re A.L.H., 515 S.W.3d 60, 79 (Tex. App.—Houston [14th Dist.] 2017, pet.
denied). The terms of a conservatorship may be modified only if (1) modification is
in the child’s best interest, and (2) “the circumstances of the child, a conservator, or
other party affected by the order have materially and substantially changed” since
the date of rendition of the conservatorship order. Tex. Fam. Code § 156.101(a).
The existence of a material and substantial change in circumstances is a
threshold determination. In re A.L.E., 279 S.W.3d at 428. In making this
determination, the trial court “is not confined to rigid or definite guidelines;” rather,
the trial court’s determination is fact-specific and must be made according to the
circumstances as they arise. Id. Material changes may include (1) the marriage of
one of the parties; (2) changes in the home surroundings; (3) mistreatment of the
child; or (4) a party becoming an improper person to exercise custody. Arredondo v.
Betancourt, 383 S.W.3d 730, 734-35 (Tex. App.—Houston [14th Dist.] 2012, no
pet.). The person seeking the modification has the burden of establishing a material
and substantial change. London v. London, 94 S.W.3d 139, 145 (Tex. App.—
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Houston [14th Dist.] 2002, no pet.).
“[N]ot every change in conditions justifies a change of custody, but only those
changes which reasonably could be said to injuriously affect the child’s best
interests.” Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981,
no writ). Change alone does not justify modification unless changed needs also are
shown. See Zeifman v. Michels, 212 S.W.3d 582, 593 (Tex. App.—Austin 2006, pet.
denied). The policy behind the material-and-substantial-change requirement is to
prevent constant re-litigation with respect to children and create stability in the
conservatorship. In re H.P.J., No. 14-17-00715-CV, 2019 WL 1119612, at *3–4
(Tex. App.—Houston [14th Dist.] Mar. 12, 2019, no pet.) (mem. op.).
To show that a material and substantial change in circumstances has occurred,
the movant must show conditions as they existed at the time the prior
conservatorship order was signed. In re A.L.E., 279 S.W.3d at 428 (citing Zeifman,
212 S.W.3d at 589). Once these circumstances have been shown, the movant must
show what material and substantial changes have occurred in the intervening period.
Id.
II. The trial court did not abuse its discretion in excluding Brooks’s
testimony from the hearing on the motion for new trial.
Father first contends that the trial court abused its discretion in excluding
Brooks’s testimony from the hearing on the motion for new trial.
Evidentiary decisions are committed to the trial court’s sound discretion. U-
Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118, 132 (Tex. 2012). To show that the trial
court abused its discretion in excluding evidence, a complaining party must
demonstrate that (1) the trial court erred in not admitting the evidence; (2) the
excluded evidence was controlling on a material issue dispositive of the case and
was not cumulative; and (3) the error probably caused the rendition of an improper
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judgment. Tex. R. App. P. 33.1(a); Tex. R. Evid. 103(a). Matter of Marriage of
Harrison, 557 S.W.3d 99, 121 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
Father has failed to demonstrate that Brooks’s testimony would have been
material to the trial court’s decision on whether there was a material and substantial
change in the circumstances of the child. Notably, Father does not contend on appeal
that the evidence is legally or factually insufficient to support the trial court’s
conservatorship ruling or otherwise complain about the ruling. Father did not present
Brooks as a witness at trial and did not assert that Brook’s testimony was newly
discovered evidence following the trial. Absent a complaint about the trial court’s
substantive ruling, it is difficult to see how the exclusion of evidence from the
motion-for-new-trial hearing probably caused the rendition of an improper
judgment. See Watts v. Oliver, 396 S.W.3d 124, 129–30 (Tex. App.—Houston [14th
Dist.] 2013, no pet.) (holding that absent a complaint about the trial court’s
substantive ruling, appellant could not establish that exclusion of evidence probably
caused rendition of an improper judgment).
Father also argues that the injunction against Brooks’s testimony in the MSA
was an unconstitutional prior restraint on speech. Father failed to preserve this issue
by failing to raise it at trial or in his motion for new trial. See Tex. R. App. P. 33.1
(to preserve error appellant must show complaint was made to the trial court by
timely request, objection, or motion).
On this record we cannot say that the trial court abused its discretion in
excluding Brooks’s testimony from the hearing of his motion for new trial. We
overrule Father’s first issue.
III. The trial court did not abuse its discretion in denying Father’s motion for
new trial.
In Father’s second issue he contends the trial court erred in denying his motion
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for new trial. Specifically, Father alleges that his attorney “entered into an
unauthorized settlement agreement.” Father argues that his attorney hampered the
presentation of Father’s case by entering into the settlement agreement that
contained the injunction prohibiting Brooks from testifying in Father’s modification
proceeding.
We review the trial court’s denial of Father’s motion for new trial under the
abuse-of-discretion standard of review. See Golden Eagle Archery, Inc. v. Jackson,
24 S.W.3d 362, 372 (Tex. 2000); Wichman v. Kelsey-Seybold Med. Group, PLLC,
No. 14-18-00641-CV, 2020 WL 4359734, at *2 (Tex. App.—Houston [14th Dist.]
July 30, 2020, no pet.).
Attached to Father’s motion for new trial was a copy of the MSA in a
modification suit in which Brooks sought to modify the parent-child relationship
between Brooks and Mother. The MSA contained the aforementioned injunction
order against Brooks testifying in the modification proceeding between Father and
Mother. One of Father’s trial attorneys, Brian Walters, signed the agreed order as
Brooks’s attorney. Walters’s signature appeared below a notation, “Approved as to
Form Only.” Brooks and Mother each signed the agreed order as parties to the MSA
under a notation, “Approved and Consented to as to Both Form and Substance.”
Father attacks the agreed order, which incorporated the MSA, as being void
as against public policy because (1) the order “destroyed” evidence because it
prohibited Brooks from testifying; (2) Father’s attorney was not authorized to enter
into the MSA; and (3) Father’s attorney violated the Texas Disciplinary Rules of
Professional Conduct when he entered into the MSA. It is undisputed that Father
was not a party to the MSA or agreed order enforcing the MSA.
In challenging the injunction against Brooks testifying, Father attempts to
collaterally attack the judgment. A direct attack—such as an appeal, a motion for
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new trial, or a bill of review—attempts to correct, amend, modify, or vacate a
judgment. PNS Stores, Inc. v. Rivera, 379 S.W.3d 267, 271 (Tex. 2012). A collateral
attack seeks to avoid the binding effect of a judgment to obtain specific relief that
the judgment currently impedes. Id. In general, a party to a final judgment may
collaterally attack the judgment at any time after the time for filing an appeal has
expired; however, in light of the policy favoring the finality of judgments, such
attacks are disfavored and may only be made on the ground that the judgment was
void, rather than merely voidable. See id. at 272–74 (recognizing that this rule
“strikes a reasonable balance between the need for finality of judgments and the
requirement that the power underlying judicial authority must be based on a litigant’s
fair opportunity to be heard”); see also Browning v. Prostok, 165 S.W.3d 336, 346
(Tex. 2005). Therefore, parties to a divorce proceeding may collaterally attack a final
judgment in their own case on the ground that it was void. See, e.g., Ramsey v.
Ramsey, 19 S.W.3d 548, 552–53 (Tex. App.—Austin 2000, no pet.) (recognizing
that “a divorce decree that is valid on its face and has not been appealed cannot be
set aside in a subsequent suit by collateral attack”). However, a somewhat different
analysis applies when, as here, a non-party seeks to collaterally attack a final
judgment. Here, Father argues that Brooks’s MSA and agreed judgment in Brooks’s
divorce impeded Father’s ability to present evidence in the instant case.
An individual who is not a party to a final judgment lacks standing to
collaterally attack the judgment, unless the individual can establish his or her
interests are directly and necessarily affected by the judgment itself. See In re
Ocegueda, 304 S.W.3d 576, 580–81 (Tex. App.—El Paso 2010, pet. denied)
(attorneys who were non-parties to expunction proceeding lacked standing to
collaterally attack expunction order). Having an “interest affected by the judgment”
means having an interest in the subject matter to which the judgment relates. Digilio
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v. True Blue Animal Rescue, No. 01-18-01087-CV, 2020 WL 4308709, at *9 (Tex.
App.—Houston [1st Dist.] July 28, 2020, no pet.) (mem. op.). Examples of
nonparties whose interests are affected by a judgment are persons having an interest
in land (such as an owner, a cotenant, or a person in lawful possession) who are not
made a party to an action involving the land, a holder of a junior lien who has been
ignored in a suit foreclosing a prior lien on the same property, and a creditor whose
rights are prejudiced by a judgment pursued for the purpose of delaying, hindering,
or defrauding the creditor. See Grynberg v. Christiansen, 727 S.W.2d 665, 667 (Tex.
App.—Dallas 1987, no writ).
Conversely, having only a tangential or indirect interest in the judgment is
insufficient to bestow standing upon a non-party for purposes of allowing a collateral
attack on the judgment. See, e.g., id. at 667 (party lacked standing to collaterally
attack a final judgment that was rendered in another proceeding, where his only
asserted interest in doing so was to avoid the inconvenience of attending oral
depositions and producing documents); In re Ocegueda, 304 S.W.3d at 580–81
(attorneys could not establish that they had standing to collaterally attack an
expunction order where they were neither parties to the original expunction
proceeding nor did they represent any of the parties to the proceeding).
In accord with these general principles, several courts, including at least three
of our sister courts in Texas, have held that a non-party to a divorce proceeding lacks
standing to collaterally attack a divorce decree where the individual had no pre-
existing interest in the divorce proceeding itself. See, e.g., Caballero v. Vig, 600
S.W.3d 452, 459–60 (Tex. App.—El Paso 2020, pet. denied) (wife did not have
standing to challenge the validity of annulment of marriage of trial judge); Gilliam
v. Riggs, 385 S.W.2d 444, 446–47 (Tex. Civ. App.—Beaumont 1964, writ dism’d
w.o.j.) (appellant, who was not a party to a divorce proceeding and was unable to
12
demonstrate that he had any interest in the divorce, had no right to challenge the
validity of the divorce judgment); Perry v. Copeland, 323 S.W.2d 339, 344 (Tex.
Civ. App.—Texarkana 1959, writ dism’d) (recognizing that daughter had no right to
collaterally attack her father’s divorce decree); Kieke v. Cox, 300 S.W.2d 309, 311
(Tex. Civ. App.—San Antonio 1957, no writ) (second husband of one of the parties
to a divorce judgment that was regular and final on its face lacked sufficient interest
to collaterally attack the same).
Relying on In re Kasschau, 11 S.W.3d 305 (Tex. App.—Houston [14th Dist.]
1999, orig. proceeding), Johnson v. Ranch Guadalupe, 789 S.W.2d 596, 598 (Tex.
App.—Texarkana 1990, pet. denied), and Hazelwood v. Mandrell Industries Co.,
Ltd., 596 S.W.2d 204, 206 (Tex. App.—Houston [1st Dist.] 1980, writ ref’d n.r.e.),
Father argues that the MSA and the injunction contained in the agreed order are void.
In each of those cases, however, the party challenging the order or agreement was a
party to the order or agreement. See Kasschau, 11 S.W.3d at 308 (party to MSA
sought judgment on a MSA); Johnson, 789 S.W.2d at 597–98 (parties to settlement
agreement alleged their attorney was not authorized to enter into the agreement);
Hazelwood, 596 S.W.2d at 205 (workers’ compensation claimant alleged that
employment contract was void as against public policy).
Because Father does not have standing to challenge the agreed order in
Brooks’s modification proceeding, the trial court did not abuse its discretion in
denying Father’s motion for new trial on the ground that the injunction in the MSA
was unauthorized or void as against public policy. We overrule Father’s second
issue.
IV. The trial court did not abuse its discretion in assessing amicus fees against
Father.
The record reflects that before trial, the amicus attorney filed a motion to
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compel attorney’s fees and for sanctions. In the motion the amicus attorney stated
that the trial court had previously ordered Father to pay $7,306.25 to the amicus as
her fee. The motion further asserted that Mother owed the amicus $10,156.25 in fees.
The amicus attorney later submitted an affidavit, which reflected that the total
amount owed was $22,035, of which Father had already paid $9,000, and Mother
had paid $800 leaving a balance of $12,235. The amicus represented that Mother
was paying her portion of the amicus fees in installments. Father objected to the
amicus fees noting that he had already paid the “vast majority” of the fees. In its
final judgment the trial court ordered Father to pay $12,235, representing the amount
of amicus fees owed at that time.
In Father’s third issue he asserts the evidence was legally and factually
insufficient to support the assessment of amicus fees against him. Father asserts the
trial court abused its discretion in two ways when it ordered him to pay the amicus
attorney’s fees. First, Father asserts the fees were improperly assessed as sanctions.
Second, Father asserts the trial court abused its discretion because the evidence is
insufficient to support the assessment of amicus attorney’s fees.
A. The record does not reflect that the amicus fees were assessed as a
sanction.
The Family Code authorizes a trial court to make a discretionary appointment
of an amicus attorney in a suit affecting the parent-child relationship when the best
interest of the children is an issue. See Tex. Fam. Code § 107.021; In re Scheller,
325 S.W.3d 640, 645 (Tex. 2010) (orig. proceeding) (per curiam). Pursuant to
section 107.021 of the Family Code, the trial court appointed an amicus attorney in
this proceeding. In its judgment the trial court ordered Father to pay $12,235 in
amicus fees, but did not order Mother to pay amicus fees. In his motion for new trial
and on appeal Father complains that Mother did not plead for amicus fees to be
14
assessed as sanctions and the evidence was legally and factually insufficient to
support assessment of the fees as a sanction against him.
Contrary to Father’s assertion, Mother did request sanctions against Father for
filing a frivolous pleading. In a motion to deny relief, filed June 17, 2019, Mother
requested sanctions pursuant to Texas Rule of Civil Procedure 13 and Chapter 10 of
the Texas Civil Practice and Remedies Code because she alleged Father filed a
groundless suit that was not in the best interest of the child. In opening statements
Mother’s attorney requested “attorney’s fees, costs and – plus additional sanctions
to prevent this kind of thing in the future.” The trial court’s judgment, however, did
not assess amicus fees as sanctions.
Numerous sections in the Family Code authorize a trial court to award
attorney’s fees in a suit affecting the parent-child relationship (“SAPCR”). Section
106.002, applicable to all SAPCRs, vests a trial court with general discretion to
render judgment for reasonable attorney’s fees to be paid directly to a party’s
attorney. Tex. Fam. Code § 106.002(a); see also Lenz v. Lenz, 79 S.W.3d 10, 21
(Tex. 2002) (“An attorney’s fees award in a suit affecting the parent-child
relationship is discretionary with the trial court.”). In addition, the Legislature has
enacted specific provisions that control awards of attorney’s fees in certain types of
cases under Title 5, including separate provisions for Chapter 156 modification suits
and Chapter 157 enforcement suits. For example, section 156.005 requires that a trial
court tax attorney’s fees as costs against the offending party in modification suits if
the court finds that the suit was “filed frivolously or is designed to harass a party.”
Tex. Fam. Code § 156.005. Section 156.005 requires a finding by the trial court that
the suit for modification was filed frivolously or was designed to harass a party, and
the court is required to state that finding in its order. Tex. Fam. Code § 156.005. The
trial court made no such finding in this case.
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Chapters 9 and 10 of the Texas Civil Practice and Remedies Code and rule 13
of the Texas Rules of Civil Procedure allow a trial court to sanction an attorney or a
party for filing motions or pleadings that lack a reasonable basis in fact or law.
Chapter 9 of the Texas Civil Practice and Remedies Code only applies in
proceedings in which neither Rule 13 nor Chapter 10 applies. Tex. Civ. Prac. & Rem.
Code § 9.012(h). Rule 13 authorizes the imposition of the sanctions listed in Rule
215.2(b), which provides for a monetary penalty based on expenses, court costs, or
attorney’s fees. Tex. R. Civ. P. 13; Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007).
Rule 13 requires: “No sanctions under this rule may be imposed except for good
cause, the particulars of which must be stated in the sanction order.” Tex. R. Civ. P.
13. Chapter 10 requires that the court “shall describe in an order imposing a sanction
under this chapter the conduct the court has determined violated Section 10.001 and
explain the basis for the sanction imposed.” Tex. Civ. Prac. & Rem. Code § 10.005.
At trial, the attorneys agreed to have a separate hearing on attorney’s fees and
sanctions, which according to the trial court’s judgment, was never held. The trial
court considered the parties’ attorneys’ fees requests by submission and denied both
parties’ requests for attorneys’ fees. The trial court then stated in its order:
Having considered the pleadings on file, evidence presented, and
arguments of counsel, the Court hereby GRANTS the request for
attorney fees of Amicus Attorney, Tammy Simien Moon.
THEREFORE,
[Father] is ORDERED to pay directly in the offices of TAMMY
SIMIEN MOON the amount of $12,235.00 by cash, cashier’s check or
money order by August 6, 2019.
The trial court did not reference sanctions, Rule 13, or any other statute permitting
sanctions. The final judgment does not reference sanctions or contain any language
pursuant to Rule 13 or Chapter 10 that is required to assess sanctions.
The record does not reflect that amicus fees were awarded as sanctions in this
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case. Father is correct in noting that a trial court must make a finding of good cause
before assessing sanctions pursuant to Rule 13 of the Texas Rules of Civil Procedure.
Tex. R. Civ. P. 13. Under Chapter 10, the trial court must describe the conduct the
court has determined violated section 10.001 and explain the basis for the sanction
imposed. Tex. Civ. Prac. & Rem. Code § 10.005. Under the Family Code, before
assessing sanctions, the trial court is required to state in its order that the suit for
modification was filed frivolously or was designed to harass a party. Tex. Fam. Code
§ 156.005. Because the trial court made no such findings, we hold the trial court did
not assess sanctions. Cf. In re D.Z., 583 S.W.3d 284, 293–94 (Tex. App.—Houston
[14th Dist.] 2019, no pet.) (holding that trial court’s award of attorney’s fees because
“good cause exist[ed] to award [Mother] attorney’s fees” was sufficient to satisfy
Rule 13’s requirement of a sanction).
B. The evidence is legally and factually sufficient to support the trial
court’s assessment of amicus attorney’s fees.
Having determined the amicus fees were not assessed as sanctions, we review
the trial court’s award of amicus fees in a suit affecting the parent-child relationship
for abuse of discretion. In re R.H.W. III, 542 S.W.3d 724, 743 (Tex. App.—Houston
[14th Dist.] 2018, no pet.). Section 107.023 of the Family Code gives the trial court
wide discretion in awarding amicus fees and permits the trial court to assess the fees
against either party or both parties. See Tucker, 419 S.W.3d at 300 (noting that
section 107.023 specifically authorizes trial courts to characterize fees awarded to
an amicus attorney as necessaries for the benefit of the child).
Father asserts the trial court abused its discretion because it did not consider
the amounts already paid by the parties, the court’s prior orders regarding allocation
of amicus fees, and the amicus attorney’s invoices reflecting amounts already paid
to the amicus.
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As noted in the court’s judgment, the parties agreed to submit requests for
attorney’s fees in writing rather than participate in an oral hearing. The amicus
attorney submitted an affidavit on July 8, 2019, which reflected a balance of $12,235
owed in amicus fees. The affidavit notes a previous balance of $11,550 plus new
charges of $10,485, and credits the parties with $9,800 in payments. On December
9, 2019, in the hearing on the motion for new trial, held several months after
judgment, Father testified that he paid the amicus attorney “$14,500,
approximately.” The evidence is therefore conflicting as to how much Father paid
the amicus attorney before the trial court rendered judgment. It is also plausible that
Father paid some of the amicus fees between the date of judgment and the hearing
on the motion for new trial.
Viewing the conflicting evidence in the light most favorable to the trial court’s
ruling, we conclude Father has not shown the trial court abused its discretion in
awarding amicus fees to be paid by Father pursuant to section 107.023. See In re
R.H.W. III, 542 S.W.3d at 743 (holding trial court has discretion to assess amicus
fees against one parent as necessaries for the child); In re R.T.K., 324 S.W.3d at 899–
900 (stating standard of review for sufficiency of evidence). Concluding the trial
court did not assess amicus fees as a sanction and did not abuse its discretion in
assessing fees to be paid by Father, we overrule Father’s third issue.
CONCLUSION
Having overruled Father’s issues on appeal, we affirm the trial court’s
judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Wise, Zimmerer, and Poissant.
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