Melisa Sylvester v. Bjorn M. Nilsson ( 2021 )

Affirmed and Memorandum Opinion filed March 16, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00901-CV
MELISA SYLVESTER, Appellant
V.
BJORN M. NILSSON, Appellee
On Appeal from the 280th District Court
Harris County, Texas
Trial Court Cause No. 2019-34043
MEMORANDUM OPINION
Appellant Melisa Sylvester appeals a protective order issued in connection
with her divorce from appellee Bjorn M. Nilsson. Sylvester argues that the order
should be set aside because (1) it allegedly conflicts with a mediated settlement
agreement filed in the divorce proceeding and (2) legally and factually insufficient
evidence supports the trial court’s findings that she committed family violence in
the past or that she is likely to commit family violence in the future. Sylvester also
challenges the trial court’s award of attorney’s fees to her husband, Nilsson.
Because we conclude that the trial court did not err in issuing the protective
order or in awarding attorney’s fees to Nilsson, we overrule Sylvester’s issues and
affirm the trial court’s order.
Background
Sylvester and Nilsson met while living in Malaysia. The couple married
there in 2014, and Sylvester later gave birth to a son. In summer 2017, the family
moved to Texas, where the couple’s daughter was born.
In December 2018, Nilsson filed for dissolution of the marriage and also
applied for a protective order against Sylvester (the “First Application”). The
divorce matter was filed in the 311th District Court and assigned cause number
2018-90428. The First Application was filed in the 280th District Court and
assigned cause number 2018-90703.
In January 2019, the parties signed a Mediated Settlement Agreement
(“MSA”) as part of their divorce case. In the MSA, Nilsson agreed “to pass the
protective order hearing currently set in the 280th District Court for 1/7/19 and to
concurrently non-suit said protective order suit within 5 days from today.”
Consistent with the MSA terms, Nilsson filed a notice of non-suit without
prejudice in cause number 2018-90703. The MSA also stipulated that Nilsson was
to be sole managing conservator for the children, and Sylvester was to have
supervised visitation.
According to Nilsson, shortly after the parties agreed to the MSA and
Nilsson non-suited his First Application, Sylvester filed documents in the divorce
proceeding to have the MSA set aside and to obtain primary custody of the
children, despite the parties’ agreement in the MSA that Nilsson was to have
primary custody.
2
Sylvester’s attempts to set aside the MSA prompted Nilsson to again apply
for a protective order on his behalf and on behalf of the couple’s two children (the
“Second Application”), in May 2019. This application, the ruling on which forms
the basis of today’s appeal, was filed in the 280th District Court and assigned cause
number 2019-34043.
In the Second Application, Nilsson asserted that Sylvester had committed
family violence and child abuse. Nilsson attached a supporting declaration, in
which he contended that: Sylvester threatened to kill Nilsson, threatened to kill the
couple’s daughter, and stated that “she”1 would be better off dead; Sylvester has a
history of alcohol abuse, rendering her incapable of taking care of herself or the
children; the couple’s son, while in Sylvester’s control, ran into traffic (but was not
harmed); and Nilsson feared for his children’s safety if Sylvester had sole
possession of the children.
Nilsson also described in his declaration two specific acts of family
violence.2 In the first instance, which we refer to as the “December 6 incident,”
Nilsson attended a work function in the evening but returned home in response to
Sylvester’s text messages, in which she stated “that the children will die if
[Nilsson] [did] not come home.” At home, Nilsson found Sylvester intoxicated
and the children screaming. Sylvester became verbally and physically aggressive
toward Nilsson, threatening to stab him to death with a knife and stating that “as a
doctor she knows where to strike to hit critical arteries.” “Without warning,”
Sylvester bit Nilsson’s upper arm and then hit him with her fist, grabbed and
1
It is unclear from Nilsson’s declaration whether Sylvester was referring to herself or to
her daughter.
2
Nilsson testified in greater detail regarding these instances during the protective order
hearing, which we describe infra in Section B of the Analysis.
3
scratched him, threw furniture at him, and hit him “with wooden candles . . .
causing heavy bruising.”
In the second instance, which we refer to as the “December 12 incident,”
Sylvester came home in the early morning hours, “heavily intoxicated,” and
“attempted to strike [Nilsson] with [a] clenched fist in the head.” Sylvester began
shouting and screaming, awakening the children. According to Nilsson, Sylvester
“started cursing our daughter calling her a bitch and told me that I should have sex
with my daughter.” Sylvester continued to attempt to hit Nilsson and the daughter,
began to throw furniture at Nilsson, and threatened to kill Nilsson and the
daughter. Police eventually arrived at the couple’s home and, after speaking with
Nilsson, arrested Sylvester.
Stemming from the December 12 incident, the State sought and obtained a
Magistrate’s Order for Emergency Protection, which Nilsson attached to his
Second Application. The magistrate’s order stated that Sylvester had been arrested
for an offense involving family violence and prohibited Sylvester from threatening
or harassing Nilsson or going to or near Nilsson’s residence or workplace.3
Based on this evidence, Nilsson sought a protective order prohibiting,
among other things, Sylvester from communicating with Nilsson or the children or
coming within 400 feet of Nilsson’s home or work or the children’s school or
childcare facility.
In her response, Sylvester contended that Nilsson’s Second Application was
false and misleading. Sylvester also asserted that Nilsson had been the perpetrator
of family violence against Sylvester and that, if Sylvester committed violence
against Nilsson, it was committed solely in self-defense. According to Sylvester,
3
According to Nilsson, the charges against Sylvester were dismissed approximately
seven months later.
4
she “was tricked into signing the MSA,” but she otherwise did not refer to the
terms of the MSA. Sylvester attached police records documenting a complaint
made by Sylvester against Nilsson. Two days after the December 12 incident,
Sylvester called the police and complained that Nilsson had strangled her. The
district attorney declined to accept charges from this matter “due to the
complainant’s lack of credibility.” (Capitalization normalized).
Sylvester filed her own application for protective order against Nilsson, also
filed in the 280th District Court and assigned cause number 2019-35529.
The trial court held a hearing on the competing applications, at which
Nilsson, Sylvester, and Sylvester’s father testified regarding the merits. At the
conclusion of the hearing, the trial court granted Nilsson’s Second Application and
denied Sylvester’s application. The trial court found that family violence had
occurred, specifically that Sylvester committed family violence, and that family
violence is likely to occur in the future. The trial court found that the protective
order was necessary for the safety and welfare of, and in best interest of, Nilsson
and his two children and was necessary for the prevention of family violence. The
trial court awarded Nilsson his attorney’s fees incurred in prosecuting the Second
Application, to be recovered from Sylvester.
Sylvester appeals.
Standard of Review
When the trial court is the factfinder, such as when it determines whether to
issue a protective order, we review the evidence supporting the protective order
under both legal and factual sufficiency standards. Shoemaker v. State for Prot. of
C.L., 493 S.W.3d 710, 714-15 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
(citing In re Doe, 19 S.W.3d 249, 253 (Tex. 2000); Vongontard v. Tippit, 137
5
S.W.3d 109, 112 (Tex. App.—Houston [1st Dist.] 2004, no pet.)); see also Lopez
v. Occhiogrosso, No. 14-17-00324-CV, 2019 WL 347336, at *4 (Tex. App.—
Houston [14th Dist.] Jan. 29, 2019, no pet.) (mem. op.).
In a legal sufficiency review, we view the evidence in the light most
favorable to the finding and indulge every reasonable inference that supports the
challenged finding, crediting favorable evidence if a reasonable fact finder could
and disregarding contrary evidence unless a reasonable fact finder could not.
Shoemaker, 493 S.W.3d at 715 (citing City of Keller v. Wilson, 168 S.W.3d 802,
827 (Tex. 2005)). “‘If there is any evidence of probative force to support the
finding, i.e., more than a mere scintilla, we will overrule the issue.’” Id. (quoting
City of Houston v. Hildebrandt, 265 S.W.3d 22, 27 (Tex. App.—Houston [1st
Dist.] 2008, pet. denied)).
In reviewing for factual sufficiency, we consider all the evidence; we will set
aside a finding only if it is so against the great weight and preponderance of the
evidence as to be clearly wrong and unjust. Id. (citing Ortiz v. Jones, 917 S.W.2d
770, 772 (Tex. 1996); Kroger Co. v. Persley, 261 S.W.3d 316, 319 (Tex. App.—
Houston [1st Dist.] 2008, no pet.)).
“The factfinder is the exclusive judge of which facts have been proven,
which witness is credible, and the weight to be given any witness’s testimony.” Id.Thus, when faced with conflicting evidence, the factfinder may believe one witness
and disbelieve others. Id. (citing McGalliard v. Kuhlmann, 722 S.W.2d 694, 697
(Tex. 1986)).
With these familiar standards in mind, we turn to each of Sylvester’s
appellate contentions.
6
Analysis
A. Alleged Conflict between MSA and Protective Order
In her first issue, Sylvester argues that the protective order should be set
aside because it is inconsistent with the MSA, which the parties signed as part of
the separate divorce proceeding. In the argument section of her brief, Sylvester
does not specifically identify which portions of the MSA conflict with the trial
court’s protective order. Sylvester simply states that “[t]he MSA requires
[Nilsson] to dismiss his application for protective order and awards [Sylvester]
temporary access to the children until a final decree can be entered.” From this, we
gather that Sylvester contends that the MSA prohibited Nilsson from seeking, or a
trial court from granting, a protective order and that the protective order and the
MSA contain conflicting terms regarding Sylvester’s access to the children.
Sylvester did not present these arguments to the trial court in opposition to
Nilsson’s Second Application for a protective order. In her response, Sylvester
substantively argued only that Nilsson’s application was false and misleading and
that Sylvester had been the victim, not the perpetrator, of family violence. We also
see nothing in the hearing transcript where Sylvester brought these arguments to
the trial court’s attention. We conclude that Sylvester failed to preserve the
complaints she now raises on appeal. See Tex. R. App. P. 33.1(a); Wallace v.
McFarlane, No. 01-10-00368-CV, 2013 WL 4507843, at *5 (Tex. App.—Houston
[1st Dist.] Aug. 22, 2013, no pet.) (mem. op.) (“In order to preserve error, the
party’s complaint on appeal must comport with the argument it raised in the trial
court.”); see also In re M.E.H., ---S.W.3d---, 2020 WL 1942430, at *11 (Tex.
App.—Houston [14th Dist.] 2020, no pet.).
After the trial court signed the final protective order, Sylvester filed a
“Motion for Entry of Judgment,” in which she asserted that she had the “right to
7
rely on the mediated settlement agreement which non-suited any protective order.”
At most, this document raises Sylvester’s contention that the MSA prohibited
Nilsson’s Second Application. Even assuming that this bare assertion was
sufficient to preserve error, Sylvester’s argument still fails. Pursuant to the MSA,
Nilsson agreed to non-suit his First Application: “Petitioner agrees to pass the
protective order hearing currently set in the 280th District Court for 1/7/19 and to
concurrently non-suit said protective order suit within 5 days from today.” The
record reflects that he did so. Nilsson later filed the Second Application, which the
trial court granted. No provision in the MSA prohibited Nilsson’s Second
Application or otherwise barred him from seeking such relief in the future should
he believe circumstances warranted it.
We overrule Sylvester’s first issue.
B. Evidentiary Sufficiency
In her second issue, Sylvester challenges the evidentiary sufficiency of the
trial court’s findings supporting the protective order.
The Texas Family Code permits victims of family violence to apply for a
protective order. See Tex. Fam. Code §§ 82.001-.002. “A court shall render a
protective order . . . if the court finds that family violence has occurred and is
likely to occur in the future.” Id. § 81.001. “Family violence” includes:
an act by a member of a family or household against another member
of the family or household that is intended to result in physical harm,
bodily injury, assault, or sexual assault or that is a threat that
reasonably places the member in fear of imminent physical harm,
bodily injury, assault, or sexual assault, but does not include defensive
measures to protect oneself.
8
Id. § 71.004(1). We begin by considering whether Nilsson presented more than a
scintilla of evidence to support the trial court’s findings, keeping in mind that we
view the evidence in the light most favorable to the trial court’s order.
Nilsson began his testimony by broadly describing instances when Sylvester
hit him in the chest with her fist, causing him a “little bit” of pain. According to
Nilsson, such incidents occurred “two, three times a week . . . maybe not as severe
but sometimes more severe, sometimes less severe.” Nilsson then testified in
detail regarding the “two main incidents that led to [him] filing [his]
application”—i.e., the December 6 and December 12 incidents.
On December 6, 2018, Nilsson attended a work dinner. Shortly after
arriving, he began receiving “[e]xtremely concerning” text messages from
Sylvester—including a message that “your daughter is about to die”—so he left
early and returned home. When he arrived home, he found the children crying and
Sylvester “heavily intoxicated” from drinking half of a bottle of whiskey.
According to Nilsson, Sylvester was “behaving aggressively and she was
obviously intoxicated.” Nilsson attempted to soothe their daughter, and “then
almost immediately, the situation escalate[d] into violence.” Nilsson testified that
Sylvester “start[ed] to throw furniture and she [took] some blunt objects to hit
[Nilsson]. She bit[] [him] in [his] upper left arm, which [left] a large bruise . . . .
And it [was] an ongoing very dangerous situation.” Nilsson said that he “sustained
heavy bruises and bleeding to [his] left arm because of being struck by blunt
objects.” Specifically, Nilsson said that Sylvester threw the “baby cot . . . some
candle lights . . . [and] some potted plants,” and that Sylvester bit him on his upper
arms.
On December 12, 2018, Nilsson came home after work. The family ate
dinner and “then around 7:00 o’clock, [Sylvester] left [the] apartment without
9
stating where she would go,” not returning until “between 1:00 and 1:30 a.m. in the
morning.” Nilsson said she was “heavily intoxicated and visibly angry.”
According to Nilsson, he and Sylvester “sat down at the dinner table and almost
immediately she punched [him] in the head.” Nilsson testified that his daughter
woke up, and he went to get her. When he came back into the kitchen carrying his
daughter, Sylvester “grabbed [the daughter’s] arm and pulled it hard and at a later
moment, she tried to punch [the daughter] in the head with [a] closed fist.” Nilsson
said that he “decide[d] to try to leave the apartment and see if that . . . will make
[Sylvester] calm down.” He walked around the apartment complex until Sylvester
texted him “that the police had arrived and [he] should come back to the
apartment.”4 The police arrested Sylvester that night.
Each of these incidents, standing alone, is some evidence of family violence.
See Puente v. Puente, No. 01-18-00583-CV, 2019 WL 3418510, at *5 (Tex.
App.—Houston [1st Dist.] July 30, 2019, no pet.) (mem. op.) (testimony that
respondent “assaulted” applicant, which caused bruising, and audio recording in
which respondent “told [applicant] that it would be necessary for him to beat her if
she failed to discipline the [children] as he wished” was evidence supporting trial
court’s finding of family violence); see also Coffman v. Melton, 448 S.W.3d 68, 74
(Tex. App.—Houston [14th Dist.] 2014, pet. denied) (applicant’s testimony
regarding respondent’s past acts of family violence, which included him spitting
on, cursing at, and physically abusing her, held sufficient to support trial court’s
protective order); Boyd v. Palmore, 425 S.W.3d 425, 430 (Tex. App.—Houston
[1st Dist.] 2011, no pet.) (blocking car and jumping on its hood legally sufficient
evidence of family violence despite lack of physical harm). Thus, the evidence is
4
Nilsson and Sylvester both testified that they did not know who called the police.
10
legally sufficient to support the trial court’s finding that Sylvester committed
family violence.
Nilsson further testified that, during the December 6 altercation, Sylvester
“threaten[ed] to kill [him]. Threaten[ed] to use her skills as a doctor to injure
[him].” Nilsson said he feared that Sylvester would follow through on those
threats, because she was “making very specific threats about how to kill [him].”
Nilsson also stated:
She has made numerous threats to kill me and to stop me, to use her
medical knowledge and she has been standing in our bedroom with a
kitchen knife in her hand while I’ve been lying in the bed. She has, to
my knowledge, not admitted or recognized her behavior in any way.
She has had a history of alcohol consumption when she has become
uncontrollable and not being able to control herself. My fear is that
this can happen again and that would result in physical violence.
We conclude that the evidence is also legally sufficient to support the trial
court’s finding that Sylvester is likely to commit family violence in the future. See
Puente, 2019 WL 3418510, at *5 (evidence that respondent’s behavior escalated
over time and that applicant moved out of marital home because of fear of
respondent, viewed in conjunction with evidence of past family violence, would
allow a reasonable factfinder to conclude that future family violence was likely);
Boyd, 425 S.W.3d at 432 (single act of past family violence may be legally
sufficient to support finding that future family violence was likely).
The record does contain some contrary evidence, which we consider in our
factual sufficiency review. Nilsson admitted that, during the December 6 incident,
he “gave [Sylvester] a push and [] also kicked her left leg” while Sylvester “was
attacking” him. Nilsson characterized this as an attempt to defend himself and his
daughter, who he held in his arms at the time. Similarly, when asked whether he
11
ever hit Sylvester, Nilsson testified that he “defended [himself] on three occasions”
by pushing, kicking, or grabbing Sylvester.
Sylvester denied that Nilsson was defending himself on December 6; in her
opinion, “[h]e was attacking me.” Regarding the December 12 incident, Sylvester
did not deny threatening to kill Nilsson, but she tried to explain: “It always start[s]
with me trying to speak about something and I’m not heard. And at that point, the
anger just builds up between both of us. And we never really get down to the root
of problem, it’s always piled up.” Sylvester introduced pictures purportedly
showing “the injuries from [December] 6th and re[-]injury from the 12th,”
including “the spot where [Nilsson] kicked [her] and [she] was bleeding and it
turned to be a scab.”
Sylvester also testified that Nilsson strangled and kicked her when the
couple lived in Malaysia, that Nilsson kicked her in the stomach while Sylvester
was pregnant with the couple’s daughter, that Nilsson was “a batterer,” and that
Nilsson once punched the couple’s son in the eye. Sylvester’s father corroborated
some of Sylvester’s testimony, stating that Nilsson strangled Sylvester in Malaysia
and kicked Sylvester’s stomach while she was pregnant, although the father
admitted that he did not personally witness the latter incident. Finally, according
to Sylvester, she took a class called “Aid of Victim of Domestic Violence,” in
which Sylvester learned about “the cycle of violence as in how to avoid the red
flags in a relationship.”
As factfinder, the trial court was entitled to assess the respective credibility
of the witnesses and to credit Nilsson’s testimony over Sylvester’s or her father’s.
See, e.g., Wilkerson v. Wilkerson, 321 S.W.3d 110, 117 (Tex. App.—Houston [1st
Dist.] 2010, pet. dism’d) (trial court as factfinder could believe applicant for
protective order even though respondent hotly contested facts). Having reviewed
12
the record as a whole, we are not convinced that the trial court’s findings as to past
and future family violence are against the great weight and preponderance of the
evidence. The evidence is therefore factually sufficient to support these findings.
See Boyd, 425 S.W.3d at 433 (evidence factually sufficient to support protective
order, notwithstanding respondent’s denials and explanations as to his behavior);
see also Puente, 2019 WL 3418510, at *5.
We overrule Sylvester’s second issue.
C. Attorney’s Fees
Family Code section 81.005 grants the trial court discretion in awarding
attorney’s fees to an applicant who successfully obtains a protective order against a
party who is found to have committed family violence:
The court may assess reasonable attorney’s fees against the party
found to have committed family violence or a party against whom an
agreed protective order is rendered under Section 85.005 as
compensation for the services of a private or prosecuting attorney or
an attorney employed by the Department of Family and Protective
Services.
Tex. Fam. Code § 81.005(a).
The trial court found Sylvester committed family violence, issued the
protective order, and awarded Nilsson $45,179.84 in attorney’s fees. In her third
issue on appeal, Sylvester challenges the fee award, arguing that: (1) the fees are
unreasonable as a matter of law; (2) the fees were not segregated from work for
which fees are unrecoverable; (3) the trial court failed to consider Sylvester’s
ability to pay; (4) the judgment allows for a double recovery of fees; and (5) the
fee award should be reversed if the protective order itself is set aside. We address
each contention in turn.
13
1. Reasonableness
Section 81.005 authorizes an award of “reasonable” attorney’s fees. The
factfinder’s starting point for calculating an attorney’s fee award is determining the
reasonable hours worked multiplied by a reasonable hourly rate, and the fee
claimant bears the burden of providing sufficient evidence on both counts. See
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498 (Tex.
2019); El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 760 (Tex. 2012). Sufficient
evidence includes, at a minimum, evidence of (1) particular services performed,
(2) who performed those 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 such services. Rohrmoos
Venture, 578 S.W.3d at 498.
Here, Nilsson’s attorney, Mary Ramos, briefly testified at trial and also
introduced an affidavit, resumes showing her and her associates’ experience, and
dozens of pages of billing records. Sylvester’s attorney did not cross-examine
Ramos nor challenge any part of the documentary evidence. In other words,
Sylvester did not contest a single aspect of the attorney’s fees sought by Nilsson in
the trial court.
After reviewing the record, we conclude that Nilsson’s unchallenged
evidence thoroughly addressed all the Rohrmoos Venture factors. In her affidavit,
Ramos declared that she had practiced law in Texas since 2004 and was board-
certified in family law. Ramos testified that:
“[t]he service [she] provided was necessary and the amount that [she]
charged for the service was reasonable at the time and place that the
service was provided;”
“[t]hese attorneys, paralegals and legal assistants have the experience
which justifies their hourly rates;” and
14
“[t]he hourly rates are reasonable, necessary and customary for fees
charged in this family law matter.”
Specifically, in determining the reasonableness and necessity of the fees
charged, Ramos considered the “time and labor required, the novelty and difficulty
of the questions involved and the skill required to perform the legal services
properly,” as well as “the fees customarily charged in the locality for similar legal
services for the complexity of the issues raised, argued and pursued.” Ramos
specified the billing rates charged by each attorney or paralegal who worked on the
case, as well as the total number of hours worked.
Ramos substantiated the hours worked with detailed, contemporaneous
billing records. The billing records were itemized both by practitioner (whether
Ramos, an associate attorney, or a paralegal) and by task and were calculated by
each practitioner’s respective billing rate multiplied by tenths of an hour worked.
We hold that there is legally sufficient evidence to support the reasonable
attorney’s fees awarded by the trial court. Rohrmoos Venture, 578 S.W.3d at 498.
2. Segregation
Sylvester also argues that Nilsson failed to segregate his attorney’s fees
incurred in this proceeding from fees incurred in other aspects of his legal
proceedings with Sylvester. Sylvester contends that “[t]he fees he presented are
for all of his attorney’s work not just the work performed on the second protective
order application.” Sylvester does not point to any evidence to support this
assertion.
Of course, Nilsson can recover fees from Sylvester, the non-prevailing party,
only if there is specific statutory or contractual authority allowing it, see id. at 487,
and he must segregate his recoverable attorney’s fees from any that relate solely to
a claim for which fees are unrecoverable. See Tony Gullo Motors I, L.P. v. Chapa,
15
212 S.W.3d 299, 313 (Tex. 2006). As stated above, section 81.005(a) authorizes
Nilsson’s recovery of fees in these circumstances. See Tex. Fam. Code
§ 81.005(a). But Nilsson can recover only his fees incurred in obtaining the
protective order against Sylvester, not for any other independent matter, such as
the parties’ divorce proceeding. Tony Gullo Motors, 212 S.W.3d at 313.
The exhibit containing Ramos’s affidavit and the attached billing records
that pertain to the legal services rendered in this protective order proceeding also
contains testimony and evidence pertaining to Ramos’s representation of Nilsson
in the pending divorce proceeding between Nilsson and Sylvester. In her affidavit,
Ramos asserted that Nilsson incurred $49,375.83 in the divorce matter and
$45,179.84 in the protective order proceeding, and she attached billing records for
both matters.5 Although Ramos references fees incurred in the divorce—which
Nilsson undisputedly may not recover from Sylvester under section 81.005(a)—
there is no indication that Nilsson sought, nor that the trial court awarded, any fees
for the divorce matter. Ramos distinguished between fees incurred in the divorce
matter and fees incurred in the protective order proceedings, seeking recovery only
for the latter.
Accordingly, our review of the record reveals that Nilsson sought, and the
trial court awarded, fees incurred solely on this protective order proceeding.
Specifically, the billing records that Nilsson introduced to substantiate the claimed
fees specifically reference Nilsson’s name, the trial court cause number in this
case, and the reference “PROTECTIVE ORDER.” The fees billed by Ramos and
others in her firm under this cause number total $45,179.84, which is precisely
5
We see no explanation in the record as to why Ramos included both matters in a single
exhibit, but, regardless, Sylvester did not object to the admission of this evidence in the trial
court.
16
what the trial court awarded. Thus, Nilsson’s fees were properly segregated, and
Sylvester’s segregation challenge fails.
3. Ability to Pay
Section 81.005 provides that, in setting the amount of attorney’s fees, “the
court shall consider the income and ability to pay of the person against whom the
fee is assessed.” Tex. Fam. Code § 81.005(b). Sylvester argues that there is no
indication in the record that the trial court did so and that the award therefore must
be reversed.
This court has held that section 81.005 “creates a divided burden of proof on
the issue of the amount of attorney’s fees to be assessed in a family violence
protective order case.” Ford v. Harbour, No. 14-07-00832-CV, 2009 WL 679672,
at *6 (Tex. App.—Houston [14th Dist.] Mar. 17, 2009, no pet.) (mem. op.).
Nilsson, as the applicant for a family violence protective order that includes a
request for attorney’s fees, had the initial burden to ask for and then put forward
competent evidence proving he incurred reasonable attorney’s fees as a result of
applying for and prosecuting his application for a protective order. Tex. Fam.
Code § 81.005(a). Then, pursuant to subsection (b), Sylvester had to come
forward, not with evidence contesting the amount of attorney’s fees incurred by
Nilsson or even denying the reasonableness of those fees, but with evidence
addressing her ability to pay the attorney’s fees sought by Nilsson. Id. § 81.005(b).
Because Sylvester’s burden under section 81.005(b) is not to deny the fees incurred
by Nilsson, but to avoid being assessed some or all of those fees because of an
independent reason—i.e., her inability to pay—the burden is in the nature of an
affirmative defense. Ford, 2009 WL 679672, at *6 (noting that this division of the
burden of proof also makes logical sense because “it imposes the burden of proof
on the party with the best access to the required information”). Therefore,
17
Sylvester had the burden to come forward with evidence on that subject if she
wanted the trial court to consider her ability to pay any assessment of Nilsson’s
claimed attorney’s fees. Id.In support of the attorney’s fees sought by Nilsson, Ramos testified in
general terms regarding the number of hours worked by each person in her firm, as
well as their respective billing rates. Ramos also introduced detailed billing
records. Sylvester offered no controverting evidence and did not cross-examine
Ramos. Sylvester also failed to offer any evidence as to her inability to pay an
assessment of attorney’s fees. Therefore, we hold that Sylvester failed to raise the
issue of an inability to pay Nilsson’s attorney’s fees in the trial court. See id.
4. Double Recovery
According to Sylvester, the fee award in the judgment is ambiguous and
could be construed to award a double recovery. Sylvester therefore asks that we
modify the fee award to clarify that she does not owe two separate amounts of
$45,179.84 (once to Nilsson and once to Ramos).
We disagree that the judgment as written could support a double recovery.
The judgment states:
It is further ORDERED and assessed against Respondent, MELISA
SYLVESTER, the sum of forty-five thousand one hundred seventy-
nine dollars and eighty-four cents ($45,179.84) for reasonable
attorney fees for obtaining this order. It is Ordered that Respondent,
MELISA SYLVESTER, shall contact (and make payments to) the
Ramos Law Group, PLLC, 1214 Miramar Street, Houston, Texas
77006, Ph: 713-225-6200, to make payment arrangements or the
280th District Court hereby ORDERED payments to be made as
follows:
It is ordered that Bjorn Nilsson is awarded a judgment in the amount
of $45,179.84 for legal services rendered, against Melisa Sylvester,
for which let execution issue. It is ordered that Melisa Sylvester pay
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$__x__ per month, beginning __x__, and due every month until paid
in full. Respondent further agrees to a wage withholding order to
issue once she begins working and will notify Bjorn Nilsson of any
employers within 3 days of any change in employment status, so that
he may cause a wage withholding order to issue.
Melisa Sylvester is ordered to pay $45,179.84, lump sum on or before
Nov. 1, 2019, 5:00 p.m.
It is clear from the judgment that Sylvester is responsible for $45,179.84 for
the “legal services rendered” to Nilsson, and that she must pay those fees to
Ramos. If Sylvester fails to make payments to Ramos, then Nilsson is entitled to
obtain a wage withholding order to satisfy the fee award. There is no ambiguity in
the judgment, nor does the judgment permit a double recovery of attorney’s fees.
5. Fees as Part of the Protective Order
Sylvester’s last challenge to the fee award is her argument that the fee award
cannot stand if we reverse the trial court’s order of protection. Because we are
affirming, not reversing, the trial court’s order, this argument presents no basis for
reversing the fee award.
For all of the above reasons, we overrule Sylvester’s third issue on appeal.
Conclusion
We affirm the trial court’s protective order.
/s/ Kevin Jewell
Justice
Panel consists of Justices Jewell, Poissant, and Wilson.
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