In the Interest of T.M.R. and K.M.R., Children v. the State of Texas ( 2024 )

Affirmed and Opinion Filed November 6, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-23-01175-CV
IN THE INTEREST OF T.M.R. AND K.M.R., CHILDREN
On Appeal from the 301st Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-09-10796
MEMORANDUM OPINION
Before Justices Nowell, Miskel, and Breedlove
Opinion by Justice Nowell
Appellant is the paternal grandmother of T.M.R. and K.M.R. Appellees are
the children’s paternal grandfather and his wife. In May 2017, the trial court entered
an Order on Suit for Harassment Including Permanent Injunction (the Injunction), in
which it enjoined appellant from, among other things, communicating with the
children or appellees.1 In October 2021, appellant filed a petition to dissolve the
Injunction, which appellees opposed. The case proceeded to a bench trial on August
22, 2023, and the trial court granted a directed verdict in favor of appellees. The trial
court subsequently issued an order reflecting its ruling at trial and awarding
1
Evidence at trial showed appellant violated the Injunction more than a dozen times.
$6,907.18 in attorney’s fees to appellees. In two issues, appellant argues the trial
court abused its discretion by failing to dissolve the Injunction and awarding
attorney’s fees. We affirm the trial court’s August 22, 2023 Order on Petition to
Modify Order.
A. Injunction2
A trial court may modify a permanent injunction upon a showing of changed
circumstances. BCH Dev., LLC v. Lakeview Heights Addition Prop. Owners’ Ass’n,
No. 05-17-01096-CV, 2019 WL 2211479, at *4 (Tex. App.—Dallas May 21, 2019,
pet. denied) (mem. op.) (citing Smith v. O’Neill, 813 S.W.2d 501, 502 (Tex. 1991)
(orig. proceeding) (per curiam)). “Changed circumstances are conditions that alter
the status quo after the issuance of an injunction.” In re S.V., No. 05-18-00037-CV,
2019 WL 516730, at *7 (Tex. App.—Dallas Feb. 11, 2019, no pet.) (mem. op.)
(citing In re A.G.F.W., No. 06-12-00111-CV, 2013 WL 2459886, at *3 (Tex. App.—
Texarkana Jun. 6, 2013, no pet.) (mem. op.)). The party seeking modification has
the burden of demonstrating changed circumstances. Id. (citing City of Seagoville v.
Smith, 695 S.W.2d 288, 289 (Tex. App.—Dallas 1985, no writ)); see also BCH Dev.,
2019 WL 2211479, at *4. We review the trial court’s ruling on a requested
modification for an abuse of discretion. BCH Dev., 2019 WL 2211479, at *4. (citing
2
We note that appellant’s brief also attacks provisions of the Injunction itself. Questions about whether
the trial court erred by granting the Injunction and the terms of the Injunction are beyond the scope of this
appeal. When the appeal is from an order denying a motion to dissolve, and earlier orders granting
injunctive relief were not appealed, we do not consider the propriety of the trial court’s prior decision to
grant injunctive relief. In re Guardianship of Stokley, No. 05-10-01660-CV, 2011 WL 4600428, at *2 (Tex.
App.—Dallas Oct. 6, 2011, no pet.) (mem. op.)
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Schuring v. Fosters Mill Village Cmty. Ass’n, 396 S.W.3d 73, 76 (Tex. App.—
Houston [14th Dist.] 2013, pet. denied)).
To carry her burden to show changed circumstances, appellant’s only
evidence was that the children were five years older at the time of trial than they
were when the Injunction was granted. By arguing her evidence is sufficient,
appellant essentially suggests we adopt a bright-line rule that a child becoming older
is a changed circumstance for which a trial court should modify or dissolve an
injunction. We decline to do so.
A child growing older can, under certain circumstances, warrant a finding of
changed circumstances. See generally In re C.H.C., 392 S.W.3d 347, 351 (Tex.
App.—Dallas 2013, no pet.) (considering a change in circumstances with respect to
a modification order). “[C]ourts have usually considered age when the child was an
infant or toddler at the time of the original order and has aged several years at the
time of modification.” Id. (citing Horne v. Harwell, 533 S.W.2d 450, 452 (Tex. Civ.
App.—Austin 1976, writ ref’d n.r.e.) (concluding trial court properly found a
material and substantial change in circumstance to modify possession when child
was seventeen months old at time of divorce and over three years old when motion
to modify was filed); In re T.W.M.B., 04–96–00667–CV, 1998 WL 236320, at *2
(Tex. App.—San Antonio May 13, 1998, no pet.) (not designated for publication)
(noting increase of child’s age from seventeen months to five years old was a
material and substantial change)). However, generally, increase in age alone is not a
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changed circumstance unless changed needs are also shown. See In re L.N.T., No.
05-23-00477-CV, 2024 WL 3451509, at *3 (Tex. App.—Dallas July 18, 2024, no
pet.) (mem. op.) (citing In. re C.R.G., No. 05-10-01472-CV, 2012 WL 3133785, at
*4 (Tex. App.—Dallas Aug. 2, 2012, no pet.) (mem. op.)); see also In re C.H.C.,
392 S.W.3d 347, 351 (Tex. App.—Dallas 2013, no pet.); Zeifman v. Michels, 212
S.W.3d 582, 593 (Tex. App.—Austin 2006, pet. denied) (citing Voros v. Turnage,
856 S.W.2d 759, 762 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Randle v.
Randle, 700 S.W.2d 314, 316–17 (Tex. App.—Houston [1st Dist.] 1985, no writ)).
Appellant presented evidence of only one change with respect to the children:
the children were eight years old when the Injunction was granted, and they were
fourteen years old at the time of trial. The children were not infants when the
Injunction was granted and no evidence of changed needs was shown. Based on this
record, we cannot conclude the trial court abused its discretion by concluding
appellant failed to carry her burden to show changed circumstances warranted
dissolving or modifying the Injunction. We overrule appellant’s first issue.
B. Attorney’s Fees
In her second issue, appellant argues the trial court abused its discretion when
it awarded attorney’s fees to appellees because the evidence is insufficient to support
the award. In Texas, each party generally must pay its own attorney’s fees.
Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 483 (Tex.
2019). However, a trial court may award costs and reasonable attorney’s fees and
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expenses in a suit affecting the parent-child relationship. See TEX. FAM. CODE
§§ 106.001, .002. We review an award of attorney’s fees for an abuse of discretion.
See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012).
A party seeking attorney’s fees “bears the burden of providing sufficient
evidence” of both the reasonable hours worked and a reasonable hourly rate.
Rohrmoos, 578 S.W.3d at 498. 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. Id. “General, conclusory testimony devoid of any real
substance will not support a fee award.” Id. at 501. “Thus, a claimant seeking an
award of attorney’s fees must prove the attorney’s reasonable hours worked and
reasonable rate by presenting sufficient evidence to support the fee award sought.”
Id. at 501–02. Contemporaneous billing records are not required to prove the
requested fees are reasonable and necessary, but they “are strongly encouraged to
prove the reasonableness and necessity of requested fees when those elements are
contested.” Id. at 502.
Appellant argues appellees’ attorney-fee evidence is not sufficient to satisfy
the Rohrmoos standard because appellees only presented redacted fee statements to
support the award. Appellant ignores the fact that appellees’ counsel testified at trial
and was cross-examined by her counsel.
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Appellees’ counsel testified he charged $325 per hour, which was reasonable
for the services performed by an attorney of his expertise. He also testified about his
paralegals’ and legal assistant’s qualifications and rates and explained their rates
were reasonable. The fee agreement between appellees and counsel was admitted
along with counsel’s curriculum vitae, redacted fee statements, and a summary of
time spent on and expenses incurred in the matter. Counsel testified the total fees
incurred at the time of trial were $10,575, which he believed were reasonable. On
cross-examination, appellant’s counsel asked appellees’ counsel for additional
information about work performed on specific dates when the fee statements were
redacted, and the information was provided.
Based on all of the information provided, we conclude the trial court did not
abuse its discretion by awarding attorney’s fees in favor of appellees. We overrule
appellant’s second issue.
C. Conclusion
We affirm the trial court’s August 22, 2023 Order on Petition to Modify
Order.
231175f.p05 /Erin A. Nowell//
ERIN A. NOWELL
JUSTICE
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF T.M.R. On Appeal from the 301st Judicial
AND K.M.R., CHILDREN District Court, Dallas County, Texas
Trial Court Cause No. DF-09-10796.
No. 05-23-01175-CV Opinion delivered by Justice Nowell.
Justices Miskel and Breedlove
participating.
In accordance with this Court’s opinion of this date, the trial court’s August
22, 2023 Order on Petition to Modify Order is AFFIRMED.
It is ORDERED that appellees recover their costs of this appeal from
appellant.
Judgment entered this 6th day of November, 2024.
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