in the Interest of K.A.M.S & K.A.S, Children

Affirmed in part, Reversed in part, Remanded, and Opinion filed August 6,
2019.
In the
Fourteenth Court of Appeals
NO. 14-18-00015-CV
IN THE INTEREST OF K.A.M.S. & K.A.S., CHILDREN
On Appeal from the 311th District Court
Harris County, Texas
Trial Court Cause No. 2006-26052
OPINION
Appellant Gilberto Sanchez (Father) appeals from a final order in a suit to
modify a parent-child relationship.1 See Tex. Fam. Code Ann. § 109.002 (Supp.).
He argues that the trial court abused its discretion when it: (1) appointed appellee
Crystal Farrow (Mother) sole managing conservator; (2) modified Father’s standard
possession order; (3) increased Father’s monthly child-support and medical-support
1
This is a SAPCR, i.e., a suit affecting the parent-child relationship. See Tex. Fam. Code
Ann. § 101.032(a). The 311th District Court of Harris County is the court of continuing, exclusive
jurisdiction. See Tex. Fam. Code Ann. §§ 155.001 (Supp.), 155.002–.003.
payments; and (4) awarded Mother’s attorney her attorney’s fees. We conclude that
the attorney’s-fee award was not supported by legally-sufficient evidence.
Therefore, we reverse the portion of the trial court’s final order regarding attorney’s
fees, and remand the case to the trial court for further proceedings limited to
Mother’s attorney’s-fee discovery-sanction claim. We otherwise affirm.
I. BACKGROUND
2006 paternity order. In 2006, Mother filed the original SAPCR, and on
December 18, 2006, the trial court signed an order adjudicating Father the parent of
two children born to Mother, K.A.M.S. and K.A.S. See Tex. Fam. Code Ann.
§§ 101.023, 160.636(a). The trial court ordered that Mother and Father have joint-
managing conservatorship, Mother has the exclusive right to determine the
children’s primary residence within Harris County, and Father has standard
possession and access. See Tex. Fam. Code Ann. §§ 101.016, 101.029, 153.002,
153.134(b), 153.251; Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex.
Gen. Laws 113, 147, amended by Act of May 12, 2015, 84th Leg., R.S., ch. 117, § 3,
2015 Tex. Gen. Laws 1119, 1120 (current version at Tex. Fam. Code
§ 153.005(a)(1)). Father was ordered to pay Mother $615.00 per month in child
support and to provide the children with health insurance or reimburse Mother for
the cost of their insurance. See Tex. Fam. Code Ann. §§ 101.015, 154.001(a)
(Supp.); Act of May 24, 2001, 77th Leg., R.S., ch. 1023, § 3, 2001 Tex. Gen. Laws
2240, 2240, amended by Act of May 27, 2015, 84th Leg., R.S., ch. 1150, § 8, 2015
Tex. Gen. Laws 3868, 3869 (current version at Tex. Fam. Code § 154.008).
2013 modification order.2 On September 18, 2013, the trial court signed an
2
The record does not indicate which party (or parties) filed the 2013 SAPCR to modify the
support order and to confirm support arrearages. The record contains an unofficial copy of the
resulting order, signed by the attorney of record for the Child Support Division of the Attorney
General’s Office, by Father, and by Mother’s counsel, which was offered by Father and admitted
2
order that Father pay Mother his child-support and medical-support arrears. See Tex.
Fam. Code. Ann. § 157.263. The order also modified Father’s child-support
obligation based on a material and substantial change in circumstances to $440.00 a
month, plus $60.00 a month in cash medical support. See Tex. Fam. Code Ann.
§§ 156.001, 156.402; Act of May 16, 2011, 82nd Leg., R.S., ch. 508, § 3, 2011 Tex.
Gen. Laws 1264, 1264, amended by Act of May 27, 2015, 84th Leg., R.S., ch. 1150,
§ 29, 2015 Tex. Gen. Laws 3868, 3875–76 (current version at Tex. Fam. Code
§ 156.401(a)(1)).
Current modification suit. Mother filed the current SAPCR as a modification
petition in 2017. Mother requested that she be named sole managing conservator of
the children, Father be ordered to pay increased child support and the
health-insurance premium for the children, Father have possession of and access to
the children at times and dates reached by agreement of the parties, and Father pay
reasonable attorney’s fees to Mother’s attorney. See Tex. Fam. Code Ann.
§§ 106.002, 156.001, 156.101, 156.402; Act of May 16, 2011, 82nd Leg., R.S., ch.
508, § 3, 2011 Tex. Gen. Laws 1264, 1264 (amended 2015).
Mother filed a motion to compel discovery and for sanctions. The trial court
signed an order granting Mother’s motion to compel and ordering Father to pay
attorney’s fees, expenses of discovery, and court costs totaling $2,011.65 to
Mother’s attorney.
At the bench trial, Mother, Father, and Mother’s attorney testified. Before
rendering judgment, the trial court interviewed K.A.M.S., then fourteen-years old,
and K.A.S., then twelve-years old, in chambers. See Tex. Fam. Code. Ann.
by the trial court at the hearing on the current SAPCR. Also at the hearing, at Mother’s request,
the trial took judicial notice of the contents of its entire file, including the modification order it
signed on September 18, 2013.
3
§§ 153.009, 156.101(a)(2). Mother requested a record of this interview, but it is not
included in the reporter’s record before us. See Tex. Fam. Code Ann. § 153.009(f).3
The trial court concluded there had been a material and substantial change in
circumstances since the 2006 paternity order and that modifying the order was in the
best interest of the children. See Tex. Fam. Code Ann. §§ 153.002, 156.101(a)(1).
The trial court named Mother sole managing conservator and Father possessory
conservator. See Tex. Fam. Code Ann. §§ 153.005 (Supp.), 153.006. The trial court
concluded that a standard possession order was inappropriate or unworkable under
the circumstances, a modified possession order was not more restrictive than
necessary to protect the best interest of the children, and Father shall have possession
at times mutually agreed to in advance by the parties. See Tex. Fam. Code Ann.
§§ 153.193, 153.252–.253, 153.256.
The trial court also concluded there had been a material and substantial change
in circumstances since the 2013 modification order. The trial court concluded that
Father was intentionally underemployed, and his actual income was significantly
less than his earning potential. See Tex. Fam. Code Ann. § 154.066(a). The trial
court concluded that Father’s potential gross income was $3,333.33 per month, with
guideline support at a rate of $500.00 per month. 4 The trial court further concluded
that application of the guideline support for Father’s potential income was not in the
best interest of the children and was unjust or inappropriate under the factors outlined
3
In any event, Father does not contend the children expressed to the trial court anything
inconsistent with the trial court’s rulings on conservatorship or possession and access. See Tex.
Fam. Code Ann. § 153.009(a–b).
4
The trial court stated that it calculated this amount based on Father’s net monthly income
of $2,542.53 and adjusted net monthly income of $2,410.53, with a guideline rate of 20.63 percent
for his two children before the court and two other children not before the court. See Tex. Fam.
Code Ann. §§ 154.061, 154.129; Office of the Att’y Gen., 2017 Child Support Guidelines Tax
Charts, 41 Tex. Reg. 10703–11 (2016).
4
in Family Code section 154.123(b)(1), (2), (3), (4), (5), (7), (12), (13), (15), and (17).
See Tex. Fam. Code Ann. §§ 154.122-.123. The trial court therefore set Father’s
child support at $650.00 per month for both children and $520.00 per month for one
child after emancipation of the older child. The trial court ordered Mother to
maintain health insurance for the children and Father to reimburse Mother cash
medical support of $132.00 per month.
The trial court concluded that reasonable and necessary attorney’s fees of
$9,800.00 were incurred by Mother in retaining the services of her attorney,
including $2,000.00 Father previously was ordered to pay in the order on Mother’s
motion to compel discovery and for sanctions. The trial court ordered Father to pay
Mother’s attorney directly.
The trial court signed its final order on January 2, 2018. Father did not request
findings of fact or conclusions of law or file a motion for new trial. Father appealed.
See Tex. Fam. Code Ann. § 109.002 (Supp.).
II. ANALYSIS
Trial courts have wide discretion with respect to determining the best interest
of a child and over custody, control, possession, support, and visitation matters.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re A.L.E., 279 S.W.3d
424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.). We therefore review the
trial court’s granting of Mother’s petition to modify for an abuse of discretion. See
Gillespie, 644 S.W.2d at 451; In re A.L.E., 279 S.W.3d at 427.
The trial court abuses its discretion when it acts arbitrarily, unreasonably, or
without reference to any guiding rules or principles. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990). 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
5
A.L.E., 279 S.W.3d at 428; see Worford, 801 S.W.2d at 109.
Under this abuse-of-discretion standard, legal and factual sufficiency are not
independent grounds of error, but instead are relevant factors to determine if the trial
court abused its discretion. In re A.L.E., 279 S.W.3d at 427; see Beaumont Bank,
N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). 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. Gunn v. McCoy, 554 S.W.3d 645, 658 (Tex. 2018); In re P.A.C.,
498 S.W.3d 210, 214 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). We
indulge every reasonable inference that would support the challenged finding. Gunn,
554 S.W.3d at 658. 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. Cain v. Bain, 709 S.W.2d
175, 176 (Tex. 1986) (per curiam); In re P.A.C., 498 S.W.3d at 214. 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. Cain, 709 S.W.2d at 176.
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.” Taylor v. Meek,
276 S.W.2d 787, 790 (Tex. 1955); In re A.L.E., 279 S.W.3d at 427 (internal
quotation marks omitted). 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. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).
6
A. Modification of conservatorship and of possession and access
We construe Father’s first and second issues as challenging the trial court’s
discretion in modifying (1) the conservatorship of the parties from joint managing
conservators to sole managing conservator (Mother) and possessory conservator
(Father)5 and (2) Father’s standard visitation order to possession at times mutually
agreed to in advance by the parties. Father acknowledges that “[c]ourts have
particularly wide latitude in establishing the specific terms and conditions of
visitation and conservatorship.” However, according to Father, the trial court’s
decision “was based on a narrow review of the law, and needs to be reversed.” We
disagree.
In addressing Father’s arguments, we remain mindful that “[t]he best interest
of the child shall always be the primary consideration of the court in determining the
issues of conservatorship and possession of and access to the child.” Tex. Fam. Code
Ann. § 153.002. Family Code section 156.101, “Grounds for Modification of Order
Establishing Conservatorship or Possession and Access,” in pertinent part provides:
(a) The court may modify an order that provides for the appointment of
a conservator of a child, that provides the terms and conditions of
conservatorship, or that provides for the possession of or access to a
child if modification would be in the best interest of the child and:
(1) the circumstances of the child, a conservator, or other party
affected by the order have materially and substantially changed
since the earlier of:
(A) the date of the rendition of the order . . . .
Tex. Fam. Code Ann. § 156.101(a)(1)(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
5
In his first issue, Father asks whether the trial court committed “gross error.”
7
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: the marriage of one
of the parties, changes in the home surroundings, mistreatment of the child by a
party, or a party’s becoming an improper person to exercise custody. See id. at 428–
29. The person seeking the modification has the burden of establishing a material
and substantial change by either direct or circumstantial evidence. Id. 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 order was signed. Id. at 429.
The movant also must show what material and substantial changes have occurred in
the intervening period. Id. at 428.
Here, with regard to conservatorship, Mother presented evidence that Father
only was “actively a parent” when he and Mother were “actively in a relationship.”
She testified that in 2006, Father only possessed the children for approximately eight
days, did not spend their birthdays with them, and only spent one holiday with them.
In 2007, Father attended K.A.M.S.’s birthday party, took the children out of daycare
twice to take them to lunch, did not attend K.A.M.S.’s first day of pre-K, only texted
Mother for K.A.S.’s second birthday, spent no holidays with the children, and
otherwise spent just one day with them. Mother brought the children to Father’s
family’s bakery about six times.
Mother and the children moved to North Carolina in November 2007. Mother
accepted a job transfer so she could work full-time to support the children. Even
though Mother informed Father that through her employment with an airline she
could arrange for Father to “fly free” to come visit the children, he never “took her
up on that.” Mother and the children flew back to Houston “throughout the year” but
only saw Father’s parents.
8
Father left his job as a forklift operator for a grocer-supply company and
began working at the bakery in 2007. In 2008 and 2009, Father called Mother from
an anonymous number to leave a voicemail for K.A.M.S. on her birthday. In 2010
and 2011, Father had no contact with the children. Once in 2012, the children saw
Father at the bakery. In 2013 and 2014, Father had no contact with the children. In
2015, Mother and the children moved back to Houston. In 2015 and 2016, Father
had no contact with the children. In September 2017, less than two months before
trial, Father began texting Mother asking about the children. Mother offered to bring
the children to the bakery to see Father, and he refused.
Father admitted that he never gave Mother his phone number before
September 2017 and she had no way to contact him if the children had an emergency.
Father did not request visitation. Father did not know and never asked Mother if the
children had any medical conditions. He did not know and never asked Mother what
schools they attended, or anything about their academics or activities. Father
admitted that his failure to communicate with the children potentially had a negative
impact on them but he did not “care enough” to reach out to them.
We reject Father’s attempts to rely on former Family Code section
156.203(1)(C), which was enacted in 1995 and repealed in 2001. 6 This modification
suit instead is governed by section 156.101. See Tex. Fam. Code Ann. § 156.101.
Father also attempts to rely on Bingham v. Bingham, 811 S.W.2d 678 (Tex. App.—
6
The repealed conservatorship modification standard differs significantly from the current
statute. See Act of May 26, 1995, 74th Leg., R.S., ch. 751, § 48, 1995 Tex. Gen. Laws 3888, 3906
(“The court may replace a joint managing conservatorship with a sole managing conservatorship
if: (1) . . . (C) the circumstances of the child or of one or both of the joint managing conservators
have so materially and substantially changed since the rendition of the order that it has become
unworkable or inappropriate under existing circumstances . . . .”) (former Tex. Fam. Code
§ 156.203(1)(C)), repealed by Act of May 22, 2001, 77th Leg., R.S., ch. 1289, § 12(2), 2001 Tex.
Gen. Laws 3108, 3111 (repealing in part former Family Code chapter 156, subchapter C).
9
Fort Worth 1991, no writ). However, Bingham predated and did not apply section
156.101. 7 In any event, Bingham does not assist Father. There, the trial court did not
err by concluding that the parents’ joint managing conservatorship had not become
unworkable and inappropriate when the record showed the parents had continued to
appropriately work with each other as joint managing conservators after their
divorce. Id. at 683.
Nor do we find persuasive the evidence on which Father relies. Father testified
Mother did not send him anything in writing that she moved to North Carolina and
claimed he did not know her address until he saw it in the 2013 modification order.
Father also notes that Mother testified she did not call the bakery to let Father know
when she and the children moved back to Houston in 2015. In addition, Father
testified that he had recently reached out to the children via text and he wanted to
spend time with them outside his workplace.
Mother, however, testified that she gave Father prior notice about her planned
move to North Carolina at a meeting “at the Attorney General’s Office in October
2007.” At the time Mother and the children moved back in 2015, Father had only
seen the children once in over seven years—when Mother initiated a 2012 visit to
the bakery on one of the family’s trips back to Houston. Mother also testified
regarding Father’s history of hanging up on her when she called the bakery or
Father’s telling her to call him back and then being gone or not answering when she
returned the call. Moreover, until just before trial Mother had no way to contact
Father other than calling the bakery. Father, however, had Mother’s phone number.
7
The statute at issue in Bingham was former Family Code section 14.081(c). Act of May
26, 1987, 70th Leg., R.S., ch. 744, § 9, 1987 Tex. Gen. Laws 2666, 2671 (former Tex. Fam. Code
§ 14.081(c)), amended by Act of May 28, 1989, 71st Leg., R.S., ch. 371, § 7, 1989 Tex. Gen. Laws
1462, 1465, repealed by Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 2(1), 1995 Tex. Gen. Laws
113, 282 (repealing former Family Code title 2).
10
Further, Mother testified she gave Father’s parents the children’s numbers as soon
as she got the children cell phones in 2012.
Under the applicable standards of review, we conclude there was legally- and
factually-sufficient evidence that appointing Mother sole managing conservator was
in the children’s best interest and there had been a material and substantial change
in circumstances since the 2006 paternity order. As the sole judge of the weight and
credibility of the evidence, the trial court as factfinder could have reasonably
credited Mother’s version of events—which essentially reflected that since 2006 she
already had been functioning as the children’s sole managing conservator. Father
has not shown that the trial court abused its discretion in designating Mother sole
managing conservator of K.A.M.S. and K.A.S.
We overrule Father’s first issue.
With regard to visitation, Father contends that the trial court did not have
“enough basis” to modify the standard possession order and therefore abused its
discretion. Again, we disagree.
The Family Code provides guidelines for determining the periods of
possession for a possessory conservator. See Tex. Fam. Code Ann. § 153.192(b).
There is a rebuttable presumption that a standard possession order provides a
possessory conservator reasonable minimum possession of the child and is in the
best interest of the child. Tex. Fam. Code Ann. § 153.252. A trial court has discretion
to deviate from a standard possession order but must consider “(1) the age,
developmental status, circumstances, needs, and best interest of the child; (2) the
circumstances of the managing conservator and of the parent named possessory
conservator; and (3) any other relevant factor.” Tex. Fam. Code Ann. § 153.256.
An order restricting a parent’s right to possession of or access to a child may
11
not impose restrictions beyond those required to protect the child’s best interest. See
Tex. Fam. Code Ann. § 153.193. A trial court does not abuse its discretion in
restricting a parent’s possession when the record contains some evidence to support
a finding that such restrictions are in the child’s best interest. In re P.A.C., 498
S.W.3d at 219.
“In all cases in which possession of a child by a parent is contested and the
possession of the child varies from the standard possession order, including a
possession order for a child under three years of age, on request by a party, the court
shall state in writing the specific reasons for the variance from the standard order.”
Tex. Fam. Code Ann. § 153.258(a) (Supp.). Here, Father did not request findings.
We therefore apply the same standard of review as when a party fails to make a
request for findings of fact under Texas Rules of Civil Procedure 296 through 299
and imply all findings necessary to support the trial court’s judgment. See Tex. Fam.
Code Ann. § 153.258(b) (Supp.); In re P.A.C., 498 S.W.3d at 217. Accordingly, we
review the record in the light most favorable to the trial court’s order and will uphold
the order on any legal theory that finds support in the evidence. In re P.A.C., 498
S.W.3d at 217.
Father points to his testimony that he wants to spend time with the children
outside the bakery. He “would love” to spend “two, three hours, maybe lunch or
whenever they get off school, weekends” with them. He also testified that he was
the one sending presents to the children “through” his parents. According to Father,
a mutual-agreement visitation arrangement would not work because Mother
“doesn’t agree on stuff.”
The record reflects the following relevant evidence. For almost twelve years,
Father exercised almost none of his standard visitation; intentionally did not provide
his contact information to Mother ostensibly because she sent him “ridiculous” texts;
12
did not inquire about, much less try to set up visits with, the children; left a couple
of voicemails for one child from an anonymous number; and refused to communicate
with Mother when she called the bakery. For almost eight years when the children
lived out of state, Father had basically no contact with them even though Mother
brought the children to see Father’s parents at the bakery when she and the children
were in town visiting. Father also never tried to visit the children in North Carolina
even though Mother assured him that he could fly free to visit them. Mother stated
the children only received presents and cards from Father’s parents. When pressed
about what he allegedly sent the children under the guise of his parents, Father stated
“it’s been so long” and he “really d[id]n’t remember what it was.” The trial court
reasonably could have concluded that Father never sent the children anything.
The trial court also reasonably could have discounted Father’s blanket
assertion that Mother “would never agree” to his visitation. To the contrary, there
was ample evidence that Mother had been receptive to Father’s visitation requests,
both in the past and more recently when he was back in contact. Even when Father
was not in contact, Mother tried to facilitate visitation by taking the children to the
bakery hoping to see him. 8 Moreover, Father understood his lack of communication
potentially had an adverse impact on the children. He wanted to “take it slow” in
reestablishing a relationship with them “since they haven’t seen [him] for so long.”
Father further contends that his case is analogous to and should be governed
by Roosth v. Roosth, 889 S.W.2d 445 (Tex. App.—Houston [14th Dist.] 1994, writ
denied), a divorce case in which our court held a trial court abused its discretion in
setting a nonstandard possession order. However, Roosth involved former Family
8
Mother was receptive to and encouraged the children’s relationship with Father’s parents.
In addition, Mother facilitated the children’s relationship with their older half-sibling, a child with
whom Father no longer has a parent-child relationship because his parental rights were terminated.
13
Code section 14.03(d) pertaining to possession and access, which was repealed in
1995. 9 Roosth also is distinguishable because it was not a modification suit, and the
evidence did not support the trial court’s visitation concerns. See id. at 452.
Here, we conclude there was legally- and factually-sufficient evidence of a
material and substantial change in circumstances and that the almost eleven-year-old
standard possession order was not in the children’s best interest. Based on the above
standards, the trial court reasonably could have concluded that deviating from a
standard possession order and setting up Father’s visitation at times mutually agreed
in advance by the parties was a minimal restriction necessary to protect the children’s
best interest. Father has not demonstrated that the trial court abused its discretion.
We overrule Father’s second issue.
B. Increased child support and medical support
In his third issue, Father argues that the trial court abused its discretion in
modifying his monthly child-support payments without “any basis.” We disagree.
The best interest of the child also should be the trial court’s primary
consideration in determining whether to modify child support. See Tex. Fam.
Code Ann. § 156.402. At the time, Family Code section 156.401(a)(1)(A) provided
that the trial court may modify the prior child-support order if: “the circumstances
of the child or a person affected by the order have materially and substantially
changed since . . . the date of the order’s rendition.” Act of May 16, 2011, 82nd Leg.,
R.S., ch. 508, § 3, 2011 Tex. Gen. Laws 1264, 1264 (amended 2015). In determining
9
See Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 2(1), 1995 Tex. Gen. Laws 113, 282;
Roosth, 889 S.W.2d at 451 (“[Section] 14.03(d) precludes a trial court from denying a parent
possession of or access to a child unless the court finds ‘that parental possession or access is not
in the best interest of the child and that parental possession or access would endanger the physical
or emotional welfare of the child.’”).
14
whether a modification in child-support payments is appropriate, a trial court should
consider the circumstances of the child and the parents at the time of the prior child-
support order as compared to the circumstances existing at the time of trial in the
modification suit. See Scruggs v. Linn, 443 S.W.3d 373, 377 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (applying Family Code section 156.401(a)). A change in
conservatorship is a material and substantial change that can be considered in
modifying child-support provisions. In re J.O.A., No. 14-14-00968-CV, 2016 WL
1660288, at *9 (Tex. App.—Houston [14th Dist.] Apr. 26, 2016, no pet.) (mem. op.).
Upon a showing of the requisite changed circumstances, the trial court may
alter the child-support obligations. Scruggs, 443 S.W.3d at 377. The trial court has
broad discretion in setting child support, and in increasing or decreasing payments.
See id. The trial court’s child-support decision will not be overturned unless a clear
abuse of discretion is shown. Rodriguez v. Rodriguez, 860 S.W.2d 414, 415 (Tex.
1993) (citing Cohen v. Sims, 830 S.W.2d 285, 288 (Tex. App.—Houston [14th Dist.]
1992, writ denied)).
In determining whether a modification is warranted, the trial court “may
consider the child-support guidelines.” Tex. Fam. Code Ann. § 156.402(a). The trial
court also “may consider other relevant evidence in addition to the factors listed in
the guidelines.” Tex. Fam. Code Ann. § 156.402(b). The trial court’s consideration
of the child-support guidelines in a modification proceeding is discretionary, not
mandatory. See Friermood v. Friermood, 25 S.W.3d 758, 760 (Tex. App.—Houston
[14th Dist.] 2000, no pet.) (discussing Family Code section 156.402).
Although child support in line with the guidelines is presumed to be
reasonable, “[a] court may determine that the application of the guidelines would be
unjust or inappropriate under the circumstances.” Tex. Fam. Code Ann. § 154.122.
The trial court may order child support outside the guidelines if there is evidence
15
rebutting the presumption that such amount is in the best interest of the child and
justifying a variance. Tex. Fam. Code Ann. § 154.123 (outlining relevant factors trial
court should consider when determining whether application of guidelines would be
unjust or inappropriate).
We already have determined that the trial court did not abuse its discretion
with regard to modifying conservatorship. Accordingly, the trial court could modify
child support. See In re C.Z.P., No. 14-17-00565-CV, 2019 WL 386048, at *7 (Tex.
App.—Houston [14th Dist.] Jan. 31, 2019, no pet.) (mem. op.) (“[T]he reasons
justifying the modification of the conservatorship simultaneously operate to justify
the modification of child support.”); In re J.O.A., 2016 WL 1660288, at *9.
The trial court concluded that Father was intentionally underemployed, with
a potential gross monthly income of $3,333.33, net monthly income of $2,542.53,
and adjusted net monthly income of $2,410.53. See Tex. Fam. Code Ann.
§§ 154.061, 154.066(a) (“If the actual income of the obligor is significantly less than
what the obligor could earn because of intentional unemployment or
underemployment, the court may apply the support guidelines to the earning
potential of the obligor.”). The trial court used the guideline rate of 20.63 percent
when Father had two children before the court and two not before the court and noted
that guideline child support would be $500.00 per month. See Tex. Fam. Code Ann.
§ 154.129. The trial court concluded that assessing the guideline monthly amount
was not in K.A.M.S.’s and K.A.S.’s best interest and was unjust and inappropriate.
See Tex. Fam. Code Ann. § 154.122. The trial court cited several factors to justify
increasing the monthly amount to $650.00:
• the ages and needs of the children;
• the ability of the parents to contribute to the support of the
children;
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• any financial resources available for the support of the children;
• the amount of time of possession of and access to children;
• the amount of the obligee’s net resources, including earning
potential if the actual income is significantly less than what could
be earned because of intentional unemployment or
underemployment and including an increase or decrease in
income or income that may be attributed to property and assets;
• whether either party has managing conservatorship or actual
physical custody of another child;
• provision for health care insurance and payment of uninsured
medical expenses;
• special or extraordinary educational, health care, or other
expenses of the parties or of the children;
• positive or negative cash flow from any real and personal
property and assets, including a business and investments; and
• any other reason consistent with the best interest of the child,
taking into consideration the circumstances of the parents.
See Tex. Fam. Code Ann. § 154.123(b)(1–5), (7), (12–13), (15), (17).
Mother asked the trial court to award more than a standard guideline order of
child support because she believed Father is underemployed and because she has
“been supporting [the children] above and beyond what a normal order should be.”
Mother’s financial information statement stated that her monthly expenses are
$2,859 and her net monthly income is $2,516, leaving a monthly deficit of $343.00.
There was no evidence that Mother is underemployed; in fact, she previously
transferred jobs to work full-time to support the children. Mother covers “all the
expenses related to the” children, including extracurricular activities. The older child
who is 14 is involved in many school clubs, including art and anime, while the
younger child who is 12 is involved in soccer. Mother has provided for the children’s
health insurance since the 2013 modification order. Mother also testified that in 2014
the healthcare premium for the children more than doubled from $60 per month to
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$132 per month. As discussed above, Mother has been functioning as the sole
managing conservator and Father rarely exercised any visitation for the majority of
the children’s lives, especially since the 2013 modification order.
Father acknowledged that Mother has paid and continues to pay all the
children’s expenses over the $440 he pays in monthly child support and the $60 in
monthly cash medical support. There was evidence that Father had been earning
$40,000 per year at the grocer-supply company (about $769 per week) and now earns
$31,200 per year at the bakery, or about $600 per week—a reduction of 22 percent.
According to Father, although he previously made more money, he was not capable
of making more money than at the bakery. The only explanation Father provided for
quitting his grocer-supply job, which he had held for about seven years, was because
Mother allegedly stood outside waiting for him “that day it rained” and therefore he
“felt safer” working at the bakery with his parents. Father acknowledged, however,
that Mother lived in North Carolina from 2007 to 2015 and he was not “really
concerned” that she was going to show up outside his job every day. The trial court
could have discounted his explanation and reasonably concluded that Father was
intentionally underemployed.
In addition, there was some evidence Father may have access to other
financial resources. See Tex. Fam. Code Ann. § 154.062(b) (Supp.). Father cosigned
the loan for his parents’ house so they could “pass the credit” test and admitted that
his “name is on the house.” Although Father denied he had any ownership interest
in the bakery, Father cosigned a $50,000 loan Father’s parents took out to purchase
commercial baking equipment and start a home business. This home business
eventually became the physical bakery. Father claimed that he only earns $2,600 per
month but admitted that his monthly expenses including his current amount of child
support are about $3,135. Father claimed that he uses his income-tax refund to cover
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overages. In 2014, Father purchased his own house for $122,000. Father testified he
also used his income-tax refund to cover the $11,000 house down payment. There
was also evidence Father owns a 2015-model sports-utility vehicle.
Father fails to discuss section 154.123 in his brief, much less challenge all the
factors cited by the trial court. He primarily challenges the trial court’s determination
that he is intentionally underemployed. However, as indicated, the evidence amply
supports this finding. Father further contends Mother needed to prove that he
reduced his income for the purpose of decreasing his child-support payments.
However, this “extra proof requirement”—and the cases Father cites in support—
was rejected by the Supreme Court of Texas in Iliff v. Iliff, 339 S.W.3d 74 (Tex.
2011). See id. at 80–81, 83 & n.8 (“There must be a finding that the obligor is
intentionally unemployed or underemployed, meaning an obligor consciously
chooses to remain unemployed or underemployed. But there is nothing in the statute
[section 154.066] requiring further proof of the motive or purpose behind the
unemployment or underemployment.” (disapproving of, amongst others, Garner v.
Garner, 200 S.W.3d 303, 306–07 (Tex. App.—Dallas 2006, no pet.), Gaxiola v.
Garcia, 169 S.W.3d 426, 432 (Tex. App.—El Paso 2005, no pet.), Zorilla v.
Wahid, 83 S.W.3d 247, 253 (Tex. App.—Corpus Christi 2002, no pet.), and
DuBois v. DuBois, 956 S.W.2d 607, 610 (Tex. App.—Tyler 1997, no pet.))).
Under the applicable standards, we conclude there was some substantive and
probative evidence to support the trial court’s variance from the child-support
guidelines. Therefore, Father has not shown that the trial court abused its broad
discretion when it increased Father’s child-support and medical-support obligations.
We overrule Father’s third issue.
C. Attorney’s fees
In his fourth issue, Father challenges the attorney’s fees awarded to Mother.
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To the extent Father appears to argue that Mother did not specifically plead for an
award of attorney’s fees, we conclude Father did not raise this argument in the trial
court and therefore waived it. See Tex. R. App. P. 33.1(a); Tex. Ear Nose & Throat
Consultants, PLLC v. Jones, 470 S.W.3d 67, 86–87 (Tex. App.—Houston [14th
Dist.] 2015, no pet.). In any event, in her live petition, Mother expressly requested
that Father be ordered to pay her reasonable attorney’s fees.
Father primarily argues that Mother did not sufficiently prove the
reasonableness of her attorney’s fees. Father may raise this insufficiency-of-the-
evidence argument for the first time on appeal. See Tex. R. Civ. P. 324(a), (b); Tex.
R. App. P. 33.1(d); In re Q.D.T., No. 14-09-00696-CV, 2010 WL 4366125, at *9
(Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet.) (mem. op.).
Trial courts have broad discretion to award attorney’s fees in SAPCRs. See
Tex. Fam. Code Ann. § 106.002(a); Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002).
However, an award of attorney’s fees must be supported by evidence that the fees
are reasonable and necessary. See Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1,
10 (Tex. 1991); see also Rohrmoos Venture v. UTSW DVA Healthcare, LLP, No.
16-0006, 2019 WL 1873428, at *8 (Tex. Apr. 26, 2019) (“When fee-shifting is
authorized, whether by statute or contract, the party seeking a fee award must prove
the reasonableness and necessity of the requested attorney’s fees.”).
The Supreme Court of Texas recently explained:
It should have been clear from our opinions in El Apple [I, Ltd. v.
Olivas, 370 S.W.3d 757 (Tex. 2012)], [City of Laredo v.] Montano[,
414 S.W.3d 731, 736 (Tex. 2013) (per curiam)], and Long [v. Griffin,
442 S.W.3d 253, 255 (Tex. 2014) (per curiam),] that we intended the
lodestar analysis to apply to any situation in which an objective
calculation of reasonable hours worked times a reasonable rate can be
employed.
Rohrmoos Venture, 2019 WL 1873428, at *20. Generally, while contemporaneous
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billing records are not required, legally-sufficient evidence to establish a reasonable
and necessary fee needs to include a description of the particular services performed,
the identity of each attorney who and approximately when that attorney performed
the services, the reasonable amount of time required to perform the services, and the
reasonable hourly rate for each attorney performing the services. See id. at *20, *22,
*23. This base lodestar figure constitutes a presumptively reasonable and necessary
fee for prosecuting or defending the prevailing party’s claim through the litigation
process. Id. at *21–*22 (base lodestar accounts for most relevant considerations set
forth in Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex.
1997), and can be enhanced or reduced accordingly).
Even more recently, the Supreme Court of Texas held that this evidentiary
standard of proof is the same for attorney’s fees awarded as a fee-shifting sanction.
See Nath v. Tex. Children’s Hosp., No. 17-0110, 2019 WL 2553538, at *2–*3 (Tex.
June 21, 2019) (per curiam) (“Although this case deals with attorney’s fees awarded
through a sanctions order, the distinction is immaterial because all fee-shifting
situations require reasonableness.”). In doing so, the Nath Court abrogated our
precedent, Allied Associates, Inc. v. INA County Mutual Insurance Cos., 803 S.W.2d
799, 799 (Tex. App.—Houston [14th Dist.] 1991, no writ), which had held that proof
of reasonableness was not required when attorney’s fees were assessed as sanctions.
Father stipulated to Mother’s attorney’s qualifications. Mother’s attorney
testified that Mother retained her to litigate the case shortly after Mother filed her
initial petition to modify in January 2017. Mother’s attorney stated: “Since that time
there’s been work done by myself, my paralegal, as well as fees and costs involved
in the work.” Mother’s attorney testified to a total of $9,800 in attorney’s fees, which
she “believe[d] . . . are reasonable and necessary, given the complexity of the case
and the issues involved.” Mother’s attorney stated that such fees included $5,800 for
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what Mother spent so far in the litigation, as well as $2,000 “on top of that for the
time spent in court, the time to prepare for trial, the pretrial last month” and $2,000
“for the fees unpaid by [Father] from the last court’s order on the [motion to]
compel.” Mother’s attorney, however, did not further describe the particular tasks
performed during her representation of Mother. While there was only one attorney
on Mother’s case, a paralegal also worked on the case. Mother’s attorney did not
provide any hourly rate or how many hours she worked prosecuting Mother’s
modification case. Nor did Mother’s attorney provide any billing records.
Without details about the work done, how much time was spent on the tasks,
and how she arrived at the total fees in Mother’s case, we conclude that Mother’s
attorney’s testimony “lacks the substance required to uphold a fee award” and thus
is legally insufficient. See Nath, 2019 WL 2553538, at *2; Rohrmoos Venture, 2019
WL 1873428, at *25. Therefore, we sustain Father’s fourth issue and reverse the
order’s attorney’s-fee award. Because section-106.002 attorney’s fees are not
mandatory, we cannot remand for a redetermination of those fees. 10 But in light of
Nath’s recent abrogation of our long-standing attorney’s-fee sanction precedent
while this appeal was pending, we remand the case to the trial court in the interest
of justice for a redetermination of those fees previously awarded against Father as a
sanction. See Tex. R. App. P. 43.3(b).
10
Compare Rohrmoos Venture, 2019 WL 1873428, at *9, *26 (reversing attorney’s-fee
award and remanding for redetermination when lease provided for mandatory fees to prevailing
party), Jones v. Patterson, No. 11-17-00112-CV, 2019 WL 2051301, at *10 (Tex. App.—Eastland
May 9, 2019, no pet. h.) (mem. op.) (same when attorney’s-fee award mandatory under Texas
Theft Liability Act, Tex. Civ. Prac. & Rem. Code Ann. § 134.005(b)), and Sloane v. Goldberg
B’Nai B’Rith Towers, No. 14-17-00557-CV, 2019 WL 2000484, at *9 (Tex. App.—Houston [14th
Dist.] May 7, 2019, no pet. h.) (same when Property Code section 24.006 entitled prevailing
landlord to attorney’s fees), with In re Q.D.T., 2010 WL 4366125, at *10 (modifying order to
vacate SAPCR attorney’s-fee award).
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III. CONCLUSION
We reverse the portion of the trial court’s final order regarding attorney’s fees,
and remand the case to the trial court for further proceedings limited to Mother’s
attorney’s-fee discovery-sanction claim. We otherwise affirm the trial court’s final
order as challenged. See Tex. R. App. P. 43.2(a), (d).
/s/ Charles A. Spain
Justice
Panel consists of Justices Wise, Zimmerer, and Spain.
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