in the Interest of B.L.B, P.M.B., and C.K.B., Children

NUMBER 13-13-00594-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN RE B.L.B., P.M.B., & C.K.B., MINOR CHILDREN
On appeal from the 22nd District Court
of Hays County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Longoria
Memorandum Opinion by Justice Longoria
In this suit affecting the parent-child relationship (“SAPCR”), see TEX. FAM. CODE
ANN. § 101.032 (West, Westlaw through 2013 3d C.S.) (“Suit Affecting the Parent-Child
Relationship”), “M.B.,” the father of “B.L.B.,” “P.M.B.,” and “C.K.B.,”1 appeals a
1 In this SAPCR, we will refer to the parties by their initials only to protect their identities and privacy.
See TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2013 3d C.S.) (“On the motion of the parties
or on the court’s own motion, the appellate court in its opinion may identify the parties by fictitious names
or by their initials only.”).
modification order entered by the trial court2 on the request of “S.B.,” the mother of the
children, to increase the amount of M.B.’s periodic child support payments, reduce M.B.’s
rights to visit P.M.B. and C.K.B., the two children who remain under the age of eighteen,
and reduce M.B.’s decision-making authority with respect to the two minor children.3 M.B.
answered the SAPCR and filed a counterclaim seeking extended possession of the
children. See id. § 153.317 (West, Westlaw through 2013 3d C.S.) (“Alternative
Beginning and Ending Possession Times”). On August 22, 2013, after holding a bench
trial, the trial court entered a written order granting, in part, the relief requested by S.B.
by, among other things, (1) modifying M.B.’s rights of possession and access; (2)
modifying the amount of M.B.’s periodic child support payments to $2,250 per month, an
amount agreed to by the parties; (3) awarding $20,000 in attorney’s fees to S.B.; and (4)
ordering M.B. to “reimburse” S.B. “for 50% of all the tutoring fees for . . . [C.K.B.] incurred
on or before May 16, 2013.” Although the trial court’s order did not specifically state that
M.B.’s counterclaim for extended possession was denied, the order expressly included
the standard terms of possession, instead of extended possession, and stated “that all
relief requested in this case and not expressly granted is denied.” See Lehmann v. Har-
Con Corp., 39 S.W.3d 191, 203–04 (Tex. 2001) (“If there has been a full trial on the merits
2 See TEX. FAM. CODE ANN. § 156.001 (West, Westlaw through 2013 3d C.S.) (“A court with
continuing, exclusive jurisdiction may modify an order that provides for the conservatorship, support, or
possession of and access to a child.”); id. § 109.002(b) (“An appeal may be taken by any party to a suit
from a final order rendered under this title.”); Bilyeu v. Bilyeu, 86 S.W.3d 278, 280 (Tex. App.—Austin 2002,
no pet.) (“In a suit to modify a SAPCR, while any modifications made by the trial court may alter the effect
of the initial SAPCR provisions, the original decree remains final and a new final order results from the
modification proceeding.”).
3 This case was transferred from the Third Court of Appeals to this Court under a docket
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West,
Westlaw through 2013 3d C.S.).
2
either to the bench or before a jury, the language [to the effect that all relief not granted
is denied] indicates the court’s intention to finally dispose of the entire matter . . . .”).
In this appeal, M.B. raises three issues in which he asks this Court to answer the
following questions: (1) “[d]id the trial judge abuse his discretion in awarding . . . [S.B.]
$20,000 in attorney’s fees?”; (2) “[d]id the trial court err in not awarding . . . [M.B.] standard
alternative/extended possession . . . as provided in Section 153.317 [of] the Texas Family
Code?”; and (3) “[d]id the trial judge err in awarding a ‘reimbursement’ of an
unspecified/undetermined amount of ‘tutoring fees?’”
For the reasons set forth in greater detail below, we decide the issues presented
by M.B. as follows: (1) the trial court abused its discretion in awarding $20,000 in
attorney’s fees to S.B. because the only expert testimony to support the award was
inadmissible as a matter of law, see Woollett v. Matyastik, 23 S.W.3d 48, 52 (Tex. App.—
Austin 2000, pet. denied) (“Expert testimony is required to support an award of attorney’s
fees.”); (2) the trial court did not abuse its discretion by denying M.B.’s request for
extended possession because M.B. failed to produce evidence sufficient to rebut the
presumption that the standard terms of possession were in the best interest of the
children, see In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied)
(“There is a rebuttable presumption that the standard visitation order . . . is in the best
interest of the child.”); and (3) the trial court abused its discretion by ordering M.B. to
reimburse S.B. for C.K.B.’s tutoring fees because it amounted to an award of retroactive
child support in excess of the amount provided for by the guidelines and the trial court
failed to make the required findings for an order of child support exceeding the statutory
guidelines. See TEX. FAM. CODE ANN. § 154.130 (West, Westlaw through 2013 3d C.S.).
3
Based on the foregoing, we reverse the trial court’s order in part and remand the
case for further proceedings consistent with this opinion.
I. ATTORNEY’S FEES
In his first issue, M.B. challenges the trial court’s award of $20,000 in attorney’s
fees to S.B. M.B. contends that the trial court abused its discretion in admitting the
testimony of S.B.’s attorney over his objection that the attorney was not timely designated
as an expert witness, see TEX. R. CIV. P. 194, because the testimony was inadmissible
as a matter of law under the exclusionary rule provided in Rule 193.6(a) of the Texas
Rules of Civil Procedure. See TEX. R. CIV. P. 193.6(a). Additionally, M.B. contends that
the evidence is legally and factually insufficient to support the award of attorney’s fees.
A. Applicable Law
“As a general rule, the party seeking to recover attorney’s fees carries the burden
of proof.” Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). “Numerous
sections in the Family Code authorize a trial court to award attorney's fees in a SAPCR.”
Tucker v. Thomas, 419 S.W.3d 292, 296 (Tex. 2013). “Section 106.002, applicable to all
SAPCRs, invests a trial court with general discretion to render judgment for reasonable
attorney’s fees to be paid directly to a party’s attorney.” Id. (citing TEX. FAM. CODE ANN. §
106.002(a); 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.”)).
“The determination of reasonable attorney’s fees is a question for the trier of fact.”
Mercier v. Sw. Bell Yellow Pages, Inc., 214 S.W.3d 770, 775 (Tex. App.—Corpus Christi
2007, no pet.). “Although courts should consider several factors when awarding
attorney’s fees, a short hand version of these considerations is that the trial court may
4
award those fees that are ‘reasonable and necessary’ for the prosecution of the suit.”
Stewart Title, 822 S.W.2d at 10. This Court and the Austin Court of Appeals have
previously recognized in relevant part as follows:
Factors to be considered in determining the amount of reasonable
attorney’s fees include: (1) the time and labor required, novelty and difficulty
of the question presented, and the skill required to properly perform the
legal service; (2) the likelihood that the acceptance of employment
precluded other employment by the lawyer; (3) the fee customarily charged
in the locality for similar services; (4) the amount involved and the results
obtained; (5) the time limitations imposed by the client or by the
circumstances; (6) the nature and length of the professional relationship
with the client; (7) the experience, reputation, and ability of the lawyer
performing the services; and (8) whether the fee is fixed or contingent on
results obtained or uncertainty of collection before the legal services have
been rendered.
Mercier, 214 S.W.3d at 775–76 (citing, inter alia, Arthur Andersen & Co. v. Perry Equip.
Corp., 945 S.W.2d 812, 818 (Tex. 1997); see also EMC Mortg. Corp. v. Davis, 167 S.W.3d
406, 418 n.8 (Tex. App.—Austin 2005, pet. denied) (quoting factors listed in Arthur
Andersen). “The court can also look at the entire record, the evidence presented on
reasonableness, the amount in controversy, the common knowledge of the participants
as lawyers and judges, and the relative success of the parties.” Mercier, 214 S.W.3d at
776.
B. Standard of Review
“A trial court’s award of attorney’s fees is . . . reviewed for an abuse of discretion.”
Id. at 775 (citing, inter alia, Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881
(Tex.1990) (per curiam)). “A trial court abuses its discretion when it acts arbitrarily and
unreasonably and without reference to guiding rules and principles.” Id. (citing Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). “When reviewing
matters reserved for the trial court’s discretion, a court of appeals may not substitute its
5
own judgment for that of the trial court.” Id. (citing Flores v. Fourth Court of Appeals, 777
S.W.2d 38, 41–42 (Tex. 1989)). “Under an abuse of discretion standard, legal and factual
sufficiency challenges to the evidence are not independent grounds of error, but are
relevant factors in assessing whether the trial court abused its discretion.” Zeifman v.
Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied).
“A legal sufficiency challenge will be sustained if the record reveals that evidence
offered to prove a vital fact is no more than a scintilla.” Kia Motors Corp. v. Ruiz, No. 11-
0709, 2014 WL 1258169, at *7 (Tex. Mar. 28, 2014) (citing King Ranch, Inc. v. Chapman,
118 S.W.3d 742, 751 (Tex. 2003)). “Evidence does not exceed a scintilla if it is ‘so weak
as to do no more than create a mere surmise or suspicion’ that the fact exists.” Id.
(quoting Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred
v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983))).
“Our ultimate objective in conducting a no-evidence review is to determine
‘whether the evidence at trial would enable reasonable and fair-minded jurors to reach
the verdict.’” Id. (quoting Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009)).
“Thus, in reviewing the record, we ‘credit favorable evidence if reasonable jurors could,
and disregard contrary evidence unless reasonable jurors could not.’” Id. (quoting City of
Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). The Texas Supreme Court has
explained in relevant part as follows:
[A] legal sufficiency issue will be sustained if the record reveals one of the
following: (1) the complete absence of a vital fact, (2) the court is barred by
rules of law or of evidence from giving weight to the only evidence offered
to prove a vital fact, (3) the evidence offered to prove a vital fact is no more
than a scintilla, or (4) the evidence established conclusively the opposite of
the vital fact.
Whirlpool Corp., 298 S.W.3d at 639.
6
In a factual sufficiency review, we consider and weigh all the evidence, both
supporting and contradicting the finding.” Bryan v. Gordon, 384 S.W.3d 908, 913 (Tex.
App.—Houston [14th Dist.] 2012, no pet.) (citing Mar. Overseas Corp. v. Ellis, 971 S.W.2d
402, 406–07 (Tex. 1998)). “We set aside the finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong and unjust.” Id. (citing Pool
v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)). “We may not substitute our own
judgment for that of the trier of fact or pass upon the credibility of the witnesses.” Id. “The
amount of evidence necessary to affirm a judgment is far less than that necessary to
reverse a judgment.” Id. at 913–14.
“The court of appeals is not a fact finder.” Ellis, 971 S.W.2d at 407. “Accordingly,
the court of appeals may not pass upon the witnesses’ credibility or substitute its judgment
for that of the . . . [trier of fact], even if the evidence would clearly support a different
result.” Id. “If the court of appeals determines that the evidence supports the . . . verdict,
it is not required to detail all the evidence supporting the judgment when it affirms the trial
court’s judgment for actual damages.” Id. “On the other hand, when reversing a trial
court’s judgment for factual insufficiency, the court of appeals must detail all the evidence
relevant to the issue and clearly state why the . . . finding is factually insufficient or so
against the great weight and preponderance of the evidence that it is manifestly unjust.”
Id. “The court of appeals must explain how the contrary evidence greatly outweighs the
evidence supporting the verdict.” Id.
The Texas Supreme Court has indicated that reviewing courts may not uphold the
sufficiency of the evidence to support a verdict based on evidence “which should have
been excluded by the trial court.” Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897,
7
909 (Tex. 2004). For instance, in Ramirez, the Texas Supreme Court held that the
testimony of an unidentified witness was “no evidence of causation” because it was
“hearsay that should have been excluded by the trial court.” Id. Similarly, in Whirlpool
Corporation, the Texas Supreme Court held that “unreliable scientific evidence or expert
testimony is not only inadmissible, but also . . . insufficient to support a verdict.” Whirlpool
Corp., 298 S.W.3d at 638. In Coastal Transport, the Texas Supreme Court reiterated that
“incompetent evidence . . . cannot support a judgment.” Coastal Transport Co., Inc. v.
Crown Cent. Petroleum Corp., 136 S.W.3d 227, 232 (Tex. 2004).
In general, “incompetent evidence” is “not relevant evidence, because it does not
tend to make the existence of a material fact ‘more probable or less probable.’” Id.
(quoting TEX. R. EVID. 401). Therefore, “conclusory statements [are incompetent
evidence and] cannot support a judgment even when no objection was made to the
statements at trial.” Id. That is, “[b]are, baseless opinions will not support a judgment
even if there is no objection to their admission in evidence.” City of San Antonio v.
Pollock, 284 S.W.3d 809, 816 (Tex. 2009).
In this case, our analysis involves the second sufficiency point Justice Calvert
identified in his widely cited article that applies when “the court is barred by rules of law
or of evidence from giving weight to the only evidence offered to prove a vital fact.” Robert
W. Calvert, “No Evidence” and “Insufficient Evidence” Points of Error, 38 TEX. L. REV. 361,
362–63 (1960). Justice Calvert explained this area of the law in relevant part as follows:
[This] situation poses only law questions. The so-called evidence is
present, and if it may be given probative force at all it will sustain a verdict
and judgment. If, however, it must be discarded because it is hearsay or
because its admission and consideration violates the parol evidence rule,
or for some similar reason, there will be no evidence left on which the verdict
and judgment may rest.
8
Id. at 363 (footnotes omitted).4
C. Failure to Timely Identify S.B.’s Attorney as an Expert Witness
M.B. contends that the trial court erred in admitting the testimony of S.B.’s attorney
because S.B. “failed to properly identify her counsel (or anyone else) as an expert on
attorney’s fees in response to” M.B.’s request for disclosure. See TEX. R. CIV. P. 194.
“Under Rule 193.6, discovery that is not timely disclosed and witnesses that are
not timely identified are inadmissible as evidence.” Fort Brown Villas III Condo. Ass’n,
Inc. v. Gillenwater, 285 S.W.3d 879, 881 (Tex. 2009) (citing TEX. R. CIV. P. 193.6(a)). “A
party who fails to timely designate an expert has the burden of establishing good cause
or a lack of unfair surprise or prejudice before the trial court may admit the evidence.” Id.
(citing TEX. R. CIV. P. 193.6(b)).
“The good cause exception permits a trial court to excuse a failure to comply with
discovery in difficult or impossible circumstances.” Alvarado v. Farah Mfg. Co. Inc., 830
S.W.2d 911, 914 (Tex. 1992). “The trial court has discretion to determine whether the
offering party has met his burden of showing good cause to admit the testimony; but the
trial court has no discretion to admit testimony excluded by the rule without a showing of
good cause.” Id.
Similarly, “[a] finding of . . . lack of unfair surprise or prejudice to the adverse party
must be supported by the record.” In re Kings Ridge Homeowners Ass’n, Inc., 303
S.W.3d 773, 783 (Tex. App.—Fort Worth 2009, orig. proceeding). “The trial court has
4 In the context of a criminal case, the rule is different because the reviewing court “considers all
evidence in the record of the trial, whether it was admissible or inadmissible.” Dewberry v. State, 4 S.W.3d
735, 740 (Tex. Crim. App. 1999). We also note that Rule 802 of the Texas Rules of Evidence states in
relevant part that “[i]nadmissible hearsay admitted without objection shall not be denied probative value
merely because it is hearsay.” TEX. R. EVID. 802.
9
discretion to determine whether the offering party met this burden,” Bellino v. Comm’n for
Lawyer Discipline, 124 S.W.3d 380, 383 (Tex. App.—Dallas 2003, pet. denied), but the
trial court abuses its discretion if no “probative and substantive evidence supports the . .
. [ruling].” In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.—Dallas 2008, no pet.).
D. Discussion
In this case, it is undisputed that S.B. “failed to properly identify her counsel (or
anyone else) as an expert on attorney’s fees in response to” M.B.’s request for disclosure.
See TEX. R. CIV. P. 194. Furthermore, at trial, S.B. failed to establish, and in fact, did not
even attempt to establish, good cause or lack of unfair surprise or prejudice to M.B. See
TEX. R. CIV. P. 193.6(b). Nevertheless, the trial court overruled M.B.’s objection and
allowed S.B.’s attorney to testify regarding his attorney’s fees, stating that S.B.’s attorney
did not “have to be [designated as] an expert just to say how much he’s entitled to . . . [in
attorney’s fees].”
On appeal, M.B. argues that the trial court erred in overruling his objection to the
testimony by S.B.’s attorney because S.B. “offered no evidence to meet her burden of
showing good cause or the lack of unfair surprise or unfair prejudice.” See id. S.B.
responds that M.B. “was certainly not surprised by . . . [S.B.’s] attorney[’s] fee request”
and therefore the trial court “did not abuse its discretion in awarding attorney[’s] fees” to
S.B. We disagree with S.B. on this point.
At trial, S.B. did not attempt to meet her burden of showing good cause or the lack
of unfair surprise or unfair prejudice. See id. Furthermore, the record does not support
an implied finding of good cause or the lack of unfair surprise or unfair prejudice. See id.
Instead, the trial court expressly stated that its reason for allowing S.B.’s attorney to testify
10
over M.B.’s objection was that there was no case law that S.B.’s attorney was “considered
an expert for his own attorney’s fees” and thus he did not need to be designated. We
believe this was incorrect.
“Expert testimony is required to support an award of attorney’s fees.” Woollett, 23
S.W.3d at 52; see also Twin City Fire Ins. Co. v. Vega-Garcia, 223 S.W.3d 762, 769 (Tex.
App.—Dallas 2007, pet. denied) (“The issue of reasonableness and necessity of
attorney’s fees requires expert testimony.”). We recognize that the Texas Supreme Court
has previously acknowledged that an attorney’s testimony about the reasonableness of
his or her fees is different than other expert testimony, when it explained in relevant part
as follows:
An attorney’s testimony about the reasonableness of his or her own fees is
not like other expert witness testimony. Although rooted in the attorney’s
experience and expertise, it also consists of the attorney’s personal
knowledge about the underlying work and its particular value to the client.
The testimony is similar to that of a property owner whose personal
knowledge qualifies him to give an opinion about his own property’s value.
Garcia v. Gomez, 319 S.W.3d 638, 641 (Tex. 2010). Although an attorney’s testimony
about the reasonableness of his or her own fees “is not like other expert witness
testimony,” it is still considered the testimony of an expert witness. Id.; Gulf Paving Co.
v. Lofstedt, 188 S.W.2d 155, 161 (Tex. 1945) (“This testimony [of attorneys regarding the
value of their services] is opinion evidence of expert witnesses . . . .”); Bahar v. Lyon Fin.
Servs., Inc., 330 S.W.3d 379, 391 (Tex. App.—Austin 2010, pet. denied) (holding that
requests for attorney’s fees must be “supported by expert testimony of the attorney’s
hourly rate and hours expended”) (quotations omitted). Furthermore, “[a] court does not
have authority to adjudicate the reasonableness of attorney’s fees on judicial knowledge
without the benefit of evidence [in the form of expert testimony].” Woollett, 23 S.W.3d at
11
52. Accordingly, the trial court erred in concluding that S.B.’s attorney was not
“considered an expert for his own attorney’s fees.”
On appeal, S.B. argues that the trial court did not commit reversible error by
allowing S.B.’s attorney to testify because M.B. “essentially received a continuance of
over 2 weeks before the time the attorney[’s] fees were officially put on the record during
. . . [S.B.’s] opening argument and the time of the actual testimony.” See TEX. R. CIV. P.
193.6(c) (stating that “[e]ven if the party seeking to introduce the evidence or call the
witness fails to carry the burden under paragraph (b), the court may grant a continuance
or temporarily postpone the trial to allow a response to be made, amended, or
supplemented, and to allow opposing parties to conduct discovery regarding any new
information present by that response”). We disagree that M.B. was granted a
continuance.
In response to M.B.’s objection about S.B.’s failure to designate her attorney as an
expert witness, the trial court did not stop the trial; rather, the trial court stated that it would
“let . . . [S.B.’s attorney] go ahead and state what you want. I’ll note your objection. If,
after reviewing the case law, I’m of the opinion that what you say is correct, then I’ll just
make a finding on that.” S.B.’s attorney then testified over M.B.’s objections.
Based on the foregoing, we conclude that the trial court did not grant a
continuance. Rather, the trial court admitted the testimony over M.B.’s objection. We
further conclude that the trial court abused its discretion by admitting the testimony of
S.B.’s attorney because S.B. failed to timely identify him as an expert witness and failed
to establish, in fact, did not even attempt to establish, good cause or lack of unfair surprise
or prejudice to M.B., which rendered the testimony inadmissible as a matter of law. See
12
TEX. R. CIV. P. 193.6(a) (“A party who fails to make, amend, or supplement a discovery
response in a timely manner may not introduce in evidence the material or information
that was not timely disclosed, or offer the testimony of a witness (other than a named
party) who was not timely identified . . . .”); E.F. Hutton & Co., Inc. v. Youngblood, 741
S.W.2d 363, 364 (Tex. 1987) (holding that parties were “not entitled to attorney’s fees”
because they “failed to designate an expert witness regarding their claim for ‘reasonable
and necessary’ attorney’s fees” in case where parties’ attorney “called himself and one
other attorney to testify” and the trial court overruled adverse party’s objection).
Therefore, the trial court had no discretion to admit the testimony over M.B.’s objection.
See In re B.T., 323 S.W.3d 158, 160 (Tex. 2010) (“A trial court has no ‘discretion’ in
determining what the law is or applying the law to the facts.”) (quoting Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992)); Whirlpool Corp., 298 S.W.3d at 638 (“[A] trial court’s
ruling as to admissibility of evidence . . . is reviewed for abuse of discretion.”).
Finally, we note that the testimony of S.B.’s attorney was the only expert testimony
offered to support the award of attorney’s fees. See Woollett, 23 S.W.3d at 52 (“Expert
testimony is required to support an award of attorney’s fees.”). Since the testimony was
inadmissible as a matter of law under Rule 193.6(a), see TEX. R. CIV. P. 193.6(a), and the
trial court was therefore barred by rules of law or of evidence from giving weight to the
only evidence offered to prove a vital fact, see Whirlpool Corp., 298 S.W.3d at 639, we
conclude that the evidence was legally insufficient to support the award of attorney’s fees.
See id. Furthermore, because “[a] court does not have authority to adjudicate the
reasonableness of attorney’s fees on judicial knowledge without the benefit of evidence
[in the form of expert testimony],” we conclude that the trial court abused its discretion in
13
awarding $20,000 in attorney’s fees to S.B. Woollett, 23 S.W.3d at 52 (holding that “the
district court adjudicated the reasonableness of the [attorney’s] fees without the benefit
of evidence . . . [and therefore] erred in granting the application [for fees]”).
Although we have concluded that the evidence was legally insufficient to support
the award of attorney’s fees, we do not render a take nothing judgment against S.B.
because an award of attorney’s fees is discretionary with the trial court, not this Court.
See Edwards Aquifer Auth. v. Chem. Line, Ltd., 291 S.W.3d 392, 404 (Tex. 2009) (noting
that award of attorney’s fees involved “considerations addressed to the trial court’s
discretion,” holding that “the trial court should have the opportunity to reconsider its
award,” and “remand[ing] to the trial court for further proceedings consistent with this
opinion”). We remand the case for further proceedings consistent with this opinion rather
than rendering a judgment against S.B. because rendering a judgment would usurp the
trial court’s discretion to determine whether to award attorney’s fees in this SAPCR. See
Woollett, 23 S.W.3d at 53 (holding that “the district court erred in ordering fees without
supporting proof or an evidentiary hearing,” reversing “the district court’s order approving
. . . attorney’s fees,” and “remand[ing] the cause to the district court for reconsideration of
the application in light of this opinion”). In short, the error calls for a new trial on attorney’s
fees. See TEX. R. APP. P. 44.1(b) (“Error Affecting Only Part of Case”); El Apple I, Ltd. v.
Olivas, 370 S.W.3d 757, 765 (Tex. 2012) (“[W]e hold that the fee application and proof in
this case did not provide the trial court legally sufficient evidence to calculate a reasonable
fee award using the lodestar method. . . . [W]e reverse the court of appeals’ judgment
affirming the attorney’s fee award and remand to the trial court for a redetermination of
fees consistent with this opinion.”).
14
We do not address the distinct, subsidiary issue raised by M.B. about whether the
evidence was factually sufficient to support the trial court’s award of attorney’s fees, see
Pool, 715 S.W.2d at 635, because even if we sustained that point, M.B. would not be
entitled to relief beyond what we have already granted. See TEX. R. APP. P. 47.1.
Accordingly, without reaching the factual sufficiency issue raised by M.B., we conclude
that the trial court abused its discretion in awarding $20,000 in attorney’s fees to S.B.
See Zeifman, 212 S.W.3d at 587.
We sustain M.B.’s first issue.
II. ALTERNATE POSSESSION SCHEDULE
In his second issue, M.B. contends that the trial court erred in failing to grant his
request for alternate or extended visitation with his children. See TEX. FAM. CODE ANN. §
153.317(a).
A. Applicable Law
Before it was amended by the Texas Legislature in 2009, former Section 153.317
of the Texas Family Code provided as follows:
If a child is enrolled in school and the possessory conservator elects before
or at the time of the rendition of the original or modification order, the
standard order must expressly provide that the possessory conservator’s
period of possession shall begin or end, or both, at a different time expressly
set in the standard order under and within the range of alternative times
provided by one or both of the following subdivisions:
(1) instead of a period of possession by a possessory conservator
beginning at 6 p.m. on the day school recesses, the period of
possession may be set in the standard possession order to begin at
the time the child's school is regularly dismissed or at any time
between the time the child’s school is regularly dismissed and 6 p.m.;
and
(2) except for Thursday evening possession, instead of a period of
possession by a possessory conservator ending at 6 p.m. on the day
15
before school resumes, the period of possession may be set in the
standard order to end at the time school resumes.
Act of May 27, 2003, 78th Leg., R.S., ch. 1036, § 15, 2003 Tex. Gen. Laws 2987, 2992
(amended in 2009).
“Former Section 153.137 did not require an additional showing or finding of
changed circumstances before the trial court could incorporate the election.” Mason-
Murphy v. Grabowski, 317 S.W.3d 923, 927 (Tex. App.—Austin 2010, no pet.). “The
legislature did not include such a requirement.” Id. “The absence of such a requirement
indicates that the legislature intended for the finding that the standard possession order
was in the child’s best interest to include the range of choices available to the electing
parent.” Id.5 “Under former Family Code Section 153.317, that finding was implicitly
rebuttably presumed to have been incorporated in the finding that the standard
possession order was in . . . [the child’s] best interest.” Id. “That election was, as all
decisions on issues of possession of a child are, subject to the requirement that the best
interest of the child ‘shall always be the primary consideration of the court.’” Id. (quoting
TEX. FAM. CODE ANN. § 153.002).
In 2009, the Texas Legislature amended Section 153.317 to expressly state that
the trial court has “discretion to reject a parent’s election if it is not in the child’s best
interest.” Id. at 928. “The statute now expressly requires the court to incorporate the
conservator’s election of extended standard possession ‘unless the court finds that the
election is not in the best interest of the child.’” Id. (quoting TEX FAM. CODE ANN. §
153.317(a)). According to the Austin Court of Appeals, under the current version of the
5 "Standard possession order" means “an order that provides a parent with rights of possession of
a child in accordance with the terms and conditions of Subchapter F, Chapter 153.” TEX. FAM. CODE ANN.
§ 101.029 (West, Westlaw through 2013 3d C.S.) (“Standard Possession Order”).
16
statute, “[t]he parent’s election does not trigger the need for an additional finding that
extended possession is in the child’s best interest, but the statute allows the court to reject
the election if it affirmatively finds that the extended possession is not in the child’s best
interest.” Id.
B. Standard of Review
“The trial court is given wide latitude in determining the best interests of a minor
child.” Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). “An appellate court may
reverse the trial court’s ruling only if the trial court acted without reference to any guiding
rules and principles, such that its ruling was arbitrary or unreasonable.” Low v. Henry,
221 S.W.3d. 609, 614 (Tex. 2007).
C. Relevant Facts
In this case, at the time of the final hearing, M.B. made an election for the alternate
possession schedule pursuant to Section 153.317(a) of the Texas Family Code. See
TEX. FAM. CODE ANN. § 153.317(a). The trial court denied the request without making an
affirmative statement that the alternate possession schedule was not in the best interest
of the children. However, the trial court’s modification order expressly included the
standard terms of possession, instead of alternate possession, after stating “that the
following orders are in the best interest of the children.”
D. Discussion
The parties have presented what appears to be a conflict in the case law from two
intermediate courts of appeals. On the one hand, the Austin Court of Appeals, which we
are required to follow in this case because it was transferred to us from that court, see
TEX. R. APP. P. 41.3, has indicated that the trial court must enter an affirmative finding
17
that extended possession is not in the child’s best interest before denying a parent’s
election for extended possession. See Mason-Murphy, 317 S.W.3d at 928. On the other
hand, the Fort Worth Court of Appeals, in a memorandum opinion cited by S.B., has held
that “no requirement exists that the trial court must make a formal, written not-in-the-best-
interest-of-the-child finding before denying full extended possession.” Ruiz v. Ruiz, No.
02-12-00136-CV, 2013 WL 530958, at *4 (Tex. App.—Fort Worth Feb. 14, 2013, no pet.)
(mem. op.). It is sufficient, according to the Fort Worth Court of Appeals, that the trial
court “implicitly” found that it was not in the child’s best interest for there to be extended
possession. Id.
Although we appreciate the perceived conflict between these two opinions, we
ultimately conclude that they are not irreconcilable and do not require reversal of the trial
court’s order in this case. The statute requires the trial court to incorporate the election
of extended possession “unless the court finds that the election is not in the best interest
of the child.” TEX. FAM. CODE ANN. § 153.317(a). Here, the trial court declined to
incorporate M.B.’s election of extended possession into its written modification order, after
specifically stating “that the following orders are in the best interest of the children.” Thus,
the trial court affirmatively found that its modification order, which effectively denied M.B.’s
election of extended possession, was “in the best interest of the children.” In our view,
this fulfilled the requirement of Section 153.317(a) that the trial court incorporate the
election of extended possession “unless the court finds that the election is not in the best
interest of the child.” Id. To the extent that the precedent of the Austin Court of Appeals
in Mason-Murphy could be read to require that the trial court make a formal, written not-
in-the-best-interest-of-the-child finding before denying full extended possession, we
18
believe that the language in the trial court’s written order accomplished that function.
Furthermore, we believe that this particular interpretation of the case is untenable in light
of the case as a whole.
In Mason-Murphy, the appellant complained that “the trial court erred by adopting
in its . . . written order [the appellee’s] . . . election to retain possession until the beginning
of school on Monday without hearing additional evidence or making additional findings
and conclusions supporting the change.” Mason-Murphy, 317 S.W.3d at 924. The Austin
Court of Appeals affirmed the trial court’s order under former Section 153.317 of the
Texas Family Code. The court concluded that “[f]ormer section 153.137 did not require
a separate showing or finding that the extended possession elected is in the child’s best
interest before the trial court could incorporate the election.” Id. at 927. According to the
court, “[t]he absence of such a requirement indicates that the legislature intended for the
finding that the standard possession order was in the child’s best interest to include the
range of choices available to the electing parent.” Id.
However, as the Austin Court of Appeals recognized in Mason-Murphy, the Texas
Legislature subsequently changed the law in 2009 to give the trial courts “discretion to
reject a parent’s election if it is not in the child’s best interest.” Id. at 928. The Austin
Court of Appeals has also noted that a “parent’s election does not trigger the need for an
additional finding that extended possession is in the child’s best interest . . . .” Id. at 929.
Although the court went on to say that “the statute allows the court to reject the election
if it affirmatively finds that the extended possession is not in the child’s best interest,” the
court did not address or purport to address the situation presented here, where the trial
court made a general finding that its orders were in the best interest of the children and
19
then in the same orders effectively denied the parent’s election for extended possession
without making an additional best interest finding as to the election for extended
possession. Id.
Although M.B. contends that Mason-Murphy supports his position, we disagree.
The underlying rationale for the court’s decision was that under the former statute, the
trial court had no discretion to reject a parent’s “election so long as it found the standard
possession order to be in . . . [the child’s] best interest.” Id. As the Austin Court of Appeals
then noted, “[t]he statute now expressly requires the court to incorporate the conservator’s
election of extended standard possession ‘unless the court finds that the election is not
in the best interest of the child.’” Id. (quoting TEX. FAM. CODE ANN. § 153.317(a)). From
this, it follows that to reject a parent’s election for extended possession, the trial court
does not have to find that the standard possession order is not in the child’s best interest,
only that the election is not in the child’s best interest. See TEX. FAM. CODE ANN. §
153.317(a). As the Fourteenth Court of Appeals explained in a relatively recent
memorandum opinion, one of the few opinions to address the revised version of Section
153.317, “the trial court may enter an expanded possession order [only] if it determines
that expanded possession is in the child’s best interest.” Popek v. Popek, No. 14-10-
00201-CV, 2011 WL 2566185, at *6 (Tex. App.—Houston [14th Dist.] June 30, 2011, no
pet.) (mem. op.). We conclude that M.B. has not established reversible error in the trial
court’s denial of his election for extended possession.
Furthermore, to the extent that M.B. challenges the legal and factual sufficiency of
the trial court’s finding that extended possession was not in the children’s best interest,
we reiterate that under the applicable standard of review, which is abuse of discretion,
20
legal and factual sufficiency of the evidence are not independent grounds for reversing
the trial court’s judgment. Zeifman, 212 S.W.3d at 587. Rather, they are “relevant factors”
in determining whether the trial court abused its discretion. Id.
A trial court does not abuse its discretion when it makes a decision based on
conflicting evidence. Burns v. Burns, 116 S.W.3d 916, 921 (Tex. App.—Dallas 2003, no
pet.). If some evidence of a substantive and probative character exists to support the trial
court’s decision, there is no abuse of discretion. In re C.C.J., 244 S.W.3d at 917; see
also In re J.C., 346 S.W.3d 189, 193 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
In this case, M.B. contends that “there was significant conflict between the parents”
and “that a solution to a substantial part of that would be [to] drop off and pick-up the
children at school rather than the parent’s [sic] homes.” M.B. further contends that “both
parents had recognized that P.M.B. wanted more time with . . . [M.B.].” In addition,
according to M.B., “extended time would also allow additional tutoring time with . . . [M.B.]
and C.K.B.” Furthermore, M.B. notes that there was evidence “that C.K.B. had to walk to
. . . [S.B.’s] home from school, that . . . [S.B.] was not there when she arrived, and C.K.B.
as a young child was home alone at times.” Based on the foregoing, M.B. argues that
there was no evidence or insufficient evidence that granting M.B. extended possession
was not in the children’s best interest.
For her part, S.B. has not identified any specific evidence in support of the trial
court’s determination that extended possession was not in the children’s best interest.
Instead, she generally states that “the testimony from the children’s counselor and
interviewing the children in chambers (among other witnesses) . . . [gave the trial court a
21
sufficient basis] in determining the alternate possession schedule for C.K.B. was not in
her best interests.” Counsel has not addressed the issue as it relates to P.M.B.
“The trial court is in a better position to determine what will be in the best interest
of the child since it faced the parties and their witnesses, observed their demeanor, and
had the opportunity to evaluate the claims made by each parent.” In re J.R.D., 169
S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied). Furthermore, “[t]here is a
rebuttable presumption that the standard visitation order provides reasonable minimum
possession of a child for a parent named as a joint managing conservator and that such
possession is in the best interest of the child.” Id.
Although M.B. has cited some evidence in support of his argument that the trial
court abused its discretion in denying his election for extended possession, we conclude
that he has not rebutted the presumption that the standard visitation order provides
reasonable minimum possession of the children and that such possession is in the best
interest of the children. See id.
We overrule M.B.’s second issue.
III. TUTORING FEES
Finally, in his third issue, M.B. contends that the trial court erred in ordering that
he must “within 30 days reimburse . . . [S.B.] for 50% of all the tutoring fees for [C.K.B.]
incurred on or before May 16, 2013” because the trial court effectively awarded child
support in excess of the amount provided for in the statutory guidelines without making
the affirmative findings required by the Texas Family Code. See TEX. FAM. CODE ANN. §
154.130.
22
A. Applicable Law
“A trial court may order a parent to pay retroactive child support.” Ayala v. Ayala,
387 S.W.3d 721, 727 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (citing T EX. FAM.
CODE ANN. §§ 154.009 & 154.131). However, the trial court may do so only in limited
circumstances—for instance, in those circumstances set forth in Section 154.009 as
follows: “The court may order a parent to pay retroactive child support if the parent: (1)
has not previously been ordered to pay support for the child; and (2) was not a party to a
suit in which support was ordered.” TEX. FAM. CODE ANN. § 154.009 (West, Westlaw
through 2013 3d C.S.). Additionally, and importantly, for purposes of this case, the trial
court may order a different type of retroactive child support because an existing “support
order may be modified with regard to the amount of support ordered . . . as to obligations
accruing after the earlier of: (1) the date of service of citation; or (2) an appearance in the
suit to modify.” Id. § 156.401(b) (West, Westlaw through 2013 3d C.S.).
The Texas Family Code requires “findings in child support order[s],” including
orders for retroactive child support, in relevant part as follows:
(a) Without regard to Rules 296 through 299, Texas Rules of Civil
Procedure, in rendering an order of child support, the court shall make the
findings required by Subsection (b) if:
(1) a party files a written request with the court not later than 10 days
after the date of the hearing;
(2) a party makes an oral request in open court during the hearing;
or
(3) the amount of child support ordered by the court varies from the
amount computed by applying the percentage guidelines under
Section 154.125 or 154.129, as applicable.
23
(a-1) If findings under this section are required as a result of the request by
a party under Subsection (a)(1) or (2), the court shall make and enter the
findings not later than the 15th day after the date of the party’s request.
(b) If findings are required by this section, the court shall state whether the
application of the guidelines would be unjust or inappropriate and shall state
the following in the child support order:
“(1) the net resources of the obligor per month are $__________;
“(2) the net resources of the obligee per month are $__________;
“(3) the percentage applied to the obligor’s net resources for child
support is __________%; and
“(4) if applicable, the specific reasons that the amount of child
support per month ordered by the court varies from the amount
computed by applying the percentage guidelines under Section
154.125 or 154.129, as applicable.”
TEX. FAM. CODE ANN. § 154.130 (emphasis added).
“To impose child support beyond the guidelines, the record must contain evidence
of the ‘proven needs’ of the child.” In re M.A.M., 346 S.W.3d 10, 17 (Tex. App.—Dallas
2011, pet. denied) (citing TEX. FAM. CODE ANN. § 154.126(a) & (b)). “To establish private
school [or tutoring] as a proven need, the evidence must show something special that
makes the particular child need or especially benefit from some aspect of non-public
schooling [or tutoring].” Id.
B. Standard of Review
“A court’s order of child support will not be disturbed on appeal unless the
complaining party can show a clear abuse of discretion.” Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990). “The test for abuse of discretion is whether the trial court acted
without reference to any guiding rules or principles; in other words, whether the act was
arbitrary or unreasonable.” Id.
24
C. Relevant Facts
M.B. was served with citation on May 3, 2011. In its modification order entered on
August 22, 2013, the trial court ordered M.B. to pay child support in the amount provided
in the guidelines. It further ordered “that both parties shall take . . . [C.K.B.] to a certified
academic tutoring institution on an as needed basis, as recommended by her teachers”
and that M.B. “shall be 100% responsible for the tutoring fees of . . . [C.K.B.].” Finally,
the trial court ordered M.B. to “reimburse” S.B. “for 50% of all the tutoring fees for . . .
[C.K.B.] incurred on or before May 16, 2013.”
D. Discussion
As a threshold matter, we note that S.B. does not dispute M.B.’s characterization
of the tutoring fees reimbursement obligation as an award of retroactive child support. In
fact, S.B. argues that “it was certainly logical for the court to find that the tutoring costs of
C.K.B. are certainly the needs of the child and the payment of such by [M.B.] . . . are
certainly within the best interests of C.K.B.” “Therefore,” according to S.B., “it was not an
abuse of discretion by the trial court to order that . . . [M.B.] pay . . . past . . . cost[s] of the
tutoring based on the evidence presented.”
On appeal, M.B. complains about the “reimbursement” aspect of the order with
respect to the tutoring fees.6 M.B. argues that he “was ordered to pay guideline child
support and there was no evidence admitted to show that the needs of C.K.B. required
support above what would result from payment of the guideline amount.” M.B. further
argues that “[t]here were no findings supporting deviation from the child support
6 M.B. has not asserted that the trial court erred by ordering him to pay “100%” of the future costs
of the tutoring.
25
guidelines in the order, as required by Section 154.130 of the Texas Family Code.” See
TEX. FAM. CODE ANN. § 154.130.
“[A] court’s consideration of the child support guidelines in a modification
proceeding is discretionary, not mandatory.” Melton v. Toomey, 350 S.W.3d 235, 238
(Tex. App.—San Antonio 2011, no pet.). “The trial court has the discretion to deviate
from the guidelines and consider other factors.” Tenery v. Tenery, 932 S.W.2d 29, 30
(Tex. 1996). “Section 154.130 requires a trial court ordering child support that varies from
the amount that would result if the guidelines were applied to make certain findings.” In
re S.B.S., 282 S.W.3d 711, 717 (Tex. App.—Amarillo 2009, pet. denied). As the Amarillo
Court of Appeals has observed:
Among the findings that the trial court must make are the net monthly
resources of the obligor and obligee, the percentage applied by the court to
the obligor’s net monthly resources that yields the child support obligation
set by the court, the amount of support that would result if the guidelines
were followed, and the specific reasons why the amount ordered by the
court varies from the amount called for by application of the guidelines.
Id. (citing TEX. FAM. CODE ANN. § 154.130(b)). “These findings are mandatory and the
failure to make them when required constitutes reversible error.” Id.
We agree with M.B. that the trial court erred by effectively ordering him to pay
retroactive child support in excess of the amount provided for in the guidelines without
entering the findings supporting deviation from the child support guidelines in the order
as required by Section 154.130 of the Texas Family Code. See TEX. FAM. CODE ANN. §
154.130. Accordingly, we sustain M.B.’s third issue.
26
IV. CONCLUSION
We reverse the trial court’s order in part and remand the case for further
proceedings consistent with this opinion.
NORA L. LONGORIA
Justice
Delivered and filed the
22nd day of May, 2014.
27