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In re A.N.Z.

Court of Appeals of Texas, Fifth District, Dallas

June 7, 2017


         On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-09-16380-Z

          Before Justices Evans, Stoddart, and Boatright.



         This appeal involves the award of attorney's fees under an agreement incorporated into the parties' divorce decree. Mother filed a motion to modify Father's child support. Father later filed a counter-motion seeking to eliminate his child-support obligation. After a hearing on the motions, the trial court terminated Father's child-support obligation, denied Mother's request for attorney's fees, and awarded Father attorney's fees. Mother appeals the award of attorney's fees to Father and the denial of her request for attorney's fees. Concluding the trial court erred in its award of attorney's fees, we reverse the award and remand the case for further proceedings on that issue.


         The divorce decree includes the following provision at issue in this appeal (Fee Provision):

Further, the Court finds that the parties agree not to seek modification of the child support amount contained herein (other than the step-down) for so long as child support is due and payable under the terms of this Agreed Final Decree of Divorce. While the parties acknowledge such agreement may not be enforceable as an order of the Court, the parties agree to and shall be contractually bound by this agreement. IT IS ORDERED that in the event either party files for modification of [FATHER'S] child support obligation, the filing party shall be responsible for payment of one hundred percent (100%) of the other party's attorney's fees and costs incurred in defending such suit, regardless of the outcome of the case.

         In January 2014, approximately three years after the divorce decree, Mother filed a petition to modify parent-child relationship seeking, among other things, to increase Father's child-support obligation under the decree. Father filed an answer and counterclaim seeking his attorney's fees under the Fee Provision. Mother answered the counterclaim and sought her own attorney's fees.

         In January 2015, Father filed a counter-motion seeking to modify the parent-child relationship to eliminate his child-support obligation. He also requested to be named as the person with the right to designate the child's primary residence and that Mother be ordered to pay child support.

         On May 7, 2015, the issue of modifying conservatorship of the child was tried to a jury. Enforcement proceedings and other matters were heard by the trial court during jury deliberations. No testimony or evidence on attorney's fees was offered before the jury or on the record at the hearing. However, a few days after the hearing, both parties filed briefs regarding the Fee Provision and summaries of their respective attorney's fees, attaching redacted billing statements from their attorneys. After Mother filed a written objection to his business record affidavit, Father filed an amended brief and summary of his attorney's fees that subtracted fees for the enforcement proceedings.

         On September 1, 2015, the trial court signed an order in the suit to modify parent-child relationship. The trial court granted Mother's motion in part and addressed other matters not at issue in this appeal. The trial court ordered that Mother and Father remain joint managing conservators for the child, and that "no child support is payable at this time by either conservator but that each conservator shall be responsible for supporting the child while she is in that conservator's possession." The trial court awarded Father his attorney's fees and denied all other relief requested, including Mother's request for fees.

         Mother requested findings of fact and conclusions of law on the issue of the attorney's fees awarded to Father. She also filed a motion to reform the judgment regarding the award of attorney's fees. The trial court signed findings of fact and conclusions of law and denied Mother's motion to reform the judgment.

         Standard of Review

         In general, we review an award of attorney's fees authorized by contract or statute under an abuse of discretion standard. Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998). We review questions of law, such as the interpretation of an unambiguous contract, de novo. See In re B.N.L.-B., 375 S.W.3d 557, 564 (Tex. App.-Dallas 2012, no pet.). Fact findings, such as the amount and reasonableness of attorney's fees, are reviewed under a sufficiency of the evidence standard of review. See Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009) (reasonableness of attorney's fees is ordinarily left to factfinder); Bocquet, 972 S.W.2d at 21 (reasonableness and necessity normally fact questions for factfinder); Sharifi v. Steen Auto., LLC, 370 S.W.3d 126, 152 (Tex. App.-Dallas 2012, no pet.) (amount of attorney's fees reviewed for legal and factual sufficiency). Findings of fact in a non-jury case are reviewed under the same sufficiency ...

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