Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 256th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-09-16380-Z
Justices Evans, Stoddart, and Boatright.
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
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.
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.
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.
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.
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.
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.
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 ...