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Sanders v. Merritt

Court of Appeals of Texas, Third District, Austin

August 2, 2017

Dennis Sanders, Appellant
Krista Marie Merritt, Appellee


          Before Chief Justice Rose, Justices Pemberton and Goodwin.


          Melissa Goodwin, Justice.

         Dennis Sanders appeals the trial court's award under section 157.167(b) of the Texas Family Code. See Tex. Fam. Code § 157.167(b). Sanders brought an enforcement proceeding against Krista Merritt, the mother of his child.[1] The parties reached a settlement on the substantive issues and presented the issue of Sanders' attorney's fees and costs to the trial court for determination. The trial court declined to award attorney's fees and awarded $1, 500 in costs. Sanders argues on appeal that the trial court abused its discretion in refusing to award the full amount of attorney's fees that he sought. For the reasons that follow, we affirm the trial court's order.


         In 2009, the trial court rendered an Order in Suit to Modify Parent-Child Relationship, and in 2010, the trial court rendered an Agreed Modified Order as to Possession and Access. In September 2015, Sanders filed a Motion for Enforcement of Possession and Access, alleging that Merritt had violated the prior orders on multiple occasions by refusing to allow him access to the child during his periods of possession, and seeking attorney's fees and costs. In addition, to responding to Sanders' motion, Merritt filed a counter-motion for enforcement, a petition to modify the parent-child relationship, and a motion to modify child support. Sanders subsequently filed a counter-petition to modify the parent-child relationship in which he sought, among other things, a 50/50 possession schedule. After somewhat contentious and protracted pre-trial discovery, a final hearing was held in July 2016. During a recess of the hearing, the parties reached a settlement agreement as to all issues except Sanders' claim for attorney's fees and costs. The agreement included 11 "make-up" days of possession for Sanders, but no modified summer possession; modified child support, though not retroactive to the filing of Merritt's counter-motion; and the offsetting of the parties' claims for medical expenses.

         The issue of attorney's fees and costs was presented to the trial court for determination. Sanders' attorney testified concerning his qualifications, experience, and hourly rate, which he stated was reasonable and customary. He offered into evidence his fee bills and testified that Sanders had incurred $45, 313 in fees and $2, 306.51 in costs for the entire proceeding. Of that total, he testified that $8, 820 in fees and $1, 500 in costs were directly related to his motion for enforcement. On cross-examination, Merritt's attorney elicited testimony that Merritt had incurred her own attorney's fees, that Sanders did not obtain the modification of possession he had sought, and that the settlement did not include retroactive child support. Sanders also offered into evidence a copy of the deposition of Merritt, in which she admitted to one of the alleged violations of the court's order concerning possession. The trial court rendered an order finding that the parties had agreed to modification and ordering the agreed modification. The trial court further found that the parties had "reached an agreement pertaining to . . . alleged violations" regarding possession and ordered that Sanders was awarded 11 "additional days of possession to compensate for his missed periods of possession." Under a subsection entitled "Attorney's Fees, " the trial court ordered that Merritt pay $1, 500 in "costs."

         The trial court subsequently issued an Order on Findings of Fact and Conclusions of Law, in which it incorporated verbatim its prior findings. The order also contained additional findings, including:

3. Movant, Dennis Sanders, attended the contested hearing in person and with his attorney of record. At trial, Movant, with counsel, chose to settle all of the contested issues except for attorney's fees, rather than participate in a complete trial that would have addressed all of the contested issues, in addition to attorney's fees.
4. The written Order was drafted by Dennis Sanders' attorney of record and presented to Dennis Sanders for his review and signature, after Judge Bill Henry rendered his judgment in open Court, based on the parties' multiple agreements and based on the child's best interest.
5. Dennis Sanders voluntarily signed the Order.
6. Dennis Sanders did not present any credible evidence at the hearing to contravene the ultimate rulings of the Court pertaining to the parties' agreements on conservatorship, possession/access, child support, and enforcement, or based on the issue of reasonable and necessary attorney's fees as presented to the Court and commensurate with his causes of action as considered in the best interest of the child.

         The trial court also made the following conclusions of law:

1. The parties' agreements on conservatorship, possession/access, child support, and Movant's, Dennis Sanders, enforcement action, as ordered by the Court, are ...

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