Court of Appeals of Texas, Third District, Austin
THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
NO. 08-2106, HONORABLE WILLIAM HENRY, JUDGE PRESIDING
Chief Justice Rose, Justices Pemberton and Goodwin.
Melissa Goodwin, Justice.
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. 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.
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.
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
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,
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.
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 ...