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In re M.K.M.L.

Court of Appeals of Texas, Fourteenth District

March 27, 2018

IN THE INTEREST OF M.K.M.L., A CHILD

          On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2011-33344

          Panel consists of Chief Justice Frost and Justices Busby and Wise.

          MEMORANDUM OPINION

          Ken Wise Justice

         This is an appeal from an award of amicus attorney fees incorporated into a modification order in a suit affecting the parent-child relationship. Appellant David Lehmann, Jr., the father of the minor child who is the subject of the suit, contends that the trial court erred by awarding the appointed amicus attorney's fees in the amount of $22, 910.00, and by ordering an unequal apportionment of fees. We affirm.

         Factual and Procedural Background

         David Lehmann, Jr. (David Jr.) and Mandy Marie Lehmann were divorced in July 2012. In January 2013, David Jr. filed this suit seeking to modify the divorce decree's terms pertaining to conservatorship, possession and access, and support of their child, M.K.M.L. David's father, David Lehmann, Sr. (David Sr.), intervened in the lawsuit. Mandy filed an answer and counterpetition for modification.

         In March 2013, the trial court appointed George Clevenger as an amicus attorney to assist the court in protecting the child's best interests pursuant to Texas Family Code section 107.021. Clevenger filed a notice of appearance as amicus attorney and requested that the parties be ordered to pay his attorney's fees. Later, Clevenger filed a motion requesting that the David Jr. and Mandy be required to deposit sufficient funds to secure payment of his fees and expenses incurred in representing M.K.M.L.'s interests, and he set the motion for a hearing. Clevenger did not specify the amount requested or include any documentation of his attorney's fees.

         On February 28, 2014, the trial court signed a judgment for amicus attorney's fees reflecting that on December 20, 2013, a hearing was held on Clevenger's request for amicus attorney's fees. The judgment recited that David Jr., David Sr., Mandy, and Clevenger appeared in person and announced ready. The trial court, "after reading and considering the pleadings, and reviewing the evidence and argument of Counsel, " awarded Clevenger amicus attorney's fees in the amount of $22, 910.00. The court further found that "the purpose of the amicus attorney's fees incurred was to establish or modify conservatorship, possession and access, and support of the minor child" and that the fees incurred were "both reasonable and necessary for these purposes." The trial court allocated payment of the amicus attorney's fees as follows: $10, 000.00 to David Jr., $1, 000.00 to Mandy, and $11, 910.00 to David Sr. The court also discharged Clevenger from any further duties as amicus attorney. Although the record is not clear, it appears that Clevenger also served for a brief period as guardian and attorney ad litem.

         In July 2016, David Jr. filed "Petitioner's Response to Motion to Award Ad Litem Fees." In that filing, David Jr. asserts that he opposes a motion for guardian ad litem fees that Clevenger had filed and set for hearing on September 28, 2016. Our record does not contain this motion by Clevenger or any ruling by the trial court on the motion. In his filing, however, David Jr. challenged Clevenger's apparent request for an award of $22, 910.00 in attorney's fees for his services, the same amount that the trial court ultimately awarded to Clevenger as amicus attorney's fees in its February 28, 2014 order.

         On October 12, 2016, a hearing was held on a different motion filed by David Sr. to reconsider Clevenger's amicus attorney's fee award. At the hearing, David Sr. complained about the allocation of the fees and the lack of evidence supporting the amount of the fees. David Sr.'s attorney also argued that there had been no notice of any hearing on December 20, 2013, and no invoices were ever presented for review. David Sr.'s attorney also questioned whether a hearing was even held on that date. David Jr. similarly argued that Clevenger was not entitled to any fees because he had not filed a proper fee application or voucher, and no one had been able to review his invoices.[1] Mandy took the position that it would be unfair to reallocate the fees two years after the issue had been litigated and Clevenger had been discharged. For his part, Clevenger stated that at the time of the hearing, he presented to the court an itemized statement of the services he performed, and he testified to his hourly rate and the payments that already had been made by David Jr. and David Sr.

         At this time, the trial judge who had signed the 2014 judgment awarding Clevenger's attorney's fees was no longer on the bench. The current judge reviewed the court records and stated that it appeared to her that Clevenger was correct that there was a hearing on December 20, 2013. The judge also noted that she had no transcript from that hearing, and had to accept that what was reflected in the judgment was what had occurred. Although the judge was unwilling to reconsider the amount of the fees, she expressed a willingness entertain the issue of reallocation, but no party presented any evidence on that issue. Ultimately, the judge decided not to revise the judgment for amicus attorney's fees.

         On November 30, 2016, the trial court signed a modification order incorporating by reference the judgment for Clevenger's amicus attorney's fees, making that judgment final and appealable. David Jr. filed a notice of appeal limited to the judgment for amicus attorney's fees, and he requested a partial reporter's record pursuant to Texas Rule of Appellate Procedure 34.6(c). He also filed a statement of issues to be presented on appeal as: (1) "The trial court erred in awarding the amicus attorney fees in the amount of $22, 910.00"; and (2) "The trial court erred in allocating the amicus attorney fees by ordering Petitioner to be [sic] pay $10, 000.00 of the total fee awarded while requiring respondent, Mandy Marie Culver Feltner to only pay $1, 000[.00] of the total fee awarded."

         Analysis

         In two issues, David Jr. contends that the trial court erred by (1) awarding Clevenger $22, 910.00 in amicus attorney's fees, and (2) ordering an unequal apportionment of the fees. In his first issue, David Jr. argues that the trial court abused its discretion in awarding the fees because the record contains insufficient evidence to support the award of fees. In his second issue, David Jr. argues that the trial court provided no explanation for its ...


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