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In re J.C.K.

Court of Appeals of Texas, Fourteenth District

May 1, 2018

IN THE INTEREST OF J.C.K., A CHILD

          On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 2009-41400

          Panel consists of Chief Justice Frost and Justices Christopher and Jamison.

          MEMORANDUM OPINION

          MARTHA HILL JAMISON, JUSTICE

         In this appeal from a final modification order in a suit affecting the parent-child relationship, appellant Edward Charles Knoblauch challenges only the portion of the order requiring him to pay $252, 996.55 of appellee Stacey Stelmach's attorney's fees and expenses. Central to Knoblauch's arguments is the fact that a packet of documents sent from Stelmach's attorney to Knoblauch's attorney was not admitted into evidence in its entirety. This packet consisted of a letter, an affidavit, and a proposed order. The trial court admitted the letter and affidavit but not the proposed order. Knoblauch contends that the packet in its entirety constituted an extortion attempt and demonstrates that Stelmach only sought the modification to obtain more money from him. On that basis, he contends the trial court erred in ordering him to pay Stelmach's attorney's fees.

         In five issues in his Amended Brief, Knoblauch specifically asserts that the trial court erred in (1) refusing to sign his formal bill of exception, (2) refusing to admit the packet in its entirety, and (3) ordering Knoblauch to pay the attorney's fees without considering the packet in its entirety; that (4) the packet did not constitute a settlement offer under Texas Rule of Evidence 408; and (5) even assuming it was a settlement offer, the packet still was admissible.[1] In three additional issues in his Supplemental Brief, filed with our permission after the trial court entered findings of fact and conclusions of law, Knoblauch additionally asserts that the trial court erred in finding that (6) he failed to timely comply with the requirements to obtain a formal bill of exception and (7) he failed to lay a proper predicate or offer the packet in its entirety as an exhibit and that (8) the evidence is legally and factually insufficient to support the trial court's finding that the amount of Stelmach's attorney's fees was reasonable.[2]Because Knoblauch failed to preserve error related to his first seven issues and the evidence is sufficient to support the trial court's finding on the reasonableness of Stelmach's attorney's fees, we affirm.

         Background

         The trial court entered a final decree of divorce ending the parties' relationship on April 30, 2010. In the decree, Knoblauch and Stelmach were named joint managing conservators of their one child together, J.C.K.[3] In December 2010, Stelmach's attorney sent a letter to Knoblauch's attorney along with a proposed modification order and an affidavit by Stelmach. In the affidavit, Stelmach alleged that Knoblauch had assaulted her as well as several other women and had drug and alcohol problems. At the time, Knoblauch was on deferred adjudication for a previous assault on Stelmach that had occurred prior to the divorce. In the letter, Stelmach's counsel stated that the affidavit would be attached to a petition to modify if it became necessary to file such a petition and requested that Knoblauch's counsel advise if an agreement could be entered based on the attached documents. According to Knoblauch, the proposed order attached to the letter would have effectively ended any right he had to see his son-as visitation would have been at Stelmach's sole discretion-and would have required him to pay Stelmach exorbitant additional sums in child support.

         Stelmach thereafter filed her Petition to Modify, but without attaching the affidavit or proposed order. In her petition, Stelmach sought to be named sole managing conservator, limitations on Knoblauch's rights of possession and access to the child, an increase in child support, and payment of Stelmach's attorney's fees and expenses. Knoblauch filed a counter-petition, also seeking certain modifications including a reduction in the amount of child support. A significant portion of the trial was spent addressing the alleged violence and drug and alcohol use. As will be discussed in more detail below, during trial, Knoblauch indicated a desire to have the packet of documents sent by Stelmach's attorney admitted into evidence in its entirety, but he ultimately offered only the attorney's letter and Stelmach's affidavit as separate exhibits, and they were admitted as such. After trial, Knoblauch attempted to enter into the record a formal bill of exception containing the document packet, but the trial court sustained Stelmach's objections and refused to accept or sign the bill.

         In its modification order, the trial court named Stelmach as sole managing conservator and ordered that Knoblauch's visitation be reduced, supervised, and contingent on Knoblauch's meeting certain requirements, such as attending drug and alcohol abuse therapy and avoiding domestic violence and conviction of a criminal offense. The court further ordered Knoblauch to pay Stelmach's attorney $252, 996.55 in attorney's fees and expenses for prosecution and defense of the present lawsuit.

         In its findings of fact and conclusions of law, the trial court stated that credible evidence was presented regarding Knoblauch's drug abuse and violence against women and that it was in J.C.K.'s best interest to modify the order. The court further stated that Knoblauch should pay a portion of Stelmach's attorney's fees and expenses and that her total fees and expenses "at the time of trial" was $414, 809.80. The court found that the hourly rate and total fees and expenses incurred by Stelmach were reasonable and necessary and usual and customary. Regarding the packet of documents sent by Stelmach's attorney, the court found that Knoblauch "did not lay the proper predicate or mark and offer [the packet] into evidence." Additionally, the court concluded that Knoblauch failed to "timely comply with all requirements to obtain a completed formal bill of exception."

         Preservation of Error

         As stated, Knoblauch's first seven issues all assert in some fashion that the trial court erred in not admitting into evidence or considering the packet of documents sent by Stelmach's attorney to Knoblauch's attorney. Issues 1, 6, and 7 pertain to the preservation of error on the admissibility of the packet; issues 2, 4, and 5 pertain to the admissibility of the packet; and issue 3 postulates the trial court erred in ordering Knoblauch to pay Stelmach's attorney's fees without considering the packet in its entirety. Because Knoblauch failed to preserve the issue of the admissibility of the packet, we overrule each of these first seven issues.

         To preserve error concerning the exclusion of evidence, the complaining party must actually offer the evidence and secure a ruling from the court. E.g., In re of Kahn, 533 S.W.3d 387, 394 (Tex. App.-Houston [14th Dist.] 2015, orig. proceeding); see also Comiskey v. FH Partners, LLC, 373 S.W.3d 620, 629-30 (Tex. App.-Houston [14th Dist.] 2012, pet. denied) ("To preserve error in the exclusion of evidence, a party must (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which the evidence is offered and give the trial court reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the court rules the evidence inadmissible, make a record of the evidence the party desires admitted."). Examination of the record reveals that at no point before or during trial did Knoblauch actually offer the packet in its entirety, or the proposed order by itself, into evidence or obtain a ruling from the court.

         Prior to seeking admission of any of the documents in the packet, Knoblauch gave the trial court a bench brief in which he argued that the packet and the documents were admissible.[4] The bench brief contained a discussion of relevant law and facts but did not actually request a ruling on admissibility. During discussion relating to the bench brief, Knoblauch's attorney argued that the packet was admissible, while Stelmach's attorney argued the packet constituted a ...


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