Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 199th Judicial District Court Collin County,
Texas, Trial Court Cause No. 199-55049-2016
Justices Lang-Miers, Myers, and Boatright.
Tincher (Mother) appeals an order awarding attorney's
fees to the appellee, Richard Council (Father), in a
proceeding to enforce and modify a final order previously
rendered in a suit affecting the parent-child relationship.
We modify the district court's fee order to delete the
reference to child support, and we affirm the order as
child in this case, C.A.C., was born in 2013. The district
court in January 2014 signed an Order in Suit Affecting the
Parent-Child Relationship (the SAPCR Order). This order
appointed Mother and Father as joint managing conservators of
C.A.C. and prescribed terms governing possession and access,
child support, and medical support, among other topics. In
2016, Father filed (i) a motion for enforcement of possession
or access, and (ii) a petition to modify parent-child
relationship. Mother also filed a petition for modification.
Following a hearing on the foregoing motions on March 13,
2017, the district court signed an order approximately one
month later-on April 11-that disposed of the matters raised
in the motions.
days later, Father's attorney, Shayla Smith, filed a
motion to set aside the April 11 order, urging that the
parties had agreed at the March 13 hearing that Smith would
draft the proposed order memorializing the court's
rulings. Smith claimed that, to this end, she sent a proposed
order to Mother's attorney with instructions that he make
any objections to the court in writing. According to Smith,
Mother's attorney instead filed a separate proposed order
without giving Smith a file-stamped copy and without
affording Smith sufficient time to review the order. Smith
claimed that the court signed Mother's proposed order on
April 11, and this order contained several errors.
district court held a hearing on the motion to set aside on
May 23, 2017. At the hearing, Smith made an oral motion on
Father's behalf requesting an award of attorney's
fees. The court vacated the April 11 order, granted
Father's fee request, and tasked the parties with
preparing a new proposed order that set forth the court's
rulings from the March 13 hearing. The parties submitted a
proposed order, which the court signed, also on May 23. On
the following day, the court signed an order that granted the
motion for attorney's fees and awarded Father $1, 000.
The fee order recites that it "is . . . part of a suit
affecting the parent-child relationship and should constitute
and be interpreted as a form of child support." This
raises two issues related to the May 24 fee order, to which
Father has filed no brief in response.
first contends that the evidence is insufficient to support
an award of attorney's fees. Insufficiency of the
evidence is not an independent ground for asserting error in
family law cases, but it is a relevant factor in assessing
whether the trial court abused its discretion in awarding
attorney's fees. In re E.B., No. 05-14-00295-CV,
2015 WL 5692570, at *1 (Tex. App.-Dallas Sept. 29, 2015, no
pet.) (mem. op.). We must engage in a two-pronged approach to
determine whether the district court (i) had sufficient
information on which to exercise its discretion; and (ii)
erred in its application of that discretion. Id.
complains that Father did not submit any documentation or
time records to support the attorney's fee award.
Documentary evidence is not required under the traditional
method of awarding attorney's fees. Metroplex Mailing
Servs., LLC v. RR Donnelley & Sons Co., 410 S.W.3d
889, 900 (Tex. App.-Dallas 2013, no pet.). In contrast, the
lodestar method-pursuant to which the court multiplies the
reasonable hours billed by the reasonable hourly rate for
such work, with adjustments as necessary-requires proof
documenting the performance of specific tasks, the time
required for those tasks, the person who performed the work,
and his or her specific rate. El Apple I, Ltd. v.
Olivas, 370 S.W.3d 757, 760, 765 (Tex. 2012). While a
lodestar fee can be established through attorney testimony,
"'in all but the simplest cases, the attorney would
probably have to refer to some type of record or
documentation to provide this information.'"
City of Laredo v. Montano, 414 S.W.3d 731, 736 (Tex.
2013) (per curiam) (quoting El Apple, 370 S.W.3d at
763). The lodestar method is required in certain cases,
see El Apple, 370 S.W.3d at 760 (noting that Texas
courts have used lodestar in awarding fees under section
21.259(a) of the Texas Commission on Human Rights Act), and a
party may also choose this method of proof, see Long v.
Griffin, 442 S.W.3d 253, 253 (Tex. 2014) (per curiam)
(referring to party "choosing" the lodestar
this case involved the parent-child relationship under the
Family Code, Father was entitled to seek reasonable
attorney's fees and expenses. Tex. Fam. Code Ann. §
106.002(a) (West 2014). Texas courts have allowed parties to
prove their attorney's fees under section 106.002 using
the traditional method. In re E.B., 2015 WL 5692570,
at *2. In E.B., we affirmed the trial court's
fee award under the traditional method, noting that the
appellee's counsel had provided evidence in the form of
testimony regarding several of the factors applicable under
this method. Id. at *2-3. The factors are: (i) the
time, labor and skill required to properly perform the legal
service; (ii) the novelty and difficulty of the questions
involved; (iii) the customary fees charged in the local legal
community for similar legal services; (iv) the amount
involved and the results obtained; (v) the nature and length
of the professional relationship with the client; and (vi)
the experience, reputation and ability of the lawyer
performing the services. Id. at *2. The ...