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In re C.A.C.

Court of Appeals of Texas, Fifth District, Dallas

May 9, 2018


          On Appeal from the 199th Judicial District Court Collin County, Texas, Trial Court Cause No. 199-55049-2016

          Before Justices Lang-Miers, Myers, and Boatright.



         Lorena 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 modified.


         The 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.

         Eight 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.

         The 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 appeal followed.


         Mother raises two issues related to the May 24 fee order, to which Father has filed no brief in response.

         Evidentiary Sufficiency

         Mother 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.

         Mother 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 method).

         Since 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 ...

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