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In re S.E.W.

Court of Appeals of Texas, First District

April 11, 2019

IN THE INTEREST OF S.E.W., A CHILD

          On Appeal from the County Court at Law Waller County, Texas Trial Court Case No. 16-07-23814

          Panel consists of Justices Lloyd, Kelly, and Hightower.

          MEMORANDUM OPINION

          RUSSELL LLOYD, JUSTICE

         Appellant Karen George-Baunchand (Baunchand) intervened in a child custody proceeding to recover her attorney's fees and costs. The trial court granted a default judgment in favor of Baunchand and awarded her $6, 000 in attorney's fees. In three issues on appeal, Baunchand argues that the trial court erred by not awarding her the full amount of attorney's fees that she requested, and that trial court violated her Fifth and Fourteenth Amendment rights by reducing the amount of attorney's fees. We affirm the trial court's judgment.

         Background

         In July 2016, Mother hired Baunchand to represent her in a child custody dispute. According to Baunchand, the child was visiting Father in Arizona for the summer and, despite Mother's and Father's agreement that the child would only stay in Arizona until mid-July, Father was refusing to return the child to Mother in Houston. Baunchand was employed by the International Center for Justice (ICFJ), a non-profit legal organization, when Mother retained her services. Among other things, Baunchand filed an original petition, an amended petition, and two applications for writs of habeas corpus during her representation.

         On March 7, 2017, Baunchand filed a motion to withdraw as Mother's counsel because Mother was not communicating with her or paying her legal fees. On April 18, 2017, Baunchand and ICFJ filed a first amended petition in intervention seeking to recover $18, 000 in attorney's fees and $80.00 in costs from Mother and Father. In support of the motion, Baunchand attached her affidavit and two billing statements that ICFJ had sent to Mother documenting the legal services that Baunchand performed between July 1, 2016 and December 4, 2016. In her affidavit, Baunchand averred that she regularly practiced immigration and family law in Texas and was Mother's attorney of record in the underlying Suit Affecting the Parent- Child Relationship (SAPCR). Baunchand stated in her affidavit that although her normal and customary fees in such cases is $500 per hour, she reduced her rate to $250 per hour based on Mother's financial status. She further averred that she had deducted time spent on phone calls and text messages, and was only seeking fees for 72 hours of work.

         On June 16, 2017, the trial court held a hearing on Mother's and Father's Agreed Order in this case and Baunchand's request for attorney's fees. The hearing was attended by Father's attorney, the child's amicus attorney, and Baunchand. Mother did not appear at the hearing.

         Baunchand testified at the hearing in support of her request for $18, 000 in attorney's fees. Specifically, Baunchand testified that Mother hired her in July 2016 and they executed a formal contract for services at that time. She handed the trial judge the original contract during the hearing. The contract, however, was not admitted into evidence during the hearing or attached to Baunchand's affidavit. Although Baunchand attached a copy of the purported agreement to her appellate brief, we cannot consider it for purposes of her appeal because the document is not included in the appellate record. See Samara v. Samara, 52 S.W.3d 455, 459 (Tex. App.-Houston [1st Dist.] 2001, pet. denied) (holding appellate courts cannot consider documents attached to briefs that do not appear in appellate record).

         Baunchand testified that although her normal and customary charge is $450 an hour, [1] she reduced her rate to $250 an hour because Mother claimed to be indigent. She testified that she spent approximately 94 to 112 hours on the case, and that she reduced her time to 72 hours because of Mother's financial status.[2] "These hours were reasonable and necessary and -- I charge less than the customary rate of 350, my rate was 250 an hour.[3] And I reduced everything that I could." She explained that although Mother made unreasonable demands on her time, she did not charge Mother for the time she spent responding to Mother's excessive text messages or late-night phone calls. She also did not charge Mother for copies or faxes.

         Baunchand testified that Mother stopped making payments in November 2016 and stopped communicating with Baunchand in November or December 2016. Baunchand, however, continued to participate in the case and attended approximately six hearings after December 2016 and a mediation because she was still Mother's attorney of record. Baunchand did not bill Mother for any of those hours.

         When the trial judge asked her about her relationship with ICFJ, Baunchand told the court that she was working for ICFJ when Mother hired her in July 2016. According to Baunchand, who was also on ICFJ's board of directors, the non-profit lost its 501(c)(3) tax status in August 2016 and she stopped working for them and resigned her directorship in November or December 2016. When the trial judge asked who paid her legal fees when she was employed by ICFJ, Baunchand told the court, "the client is paying the nonprofit. If the client doesn't pay the nonprofit, I do not get paid." Baunchand testified that she had not been paid by ICFJ for the services she provided in this case. Baunchand also testified that she did not execute a new contract with Mother after Baunchand left ICFJ because Baunchand believed that the original July 2016 agreement was sufficient.

         Baunchand also testified about some of the specific services she performed in this case. Specifically, Baunchand testified that after her first meeting with Mother on July 3, 2016, she reviewed the text messages and e-mails that Mother and Father had exchanged, along with other documents that Mother had sent to her, and she "prepared an emergency petition, which is a writ of habeas for return of the child." The first ex parte hearing on Mother's application for a writ of habeas corpus and request for temporary orders was recessed to allow Mother to amend her application. After the application was amended, the court reconvened the hearing and issued temporary orders directing Father to return the child. Baunchand stated that after she filed the writ she "also filed an original SAPCR [on July 12th] at the request of the visiting judge." Baunchand billed Mother for two hours for each hearing.

         At that point, Father's counsel questioned Baunchand on voir dire.

MR. SHORT: Is it your testimony under oath, ma'am, that a judge advised you what to do as a lawyer about filing SAPCRs and that sort of thing? Is that what ...

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