Appeal from the 245th District Court Harris County, Texas
Trial Court Cause No. 2010-45577
consists of Justices Christopher, Bourliot, and Spain.
CHARLES A. SPAIN JUSTICE.
issued our original majority and dissenting opinions in this
case on May 16, 2019. Appellant Tong Zhang (Father) filed a
motion for en banc reconsideration. Appellee Yi Ren (Mother)
filed a response. While Father's motion was pending, the
Supreme Court of Texas issued Nath v. Texas
Children's Hospital, No. 17-0110, 2019 WL 2553538,
at *1-*2 (Tex. June 21, 2019) (per curiam), which abrogated
this court's precedent, Allied Associates, Inc. v.
INA County Mutual Insurance Cos., 803 S.W.2d 799, 799
(Tex. App.-Houston [14th Dist.] 1991, no writ). In our
original majority opinion, we relied in part on Allied
Associates to overrule one of Father's issues. On
our own motion, we therefore withdraw our previous majority
and dissenting opinions, vacate our previous judgment, and
issue new majority and dissenting opinions, and a new
judgment. We deny Father's motion for en banc
reconsideration as moot.
appeals from a final order in a suit to modify a parent-child
relationship. His appeal involves: (1) whether the trial
court abused its discretion in awarding Mother attorney's
fees of $10, 000 and (2) whether the trial court erred in
characterizing amicus attorney's fees as additional child
support subject to income withholding. Mother filed a motion
to strike portions of Father's reply brief, which we took
with the case. We deny Mother's motion. However, we
conclude Mother's attorney's-fee sanction award was
not supported by legally-sufficient evidence. Therefore, we
reverse that portion of the trial court's judgment, and
remand the case to the trial court in the interest of justice
for further proceedings limited to Mother's
attorney's-fee sanction claim. We otherwise affirm the
judgment as challenged on appeal.
and Father, parents of D.Z., are divorced. The agreed final
divorce decree, signed November 1, 2010, ordered that Mother
and Father have joint-managing conservatorship of D.Z. and
that Mother has the exclusive right to determine D.Z.'s
primary residence within Harris County. The final decree also
ordered that Father pay Mother $300 a month in child support
and that Mother continue to provide D.Z. with health
insurance under a government medical assistance program.
2015, the Office of the Attorney General filed a suit for
modification of child-support order pursuant to Family Code
chapter 231. Mother and Father each answered. In September
2015, Father filed a petition to modify the parent-child
relationship, in which he requested sole-managing
conservatorship or alternatively joint-managing
conservatorship with the exclusive right to determine
D.Z.'s primary residence, and child support from Mother.
Father alleged that Mother's numerous moves and changes
in childcare were not in D.Z.'s best interest and that
D.Z.'s stepfather (Mother's husband) had emotionally
abused D.Z. Mother filed a counterpetition to modify, in
which she requested increased and retroactive child support.
Mother also requested that because D.Z. was no longer
eligible for government medical assistance, Father provide
D.Z. with health insurance or reimburse Mother for the cost
of coverage. Both Father and Mother requested reasonable
2016, Mother filed a motion to compel discovery and for
sanctions, including reasonable attorney's fees. Mother
later filed a second motion to compel discovery and for
sanctions, including reasonable attorney's fees. In 2017,
the trial court signed an order compelling Father to produce
his tax returns and business-related documents. Mother, pro
filed a third motion to compel discovery and for sanctions.
Mother requested that Father pay the reasonable amicus
attorney's fees related to this motion. Mother also filed
a motion for contempt, alleging that Father failed to comply
with the trial court's production order.
2016, the trial court appointed Amy Lacy as amicus attorney.
Lacy appeared and requested that Mother and Father pay her
reasonable and necessary amicus attorney's fees. In 2017,
Lacy filed a motion for payment of fees and additional
deposit to secure her fees. Mother filed a response in which
she requested that Father solely pay for Lacy's
appearance at a hearing at which Father and his counsel did
not appear. In June 2017, the trial court signed an order
that Mother and Father each pay $1, 220.20 in outstanding
fees to Lacy. The trial court also signed an order in July
2017 that Mother and Father each pay $10, 000 as a deposit to
Lacy for her additional fees.
in the case closed August 18, 2017. The final hearing was set
for September 18, 2017. Due to Hurricane Harvey, the hearing
was reset for October 16, 2017.
October 6, 2017, Father filed a first motion for continuance.
Xenos Yuen and David Mullican of Siegel, Yuen &
Honoré, P.L.L.C. were listed as Father's counsel
on the motion. Mullican submitted an affidavit concerning the
effects of Hurricane Harvey on the firm. Mother filed
objections, arguing that Father did not show good cause for a
continuance when he did not respond to discovery requests and
failed to comply with the trial court's order compelling
discovery. Mother requested "sanctions for filing [a]
groundless and frivolous motion for a purpose of delay."
The trial court held a hearing on October 18; and Mother,
Mullican, and Lacy appeared. There was a discussion regarding
how many and which attorneys were representing Father in the
case. Mullican did not know whether he would be
the attorney trying the case. The trial court denied
Father's motion and set trial for October 30. The trial
court ordered that Father's counsel Yuen appear at the
pretrial conference on October 26 and that Father file a
designation of lead counsel by October 25.
October 24, 2017, Father filed an amended emergency motion
for continuance, requesting at least four additional months
to substitute another attorney. Mullican submitted an
affidavit regarding his health issues. Mother again filed
objections, arguing that Father's motion was filed purely
for delay and that she would suffer prejudice. Mother alleged
that "this frivolous lawsuit and [Father]'s
violations of discovery rules caused [Mother] $40, 000
financial damages" and requested that he pay her
attorney's fees. The trial court held a hearing on
October 26. Mother, Mullican, and Lacy appeared. Yuen,
however, failed to appear. Mullican acknowledged that Father
did not file the court-ordered designation of lead attorney.
The trial court noted that Mullican's firm
"effectively is spitting in my face by not following
orders to designate a lead counsel." The trial court
denied Father's motion.
nonsuit and bench trial.
October 30, 2017, Father nonsuited his petition to modify.
That same day, the bench trial on Mother's
counterpetition took place. Mullican appeared to represent
Father. The trial court took judicial notice of
the file in the case. Mother provided testimony regarding her
requests for increased child support from Father based on the
guidelines and that Father cover D.Z.'s health insurance.
also requested that she be reimbursed for a portion of what
she paid her attorney. Mother stated that she paid her
attorney a total of $23, 167. Mother testified that her
attorney charged Mother $4, 292 to file discovery motions
"because [Father]'s attorney failed to comply with
the discovery rules and abused the discovery process
including but not limited to failed to appear at a hearing,
late at [sic] a hearing, and failed to respond to discovery
requests in a timely manner." Mother also testified that
her attorney "listed that there are $7, 306 fees to
defen[d] [Father]'s claims"; Mother stated that
"[Father]'s claims are frivolous and do not
constitute . . . any claim of modification of
conservatorship." Mother stated that Father failed to
produce "any direct or circumstantial evidence to prove
the existence of child abuse." Mother further stated
that she had never discussed any child abuse with Father.
Mother testified that all her residential moves were before
2014 and within Harris County, and that D.Z. had attended the
same school since August 2014. Mother testified that Father
admitted in his deposition that staying "at the same
school for two years shows [D.Z.] stability." Mother
pointed out that it was Father who moved
"recently." Mother further requested that the trial
court "avert [her] amicus attorneys' fees."
and Father stipulated to Lacy's qualifications. Lacy
offered her invoice without objection, and the trial court
admitted it. Lacy testified that she believed her fees were
reasonable and necessary to carry out her duties as amicus
attorney. Lacy requested that the trial court award her
attorney's fees of $26, 108.10, with outstanding fees of
$13, 068.10. Lacy requested that the fees be deemed child
support and asked for wage withholding.
consideration, the trial court found there had been a
material change in circumstances. The trial court granted
Mother increased child support of $768.77, retroactive to
October 2015. The trial court ordered Father to provide
health insurance for D.Z. as additional child support. The
trial court found "good cause to award attorneys'
fees and amicus fees in this case." The trial court
awarded Mother partial attorney's fees of $10, 000;
"the ten thousand-dollar attorney fee judgment" was
a "standard judgment" that would "accrue
interest at 5 percent per annum as it is not in the nature of
child support." The trial court "affirmatively
f[ound] that the amicus fees are in the nature of child
support" and the deficiency judgment would accrue
"interest at a rate [of] six percent per annum as set
forth in the Texas Family Code." The trial court allocated
Lacy's fees of $26, 108.10: 75 percent to Father ($19,
581.08) and 25 percent to Mother ($6, 527.03) "based on
the facts and circumstances in this case and the conduct of
November 22, 2017, the trial court signed its final order.
See infra note 13. Regarding amicus attorney's
fees, the trial court stated that it "approves said fees
as additional child support and finds that the fees are
reasonable and necessary for the benefit of the child."
The trial court awarded Lacy a judgment against Father in the
amount of $3, 667.70 for amicus attorney's fees. The
trial court further awarded Mother a judgment against Father
in the amount of $9, 693.17 for amicus attorney's fees.
Regarding attorney's fees, the trial court stated that it
"finds good cause exists to award [Mother]
attorney's fees" of $10, 000. That same day, the
trial court signed its income withholding order, which
ordered Father's employer to deduct child support
($768.77/month), past-due child support ($200/month), and
additional child support ($200/month) from Father's
did not request findings of fact and conclusions of law or
file a motion for new trial. Father timely appealed. After
Father filed his reply brief, Mother objected to and moved to
strike two argument sections. We carried Mother's motion
to strike with the case.
Motion to strike
we consider Mother's motion to strike the new issues and
arguments of Father's reply brief. Specifically, Mother
requests that we strike these two sections: (1) "[t]he
trial court had no statutory authority to award
attorney['s] fees to [Mother] regardless whether [Father]
raised objections to [Mother]'s pleading
deficiencies" and (2) "[t]he trial court could not
categorize the attorney['s] fee award as a sanction
without statutory authority and without [Mother] meeting her
burden of proof." Mother essentially argues that this
court should not consider these sections because Father did
not raise them in his opening brief and they prejudice her.
However, an appellant may file a reply brief addressing any
matter in the appellee's brief, such as waiver.
See Tex. R. App. P. 38.3. Moreover, Father raised
the lack of evidence to support the attorney's-fee award
in his opening brief. We therefore decline to strike the
first issue, Father argues that the trial court
"abuse[d] its discretion in awarding attorney's fees
of $10, 000 for [Mother]'s previous representation in a
suit to modify the parent-child relationship."
first complains that Mother's counterpetition only
included a general request for attorney's fees to be paid
to her attorney; "there were no pleadings referencing
[Family Code section 106.002] for the recovery of
attorney's fees." See Tex. Fam. Code Ann.
§ 106.002 (court may render judgment for reasonable
attorney's fees and expenses in suit affecting
parent-child relationship). Although Father contends that his
"counsel raised several objections to [Mother]'s
request for attorney's fees, " the record does
not reflect that Father objected to the award of
attorney's fees in the trial court based on Mother's
failure to plead any specific statutory basis for the award.
Therefore, Father has not preserved this complaint.
See Tex. R. App. P. 33.1(a); Tex. Ear Nose &
Throat Consultants, PLLC v. Jones, 470 S.W.3d 67, 86-87
(Tex. App.-Houston [14th Dist.] 2015, no pet.) (appellants
did not preserve issue of pleading deficiency regarding basis
for attorney's fees in trial court). In his reply brief,
Father argues that whether he "raised objections to the
deficiencies of [Mother]'s pleadings is immaterial
because the trial court did not have a statutory basis to
award attorney's fees." However, because Father did
not raise the argument that the trial court lacked a
statutory basis for its attorney's-fee award in the trial
court, he also has waived this argument. See Tex. R.
App. P. 33.1(a); Gipson-Jelks v. Gipson, 468 S.W.3d
600, 604 (Tex. App.-Houston [14th Dist.] 2015, no pet.)
(appellant did not preserve complaint regarding trial
court's lack of statutory or contractual basis for
attorney's-fee award in trial court).
also asserts (without explanation) that Mother "failed
to segregate attorney's fees between claims for which
attorney['s] fees are recoverable and claims for which
they are not." However, the record does not reflect that
Father ever raised any objection in the trial court based on
lack of segregation of Mother's attorney's fees.
Father likewise did not preserve this complaint. See
Tex. R. App. P. 33.1(a); Home Comfortable Supplies, Inc.
v. Cooper, 544 S.W.3d 899, 908-10 (Tex. App.-Houston
[14th Dist.] 2018, no pet.) (explaining that party must
preserve fee-segregation complaint in bench trial).
addition, Father argues Mother did not "offer any
evidence to support her claim for an attorney fee award for
her Counter-Petition to Modify the Parent Child
relationship" and "offered no evidence to prove . .
. that the fees sought were reasonable and necessary for the
prosecution of the suit." Father may raise this
insufficiency-of-the-evidence argument for the first time on
appeal. See Tex. R. Civ. P. 324(a), (b);
Tex.R.App.P. 33.1(d); In re Q.D.T., No.
14-09-00696-CV, 2010 WL 4366125, at *9 (Tex. App.-Houston
[14th Dist.] Nov. 4, 2010, no pet.). Father points out that
he objected to, and the trial court did not admit, the
affidavit from Mother's previous counsel concerning her
fees. He also argues Mother did not show that her previous
counsel's fees were reasonable and necessary pursuant to
the factors outlined in Arthur Andersen & Co. v.
Perry Equipment Corp., 945 S.W.2d 812, 818-19 (Tex.
responds that she was not required to prove the
reasonableness and necessity of her attorney's fees
because they were assessed as a sanction. While this was the
state of the law when our original majority opinion issued,
the Supreme Court of Texas recently explained that the
evidentiary standard of proof is the same for attorney's
fees awarded as a fee-shifting sanction. See Nath,
2019 WL 2553538, at *2-*3 ("Although this case deals
with attorney's fees awarded through a sanctions order,
the distinction is immaterial because all fee-shifting
situations require reasonableness."). In doing so, the
Nath Court abrogated our precedent, Allied
Associates, 803 S.W.2d at 799, which had held that proof
of reasonableness was not required when attorney's fees
were assessed as sanctions. The Nath Court explained
that "[b]efore a court may exercise its discretion to
shift attorney's fees as a sanction, there must be some
evidence of reasonableness because without such proof a trial
court cannot determine that the sanction is no more severe
than necessary to fairly compensate the prevailing
party." See 2019 WL 2553538, at *2 (internal
quotation marks omitted). Therefore, whether awarded as a
sanction or not, "[w]hen fee-shifting is authorized,
whether by statute or contract, the party seeking a fee award
must prove the reasonableness and necessity of the requested
attorney's fees." Rohrmoos Venture v. UTSW DVA
Healthcare, LLP, No. 16-0006, 2019 WL 1873428, at *8
(Tex. Apr. 26, 2019). Generally, while contemporaneous
billing records are not required, legally-sufficient evidence
to establish a reasonable and necessary fee needs to include
a description of the particular services performed, the
identity of each attorney who and approximately when that
attorney performed the services, the reasonable amount of
time required to perform the services, and the reasonable
hourly rate for each attorney performing the services.
See id. at *20, *22, *23. Further, "when a
party seeks attorney's fees as sanctions, the burden is
on that party to put forth some evidence of . . . how those
fees resulted from or were caused by the sanctionable
conduct." See Nath, 2019 WL 2553538, at *2.
argues Father's presumption that the trial court awarded
her attorney's fees based on section 106.002 was
incorrect. According to Mother, trial courts have discretion
to award sanctions based on Texas Rules of Civil Procedure
13, 18a(h), 21b,  166a(h),  and 215 and Civil Practice and
Remedies Code chapters 9 and 10.Mother also contends that
trial courts have inherent power to sanction. Mother further
argues that Family Code section 156.005 authorizes trial
courts to tax attorney's fees as costs against the
offending party in modification suits if the court finds that
the suit was "filed frivolously or is designed to harass
a party." See Tex. Fam. Code Ann. §
156.005. Mother contends that the trial court had more than a
scintilla of evidence to award her attorney's fees based
on Father's "numerous discovery violations" and
Father's failure to support any of the allegations in his
modification suit with sufficient evidence. Mother also
asserts the trial court reasonably could have found that
Father's lawsuit was filed for the purpose of harassment.
reply, Father asserts that "[t]he trial court did not
award attorney's fees as a sanction in this case."
We consider whether and conclude the record reflects that the
trial court awarded Mother attorney's fees as a sanction
rather than to prosecute her modification counterpetition.
Mother filed three motions to compel discovery and for
sanctions (two filed when she was represented and another
while she was pro se), and a motion for contempt (pro se).
The trial court twice ordered Father to produce discovery and
twice denied Mother fees as a sanction. In her objection to
Father's first motion for continuance, Mother requested
that the trial court award her "sanctions for filing
groundless and frivolous motion for a purpose of delay."
Further, in her objections and response to Father's
second motion for continuance, Mother alleged that
Father's frivolous lawsuit and discovery abuse caused her
financial damages and requested attorney's fees from him.
The trial court denied both Father's motions for
continuance. At the hearing, Mother again requested that she
receive reimbursement for the attorney's fees she paid to
her previous attorney ...