Appeal from the 246th District Court Harris County, Texas
Trial Court Case No. 2010-34811
consists of Justices Keyes, Goodman, and Landau.
Stephanie Zoanni and Lemuel David Hogan agreed to a
modification of the custody arrangements for their child, the
trial court signed a judgment that embodied those terms and
awarded Hogan $93, 303.11 in attorney's fees and court
costs. In this appeal, Zoanni challenges the
attorney's-fee award, contending that Hogan failed to
segregate fees incurred in a separate defamation action
against Zoanni from those incurred in the custody
modification proceeding. We affirm.
2014, Zoanni and Hogan filed cross-petitions to modify the
terms of child custody set forth in their 2011 divorce
decree. In July 2015, Hogan amended his petition to include
various tort claims arising from defamatory statements that
Zoanni had made about him. These claims were severed and
tried under a separate case number, and most recently were
the subject of this court's opinion and judgment in
Zoanni v. Hogan, 555 S.W.3d 321 (Tex. App.-Houston
[1st Dist] 2018, pet. filed).
custody modification judgment challenged in this appeal
reflects that the parties waived a jury trial, and "all
questions of fact and law" were submitted to the trial
court. The judgment recites that the court reporter made a
record of the testimony and other evidence presented to the
trial court, but the record on appeal does not include the
entry of the judgment, Zoanni filed a motion for new trial
challenging the propriety of the attorney's-fee award,
but the clerk's record contains no evidence either
supporting or contesting the amount of fees sought, nor does
it demonstrate that the motion was ever submitted or argued
to the trial court.
response to Zoanni's issues on appeal, Hogan contends,
among other things, that Zoanni filed an incomplete record on
appeal and, as a result, this court must presume that the
evidence supports the trial court's judgment, including
the fee award. The appellant bears the burden to bring
forward on appeal a sufficient record to show the error
committed by the trial court. Huston v. United Parcel
Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.-Houston [1st
Dist] 2014, pet. denied) (citing Nicholson v. Fifth Third
Bank, 226 S.W.3d 581, 583 (Tex. App.-Houston [1st Dist.]
2007, no pet.)); see also Christiansen v. Prezelski,
782 S.W.2d 842, 843 (Tex. 1990) (per curiam) ("The
burden is on the appellant to see that a sufficient record is
presented to show error requiring reversal"). "The
appellate record consists of the clerk's record and, if
necessary to the appeal, the reporter's record."
Tex.R.App.P. 34.1. The lack of the reporter's record,
which ostensibly contains testimony and evidence supporting
Hogan's request for attorney's fees, makes it
impossible for this court to review the challenged ruling.
See Huston, 434 S.W.3d at 636 (citing Brown
Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d
40, 44 n.1 (Tex. App.- Houston [1st Dist.] 2012, no pet.)).
absence of a reporter's record, "[w]e indulge every
presumption in favor of the trial court's findings."
Bryant v. United Shortline Inc. Assur. Servs., N.A.,
972 S.W.2d 26, 31 (Tex. 1998); see also Willms v. Am.
Tire Co., 190 S.W.3d 796, 803 (Tex. App.-Dallas 2006,
pet. denied) ("[W]hen an appellant fails to bring a
reporter's record, an appellate court must presume the
evidence presented was sufficient to support the trial
we do not have the reporter's record, we have no way of
ascertaining what evidence the court considered when it made
its determination on the amount of attorney's fees to
award or whether Hogan's request for fees was limited to
the fees he incurred in the custody modification proceeding.
See Huston, 434 S.W.3d at 636 (remarking that
appellant's failure to obtain reporter's record
containing challenged ruling makes it impossible for
appellate court to determine whether trial court abused its
discretion). We therefore presume, in the absence of a
reporter's record, that the evidence before the trial
court supports its finding that Hogan is entitled to recover
$93, 202.11 for reasonable and necessary attorney's fees
and costs incurred in the custody modification proceeding.
See Bryant, 972 S.W.2d at 31; Willms, 190
S.W.3d at 803; see also In re J.W., 97 S.W.3d 818,
825 (Tex. App.-Dallas 2003, pet. denied) (holding that
because there was no record of evidence adduced at trial
concerning child support, appellant presented nothing for
review on his claim for additional retroactive child
affirm the judgment ...