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Laufer v. Gordon

Court of Appeals of Texas, Fourteenth District

November 21, 2019

JOANNA LAUFER, Appellant
v.
JUSTIN GORDON, Appellee

          On Appeal from the 280th District Court Harris County, Texas Trial Court Cause No. 2017-67140

          Panel consists of Justices Jewell, Bourliot, and Zimmerer.

          MEMORANDUM OPINION

          Kevin Jewell Justice

         Appellant Joanna Laufer appeals the trial court's order assessing attorney's fees and costs against her in connection with appellee's application for a protective order. The trial court denied Justin Gordon's application for a protective order but found nonetheless that Joanna committed family violence against Justin. The court ordered Joanna to pay $10, 131 in fees and costs, plus interest, to Justin's attorneys.

         Joanna asserts on appeal that the trial court erred in awarding attorney's fees against her under Texas Family Code section 81.005 because the court did not consider, as this section requires, whether she has the income or ability to pay the award, and the court did not find that she is so able. We conclude that Joanna has not shown that the trial court acted outside its discretion, and we affirm the trial court's order.

         Background

         Justin filed an application for a protective order against Joanna. The trial court found that Joanna committed family violence against Justin, but that she was unlikely to engage in family violence in the future. Thus, the court denied Justin's protective-order application. See Tex. Fam. Code §§ 81.001, 85.001; Ford v. Harbour, No. 14-07-00832-CV, 2009 WL 679672, at *3 (Tex. App.-Houston [14th Dist.] Mar. 17, 2009, no pet.) (mem. op.) ("A trial court shall render a protective order if, after a hearing, it finds that family violence has occurred and is likely to occur in the future."). Justin has not appealed and does not challenge the court's ruling denying the protective order.

         As part of the application for a protective order, Justin sought his attorney's fees and costs under the Family Code. See Tex. Fam. Code § 81.005(a). Section 81.005(a) provides that the court "may assess reasonable attorney's fees against the party found to have committed family violence . . . as compensation for the services of a private or prosecuting attorney or an attorney employed by the Department of Family and Protective Services." Id. During the protective-order hearing, Justin's attorneys presented evidence supporting his request for $10, 131 in attorney's fees and costs. Joanna did not dispute that Justin's requested fees and costs were "reasonable and customary."

         Joanna claimed, however, that she was unable to pay the amount requested. Joanna testified that she works as a contractor in the field of construction permits. Although her testimony was not entirely clear, the record shows that she was receiving as after-tax income in 2018 at least $3, 000 and potentially as much as $3, 500 per month, which includes $500 in monthly child support for her young daughter, who lives with her.[1] Joanna stated that she receives no other income. Joanna recalled that her 2017 income was "maybe" $38, 000, though she had not filed her 2017 tax return because her "CPA is doing that right now." As to current assets, Joanna testified that she has approximately $1, 500 to $2, 000 in savings as "emergency money." She did not state, and was not asked, whether she has any other assets.

         According to Joanna, her monthly expenses as of June 2018 include: (1) $1, 250 for rent; (2) $165 for utilities; (3) $55 for cell phone service; (4) $400 for childcare; (5) $700 for food, clothing, and medications; (6) $100 for gas; (7) $250 for her car payment; (8) $125 for automobile insurance; and (8) $100 for health insurance.

         Joanna is represented by counsel, but she has not paid any legal fees. She did not state whether she owed any legal fees to her attorneys, whether someone else paid legal fees on her behalf, or if her attorneys were representing her pro bono. She is currently in a dating relationship with one of her attorneys.

         After hearing the evidence, the trial court awarded $10, 131 in attorney's fees and costs to Justin's attorneys. The trial court stated on the record that the award takes into consideration Joanna's ability to pay. In a signed order, the trial court: (1) found that Joanna committed family violence against Justin; (2) found that Joanna is not likely to engage in family violence in the future; (3) denied Justin's application for protective order; and (4) memorialized the court's award of attorney's fees and costs in Justin's favor for $10, 131.

         Joanna timely requested findings of fact and conclusions of law. Additionally, Joanna filed a motion for new trial on attorney's fees, challenging the sufficiency of the evidence to support the trial court's fee award and emphasizing that the trial court must consider Joanna's income and ability to pay before assessing fees. The trial court signed findings and conclusions on July 9, finding that Justin "has incurred reasonable and necessary legal fees of $8, 531.00 and costs of $1, 600.00. . . ." However, the court included no findings concerning ...


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