in the Interest of D.Z, a Minor Child ( 2019 )

Majority and Dissenting Opinions of May 16, 2019 Withdrawn; Affirmed in
Part, Reversed in Part and Remanded; Motion to Strike Denied; Motion for En
Banc Reconsideration Denied as Moot; and Majority and Dissenting Opinions
filed July 30, 2019.
In the
Fourteenth Court of Appeals
NO. 14-17-00938-CV
IN THE INTEREST OF D.Z., A MINOR CHILD
On Appeal from the 245th District Court
Harris County, Texas
Trial Court Cause No. 2010-45577
MAJORITY OPINION
We 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.
Father 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.
I. BACKGROUND
Original divorce decree. Mother 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.
Modification suit. In 2015, the Office of the Attorney General filed a suit for
2
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 attorney’s fees.
Discovery motions. In 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 se,1 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.
Amicus attorney. In 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
1
In January 2017, Mother’s counsel Lacey Richmond withdrew from the case. After that,
Mother proceeded pro se.
3
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.
Motions for continuance. Discovery 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.
On 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.2 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
2
The record reflects that seven attorneys affiliated with Yuen’s firm appeared in the case.
Davina Wittick filed Father’s original petition to modify and answer to Mother’s counterpetition.
Yuen and Mullican together filed Father’s first amended petition. Yuen filed Father’s answer to
the Attorney General’s petition and Father’s second amended (live) petition to modify. Mullican
filed Father’s amended emergency motion for continuance and motion to dismiss (nonsuit)
Father’s petition. Andrew Gass filed a notice of co-counsel; Kelley Austin filed an entry of
appearance; and Eric Gruetzner filed a designation of lead counsel. Victoria Sanchez approved the
form of and signed the final order.
4
conference on October 26 and that Father file a designation of lead counsel by
October 25.
On 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.
Partial nonsuit and bench trial. On October 30, 2017, Father nonsuited his
petition to modify. That same day, the bench trial on Mother’s counterpetition took
place.3 Mullican appeared to represent Father.4 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.
Mother 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
3
The Office of the Attorney General did not appear at the hearing.
4
Father did not attend the hearing.
5
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.”
Mother 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.
After 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
6
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.”5 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 the parties.”
On 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 paycheck.
Father 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.
II. ANALYSIS
A. Motion to strike
Initially, we consider Mother’s motion to strike the new issues and arguments
5
See Tex. Fam. Code Ann. § 157.265.
7
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 challenged portions.
B. Attorney’s fees
In his 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.”
Father 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,”6 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
6
At trial, when Mother was testifying regarding the $4,292 and $7,306 amounts she had
incurred in attorney’s fees, Father’s counsel objected based on “improper characterization.” The
trial court overruled this objection. Father’s counsel then started to make but withdrew another
objection. Father has not challenged the admission of this evidence on appeal.
8
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).
Father 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).
In 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
9
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. 1997).
Mother 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
10
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.
Mother 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),7
21b,8 166a(h),9 and 21510 and Civil Practice and Remedies Code chapters 9 and 10.11
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
7
This rule governs sanctions in connection with a frivolous motion to recuse and disqualify
a judge, which is not at issue here. See Tex. R. Civ. P. 18a(h).
8
This rule governs sanctions for failure to serve or deliver a copy of a pleading or motion,
which is not at issue here. See Tex. R. Civ. P. 21b.
9
This rule governs sanctions for affidavits made in bad faith in the context of
summary-judgment proceedings, which is not at issue here. See Tex. R. Civ. P. 166a(h).
10
This rule governs sanctions in the context of discovery abuse. See Tex. R. Civ. P. 215.1–
.6.
11
Chapters 9 and 10 govern frivolous pleadings, claims, and motions, as well as sanctions
for them. See Tex. Civ. Prac. & Rem. Code Ann. §§ 9.001–10.006.
11
reasonably could have found that Father’s lawsuit was filed for the purpose of
harassment.
In 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
based on Father’s failures to comply with discovery rules and because his
modification claim was frivolous and not based on any evidence.12 Father’s counsel
cross-examined Mother about her attorney’s fees, Father’s discovery abuse, and
Father’s claim of child abuse.
At the hearing, the trial court stated that it found “good cause” to award partial
12
Father suggests that Mother’s “oral request” at trial for attorney’s fees came too late
because it “related to a case already dismissed and not before the court at trial.” However, in her
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. We conclude that
Mother requested “frivolous lawsuit” sanctions against Father prior to the nonsuit. See
CTL/Thompson Tex., LLC v. Starwood Homeowner’s Ass’n, Inc., 390 S.W.3d 299, 300 (Tex. 2013)
(per curiam).
12
attorney’s fees to Mother in the amount of $10,000 at five-percent interest.13 In its
final order, in a separate section entitled, “Attorney’s Fees,” the trial court awarded
Mother $10,000 of her previous counsel’s attorney’s fees at five-percent interest
against Father because “good cause exists to award [Mother] attorney’s fees.”
Although the order does not specifically cite any basis for its attorney’s-fee award,
its “good cause” language tracks the language of rule 13 in part. Therefore, we
review whether the award meets the requirements of a rule 13 sanction. See Aldine
Indep. Sch. Dist. v. Baty, 946 S.W.2d 851, 852 (Tex. App.—Houston [14th Dist.]
1997, no writ).
Texas Rule of Civil Procedure 13 provides, in pertinent part:
The signatures of attorneys or parties constitute a certificate by them
that they have read the pleading, motion, or other paper; that to the best
of their knowledge, information, and belief formed after reasonable
inquiry the instrument is not groundless and brought in bad faith or
groundless and brought for the purpose of harassment. . . . If a pleading,
motion or other paper is signed in violation of this rule, the court, upon
motion or upon its own initiative, after notice and hearing, shall impose
an appropriate sanction available under Rule 215, upon the person who
signed it, a represented party, or both.
Tex. R. Civ. P. 13. Courts shall presume that pleadings, motions, and other papers
are filed in good faith. Id. “No sanctions under this rule may be imposed except for
good cause, the particulars of which must be stated in the sanction order.” Id.
13
At the hearing, the trial court stated that it found “good cause to award attorneys’ fees
and amicus fees in this case.” The trial court at the hearing specified that the amicus fees were in
the nature of child support with a six-percent interest rate under the Family Code, while the
attorney’s fees were not in the nature of child support with a five-percent interest rate “as
promulgated by the Texas Consumer Credit Commission.” There is a section of the final order
entitled, “Amicus Attorney’s Fees,” which describes the allocation of Lacy’s $26,108.10 in amicus
fees between Father and Mother and what Father owes both Lacy and Mother for his unpaid
75-percent portion of amicus fees as child support after accounting for the amount each parent
already had paid Lacy.
13
“Groundless,” for purposes of this rule, means no basis in law or fact and not
warranted by good faith argument for the extension, modification, or reversal of
existing law. Id. A lawsuit is groundless, as used in rule 13, if there is no arguable
basis for the cause of action. Attorney Gen. of Tex. v. Cartwright, 874 S.W.2d 210,
215 (Tex. App.—Houston [14th Dist.] 1994, writ denied). Bad faith involves more
than poor judgment or negligence; it involves conscious wrongdoing. Falk &
Mayfield L.L.P. v. Molzan, 974 S.W.2d 821, 828 (Tex. App.—Houston [14th Dist.]
1998, pet. denied). Harassment means that the pleading was intended to annoy,
alarm, and abuse another person. Parker v. Walton, 233 S.W.3d 535, 540 (Tex.
App.—Houston [14th Dist.] 2007, no pet.).
When imposing rule 13 sanctions, the trial court is required to make
particularized findings of “good cause” justifying the sanctions. Tex. R. Civ. P. 13.
The trial court did not reference rule 13 and made no such findings in this case;
however, Father voiced no objection to the trial court’s awarding attorney’s fees
without setting out the findings or the particulars of “good cause” justifying the
sanctions. If Father was unclear about the basis for the trial court’s award of
attorney’s fees, such as whether it was being assessed as a sanction or what was the
basis and underlying findings for any sanction, then he was required to object to the
form of the trial court’s order.14 By failing to so timely object, Father waived any
error in the form of the order. See Tex. R. App. P. 33.1(a); Alexander v. Alexander,
956 S.W.2d 712, 715 (Tex. App.—Houston [14th Dist.] 1997, pet. denied).
However, we consider Father’s argument that the trial court abused its
discretion in imposing sanctions because Mother did not meet her burden of proof.
Because that burden must be met with evidence, legal sufficiency of the evidence is
14
Both Mother and Father approved the form of the trial court’s final order.
14
relevant in determining whether the trial court abused its discretion by imposing
sanctions. Yuen v. Gerson, 342 S.W.3d 824, 827 (Tex. App.—Houston [14th Dist.]
2011, pet. denied). A trial court’s decision to impose sanctions will not be overruled
on appeal unless an abuse of discretion is shown. Falk, 974 S.W.2d at 824. The test
for abuse of discretion is “whether the court acted without reference to any guiding
rules and principles,” or “whether the act was arbitrary or unreasonable.” Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Father did not
request findings of fact and conclusions of law as to the trial court’s award of
attorney’s fees. Therefore, the trial court’s judgment implies all findings of fact
necessary to support the award. See Pharo v. Chambers Cty., 922 S.W.2d 945, 948
(Tex. 1996); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990) (per curiam). We
cannot hold that the trial court abused its discretion in awarding sanctions if some
evidence supports the trial court’s ruling. Nath v. Tex. Children’s Hosp., 446 S.W.3d
355, 361 (Tex. 2014). A trial court abuses its discretion when its decision is contrary
to the only permissible view of the evidence. Unifund CCR Partners v. Villa, 299
S.W.3d 92, 97 (Tex. 2009) (per curiam). “In assessing sanctions, the trial court is
entitled to consider the entire course of the litigation.” Broesche v. Jacobson, 218
S.W.3d 267, 277 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
Father contends at the hearing Mother “did not argue or offer any proof that
would categorize [sic] as sanctionable under” rule 13. We disagree, and we conclude
Mother presented legally-sufficient evidence both that Father’s modification
petitions were groundless and were either brought in bad faith or for the purpose of
harassment.
Mother testified that she paid her previous counsel a total amount of $23,167,
$7,306 of which was to “defen[d]” Father’s “frivolous” modification claim. In his
petition to modify, Father alleged that the parties’ agreed final divorce decree should
15
be modified and he should be appointed sole managing conservator because Mother
“has moved numerous times” to the detriment of D.Z.’s “living environment” and
“where he received his child care.” With regard to Father’s allegations of “unstable
environment,” Mother testified there had been no residence or school changes since
more than a year before Father filed his original modification petition, in September
2015. Instead, it was Father who had moved more recently. Mother further indicated
that Father admitted he knew D.Z. had a stable school environment:
[MOTHER]: In petitioner’s deposition,[15] he was asked whether
the child stay in the same school for two years—
[COUNSEL FOR FATHER]: Your Honor, I think that’s hearsay
that ought to be—
THE COURT: Overruled. It’s a statement of a party. Go ahead,
ma’am.
[MOTHER]: He was asked whether the child stay at the same
school for two years shows him stability. He testified that, yes, I was
happy to that. So he’s frivolous, that the child was living in an unstable
environment is frivolous.
Even if Father initially may have had a factual basis to bring a modification suit
against Mother for providing D.Z. with an unstable living environment, as the suit
continued, and Father had knowledge that Mother continued to keep the same
residence and school for D.Z., there was no longer a factual basis for Father’s
“unstable environment” allegations. But Father continued to request modification
based on D.Z.’s “being constantly uprooted” and lack of “consistency” as late as his
first and second amended petitions filed on October 11 and 21, 2017, even though
at that point D.Z. had been at the same residence and school for over three years.
In his original and amended petitions, Father further alleged Mother
“admitted” to him that Mother’s current husband “has emotional abusive behavior
15
Father was deposed in August 2016.
16
and treatment toward the [child]” and that Father “has reason to believe [Mother]’s
husband[’s] abusive behavior will resume against [D.Z.].” In his original petition,
Father also requested that the child and Mother’s husband “be subjected to
psychological evaluations” based on this abuse. Father filed a motion for
psychological evaluation, which the trial court denied. Mother testified that Father
never found any direct or circumstantial evidence of child abuse after two years of
discovery. Mother also testified, at no time either before or after Father filed his
modification suit, that she ever had any discussion with Father about, much less
admitted the existence of, child abuse. Rather, “[t]he Petitioner write the child abuse
in his petition. That’s all.” Therefore, at the time Father filed each modification
pleading, Father’s position was not factually well grounded, based on a reasonable
pre-filing inquiry.
As discussed above, Mother requested her attorney’s fees as sanctions against
Father. Applying the familiar standards, we conclude Mother presented
legally-sufficient evidence that Father filed modification pleadings that were
groundless and either brought in bad faith or for the purpose of harassing Mother.
See Tex. R. Civ. P. 13; City of Keller v. Wilson, 168 S.W.3d 802, 810, 820, 827 (Tex.
2005).16
However, Mother’s previous attorney did not testify about her attorney’s fees
16
The dissenting opinion contends that Mother did not expressly plead and the trial court
did not expressly mention rule 13. But considering all of the circumstances involved in this case
and the entire record, as explained throughout part II.B., this is not a situation in which this court,
post-judgment, seeks to transform a “garden variety attorneys’ fee award into a sanctions award.”
There is neither a credible argument that attorney’s-fee sanctions based on Father’s frivolous
pleading conduct were not on the table and available for the trial court to award, nor does Father
argue that he lacked notice or a hearing. Instead, before and during the hearing, Mother alleged
that Father filed a frivolous lawsuit and requested that the trial court assess attorney’s fees against
him; at the hearing, Mother provided evidence that Father filed modification pleadings that were
groundless and either brought in bad faith or for harassment purposes; and both at the hearing and
in the final order, the trial court awarded Mother attorney’s fees against Father for “good cause.”
17
at the hearing, and the trial court did not admit Mother’s attorney’s affidavit or
billing records. Mother instead presented her own testimony about the total amount
of attorney’s fees she paid with a general description of her previous attorney’s
services. Mother’s evidence “lacks the substance required to uphold a fee award”
and thus is legally insufficient. See Nath, 2019 WL 2553538, at *2; Rohrmoos
Venture, 2019 WL 1873428, at *25.
Therefore, we sustain Father’s first issue and reverse the judgment’s $10,000
attorney’s-fee award. But in light of Nath’s recent abrogation of our long-standing
attorney’s-fee sanction precedent while this appeal was pending on rehearing, we
remand the case to the trial court in the interest of justice for further proceedings
limited to Mother’s attorney’s-fee sanction claim. See Tex. R. App. P. 43.3(b).
C. Amicus attorney’s fees
In his second issue, Father contends that the trial court erred in characterizing
Lacy’s amicus attorney’s fees as additional child support subject to income
withholding.17 However, the record does not show that Father lodged any objection
in the trial court regarding its characterization of amicus attorney’s fees as additional
child support able to be withheld from his income. Therefore, Father failed to
preserve this issue. See Tex. R. App. P. 33.1(a); In re B.J.W., No. 05-17-00253-CV,
2018 WL 3322882, at *3 (Tex. App.—Dallas July 6, 2018, no pet.) (mem. op.)
(appellant did not preserve argument regarding characterization of amicus attorney’s
fees as child support and necessaries for child in trial court (citing In re Pyrtle, 433
17
This court recently held that the trial court has discretion to characterize amicus
attorney’s fees awarded under Family Code section 107.023 as necessaries, but not as additional
child support able to be enforced through income withholding. In re R.H.W. III, 542 S.W.3d 724,
742–44 (Tex. App.—Houston [14th Dist.] 2018, no pet.); see Tex. Fam. Code Ann. § 107.023
(court may award reasonable fees and expenses to appointed amicus attorney as “necessaries for
the benefit of the child”).
18
S.W.3d 152, 166 (Tex. App.—Dallas 2014, pet. denied), and In re A.B.P., 291
S.W.3d 91, 99–100 (Tex. App.—Dallas 2009, no pet.)); Thornton v. Cash, No. 14-
11-01092-CV, 2013 WL 1683650, at *15 (Tex. App.—Houston [14th Dist.] Apr.
18, 2013, no pet.) (mem. op.) (“Because they made no complaint in the trial court
that it was an abuse of discretion to assess the amicus attorney’s fees against them
as necessaries for the benefit of the child, we conclude they failed to preserve this
argument for appellate review.” (citing In re A.B.P., 291 S.W.3d at 99–100)).18
We overrule Father’s second issue.
III. CONCLUSION
We deny Mother’s motion to strike. We reverse the portion of the trial court’s
judgment relating to the attorney’s-fee award, and we remand the case to the trial
court in the interest of justice for further proceedings limited to Mother’s
attorney’s-fee sanction claim.19 We otherwise affirm the trial court’s judgment as
challenged on appeal. See Tex. R. App. P. 43.2(a), (d).
/s/ Charles A. Spain
Justice
Panel consists of Justices Christopher, Bourliot, and Spain. (Christopher, J.,
dissenting.)
18
Father does not complain about the sufficiency of the evidence to support the amicus
attorney’s fees or the allocation of 75 percent of those fees to him.
19
Of necessity, our remand must be limited to further proceedings related to Mother’s
attorney’s-fee sanction claim pursuant to applicable case law. We do not otherwise provide any
limitation regarding the necessary and proper treatment of this issue by the parties or by the trial
court on remand.
19