in the Interest of A.E.R. and E.N.R., Children ( 2016 )

AFFIRM; and Opinion Filed August 9, 2016.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-15-00019-CV
IN THE INTEREST OF A.E.R. AND E.N.R., CHILDREN
On Appeal from the 429th Judicial District Court
Collin County, Texas
Trial Court Cause No. 429-51128-2012
MEMORANDUM OPINION
Before Justices Francis, Lang-Miers, and Myers
Opinion by Justice Lang-Miers
Father appeals the amended final decree of divorce in this suit affecting the parent–child
relationship. In three issues, he challenges the award of attorney’s fees and retroactive child
support to Mother and the division of the marital property. We resolve Father’s issues against
him and affirm the amended final decree of divorce.
Background
Mother and Father sued each other for divorce. Following a bench trial, the court granted
a divorce to the parties and appointed them joint managing conservators of the children with
Mother being the parent with the exclusive right to designate the children’s primary residence.
The court awarded Mother $130,000 in attorney’s fees, over $50,000 in retroactive child support,
and, according to Father, over 80% of the marital estate. The court made extensive findings of
fact and conclusions of law. Father challenges those findings with regard to attorney’s fees,
retroactive child support, and the division of the marital property.
Standard of Review
We review most family law issues, including the issues in this appeal, for an abuse of
discretion. See, e.g., Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (award of child
support); In re J.R. III, No. 05-14-00338-CV, 2015 WL 4639625, at *7 (Tex. App.—Dallas Aug.
5, 2015, no pet.) (award of attorney’s fees); Murff v. Murff, 615 S.W.2d 696, 698 (Tex. 1981)
(division of estate). A court abuses its discretion when it acts unreasonably, arbitrarily, or
without reference to guiding rules and principles. See In re M.P.B., 257 S.W.3d 804, 811 (Tex.
App.—Dallas 2008, no pet.). A trial court does not abuse its discretion if there is some evidence
of a substantive and probative character to support its decision. In re S.E.K., 294 S.W.3d 926,
930 (Tex. App.—Dallas 2009, pet. denied); In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—
Dallas 2007, no pet.).
In family law cases, legal and factual sufficiency challenges do not constitute
independent grounds for asserting error, but are relevant factors in determining whether the trial
court abused its discretion. In re Marriage of C.A.S., 405 S.W.3d 373, 382–83 (Tex. App.—
Dallas 2013, no pet.). To determine whether the trial court abused its discretion because the
evidence is legally or factually insufficient to support the trial court’s decision, we consider
whether the trial court (1) had sufficient evidence upon which to exercise its discretion and (2)
erred in its application of that discretion. Id.
A trial court’s findings are reviewable for legal and factual sufficiency of the evidence
under the same standards that are applied in reviewing evidence supporting a jury’s answer.
Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas 2005, pet. denied). In evaluating a
legal sufficiency challenge, we credit evidence that supports the finding if a reasonable factfinder
could and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Newberry v. Newberry, 351 S.W.3d 552, 555 (Tex.
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App.—El Paso 2011, no pet.). The test for legal sufficiency is “whether the evidence at trial
would enable reasonable and fair-minded people to reach the verdict under review.” City of
Keller, 168 S.W.3d at 827. In a factual sufficiency review, we examine all the evidence in the
record and will reverse only if the finding is so against the great weight of the evidence as to be
clearly wrong and unjust. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996) (per curiam);
Newberry, 351 S.W.3d at 555–56.
Attorney’s Fees
In his first issue, Father contends that the trial court abused its discretion by awarding
$130,000 in attorney’s fees to Mother because the evidence is legally insufficient to support the
award.
A trial court has broad discretion to award reasonable attorney’s fees in a SAPCR. TEX.
FAM. CODE ANN. § 106.002 (West 2014); In re J.R. III, 2015 WL 4639625, at *7. The
reasonableness of attorney’s fees is a question of fact that must be supported by evidence. In re
M.A.N.M., 231 S.W.3d at 567. Under a non-lodestar method of calculating attorney’s fees, an
attorney’s testimony about his experience, the total amount of fees, and the reasonableness of the
fees charged is sufficient to support an award. Garcia v. Gomez, 319 S.W.3d 638, 641 (Tex.
2010) (attorney’s brief testimony about experience, total amount of fees, and that total amount of
fees was reasonable and necessary is “some evidence” of reasonable attorney’s fee); see also In
re J.R. III, 2015 WL 4639625, at *7.
Father argues that Mother’s evidence of attorney’s fees is insufficient under both the
lodestar and non-lodestar methods of calculating attorney’s fees, and he specifically challenges
the evidence supporting the following finding:
h. attorney’s fees and costs of [Mother] in excess of $130,000.00 reasonably
and necessarily incurred by [Mother] for the protection, health, safety, and
welfare of the children and as a result of the protracted, excessive discovery non-
compliance, and cost-increasing litigation by [Father] in this case[.]
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Father contends that Mother’s attorney offered no evidence about his experience, no
evidence about how he arrived at the $130,000 amount, no evidence of the services performed or
why they were necessary, and no evidence of who performed those services. But Garcia does
not require evidence on all these specifics. 319 S.W.3d at 641.
In Garcia, the attorney testified that he practiced medical-malpractice litigation in
Hidalgo County since 1984 and that $12,200 was a reasonable and necessary attorney’s fee for
handling that type of case “up to the point of dismissal.” Id. The supreme court held that the
attorney’s testimony was sufficient to support the award. Id. In so holding, the court stated that
the attorney’s testimony was not conclusory and was “not like other expert witness testimony”
because it “consist[ed] of the attorney’s personal knowledge about the underlying work and its
particular value to the client.” Id. The court compared the attorney’s testimony “to that of a
property owner whose personal knowledge qualifies him to give an opinion about his own
property’s value.” Id. The court explained that the opposing party’s attorney also had “some
knowledge of the time and effort involved and if the matter is truly in dispute, may effectively
question the attorney regarding the reasonableness of his fee.” Id. The court said that although
the attorney “testified briefly about his experience in medical malpractice litigation,” the
opposing party “did not cross-examine the witness or present any additional evidence on the
issue of attorney’s fees” and did not “question the reasonableness of the amount of those fees.”
Id. The court held that the testimony, while lacking in “specifics,” was “some evidence of what
a reasonable attorney’s fee might be in this case.” Id.
Here, Mother’s attorney testified that he had been licensed for over 20 years, was in good
standing with the State Bar, and was familiar with the hourly rates for attorneys and paralegals
“in this locale for matters of this sort and of this complexity and in this area of law.” He stated
that in his opinion $250 an hour was a reasonable hourly rate for an attorney and $95 an hour
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was a reasonable rate for a paralegal. Although he did not testify about the total number of hours
worked on the case, he gave extensive testimony about the work performed on the case. He
stated that there had “been four or five trial settings, multiple agreed scheduling orders” and “20,
21, or 22 separate hearings or settings” and “dozens of motions and responses.” He testified that
much of the fees and expenses were incurred because Father failed to respond timely to
discovery requests and then when he did, he produced them in a way that “was an unmitigated
disaster.” Mother’s attorney testified that he agreed to allow Father to produce documents by
Drop Box instead of in person, and that when Father uploaded the documents to Drop Box, they
were unorganized and it took “an inordinate amount of time to download, review and then print
and review a document, and there were multiple files that would crash the system.” He said it
“required dozens and dozens of hours of time just to sort through” the documents and that Father
ignored letters that Mother would no longer accept supplementation by Drop Box. The attorney
testified that he hired contract paralegals on three separate occasions “to try and get the
documents in a manageable form.” Additionally, the attorney testified about emergency motions
concerning travel out of state to visit family; motions for contempt, to compel, and for sanctions;
and showing up for hearings “noticed through e-mails, but not set on the court’s calendar.”
Mother’s attorney noted that between Mother and Father, the attorney’s fees in this case
were $200,000. He said he had “never in my career had a divorce case that approached this level
of attorneys’ fees, and in my opinion that is driven primarily 75 to 80 percent by the conduct of
[Father] in not answering discovery, none of it answered timely, document dumps that are
unorganized . . . .” He testified that in his opinion, “far more than $130,000 is reasonable and
necessary.”
Father’s attorney did not object to Mother’s attorney’s testimony and reserved questions
of him for Father’s case-in-chief. But Father did not recall Mother’s attorney during his case-in-
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chief and did not cross-examine him on the reasonableness or necessity of Mother’s attorney’s
fees. Father’s evidence showed that his attorney also billed at $250 an hour, that the rate was
reasonable for attorneys in that area, and that he incurred over $107,000 in attorney’s fees that
“were both reasonable and necessary.”
Mother’s attorney did not testify specifically that he had practiced law for the past 20
years. But he testified that he had been licensed for 20 years, was in good standing with the Bar,
and was familiar with rates charged for these types of cases in that area. He also referred to the
total attorney’s fees for both parties and stated in his career he had never seen a divorce case that
required this amount of fees to resolve. We think a reasonable inference from this testimony is
that Mother’s attorney had been practicing law for 20 years and had experience in divorce cases.
See In re J.R. III, 2015 WL 4639625, at *7; see also In re M.A.N.M., 231 S.W.3d at 567. We
also may reasonably infer that the trial court was familiar with the rates and time required in a
matter like this. See In re J.R. III, 2015 WL 4639625, at *7; see also In re M.A.N.M., 231
S.W.3d at 567. Mother’s attorney’s testimony also supports the trial court’s finding that
Mother’s attorney’s fees were the “result of the protracted excessive discovery non-compliance,
and cost-increasing litigation by” Father.
Having reviewed the docket sheet in this case, the clerk’s record, and the evidence, we
conclude that the evidence is legally sufficient to support the trial court’s finding. Accordingly,
the court did not abuse its discretion by awarding $130,000 in attorney’s fees to Mother.
We resolve issue one against Father.
Retroactive Child Support
In issue two, Father contends, for several reasons, that the trial court abused its discretion
by awarding retroactive child support to Mother. We begin with Father’s argument that Mother
did not have pleadings to support the award and the issue was not tried by consent. Mother
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contends that Father did not preserve these issues for our review because he did not make these
complaints in the trial court. We agree with Mother.
Even if Mother did not have pleadings to support her claim for retroactive child support,
and even if Father did not try the issue of retroactive child support by consent, he had multiple
opportunities to object in the trial court to the inclusion of an order to pay retroactive child
support, and he did not do so. Mother introduced a summary of relief she was requesting, which
included a request for retroactive child support, and Father stated he had “no objection to the
summary.” There was no additional evidence concerning retroactive child support. But in
closing arguments, Mother’s attorney asked that the child support be made retroactive to June
2012 because Father had been intentionally unemployed or underemployed during that time.
Father did not object. When the trial court sent a memorandum to the parties reflecting how the
court intended to rule on the various issues, the court included an award of retroactive child
support. Father did not object. Mother submitted a proposed final decree, and Father objected to
it with regard to retroactive child support, but only on the ground that it “exceeds the Court’s
Ruling and makes findings that were not included in the Court’s Ruling . . . .” 1
After the trial court signed the final decree of divorce, which included an order to pay
retroactive child support, Father did not object. The trial court amended the final decree of
divorce pursuant to Mother’s motion to modify. Father did not object to the inclusion of an order
to pay retroactive child support. Father filed two motions for new trial, but did not object to the
inclusion of an order to pay retroactive child support. Father also moved to modify the amended
final decree, but not with respect to the award of retroactive child support.
1
Mother’s proposed final decree is not in our record.
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Despite having multiple opportunities to object to the inclusion of retroactive child
support in the amended final decree of divorce, Father did not do so. Consequently, we conclude
that Father did not preserve these complaints for our review. See TEX. R. APP. P. 33.1.
Father also contends, however, that an order to pay retroactive child support was
improper because he was ordered to pay child support in the temporary orders. See TEX. FAM.
CODE ANN. § 154.009(a) (court may not order parent to pay retroactive child support if parent
previously ordered to pay child support). Father contends that the following provision in the
temporary orders constituted an order to pay child support: “[Father is] solely responsible for the
cost of all religious activities, including but not limited to: classes, events, Sunday school, temple
membership dues, religious education, educational activities, celebrations, and all other religious
oriented matters.” We disagree.
While child support may be in any manner the court deems appropriate, see TEX. FAM.
CODE ANN. § 154.001, the support is to provide necessities for the child as guided by the best
interests of the child, see Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 & n.3 (Tex. 1993). And
in the temporary orders, the trial court expressly deleted the references to child support and hand
wrote, “No child support in addition to medical support.” Consequently, we conclude that Father
was not ordered to pay child support in the temporary orders and the trial court was not barred by
section 154.009 from ordering retroactive child support. See TEX. FAM. CODE ANN. § 154.009.
Father also argues that the award of retroactive child support was an abuse of discretion
because there is no evidence to support the award. He contends that during the period for which
retroactive child support was awarded, he and Mother were each receiving monthly payments of
over $11,000, in addition to the lump sum they each received in the amount of $54,000, from his
company buyout. He contends that the “application of the [child support] guidelines was unjust
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and inappropriate” because Mother was receiving the same amount of money each month as he
was and “[Mother’s] monthly payments were the result of [his] toil.”
The court ordered two years’ retroactive child support in the amount of $2,137.50 per
month based on Father’s monthly net resources of $8,550. See TEX. FAM. CODE ANN. §§
154.061 (chart), 154.125(b) (child support of 25% of net resources for two children) (West Supp.
2015). The court found that Father had been intentionally unemployed, “claiming he could not
work in any employment due to a ‘non-compete.’” The evidence supports this finding. Father
testified about the non-compete and said he could “flip burgers,” but asked “would that be
worthwhile?” He said his time was “better spent studying in the industry and my counselor
advised me not to work.” He said during that time he continued “to work towards my future and
my children’s future.” When asked whether he could have worked toward his children’s future
by earning income at a job outside his chosen field and putting it in the children’s education
account, he said, “Not when I was already making close to 12,000 a month already.”
Additionally, the record showed that prior to the final decree of divorce, Mother had
primary custody of the two children and was receiving no financial assistance in the way of child
support. A parent has a “‘natural and moral obligation’ to provide for or support his offspring.”
Bailey v. Bailey, 987 S.W.2d 206, 209 (Tex. App.—Amarillo 1999, no pet.) (quoting Lane v.
Phillips, 6 S.W. 610, 611 (Tex. 1887)). Part of that duty is financial when the other spouse has
primary custody of the children during the pendency of divorce proceedings. See id.
Based on our review of the record, we cannot conclude that the trial court abused its
discretion by ordering Father to pay retroactive child support.
We resolve issue two against Father.
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Division of the Marital Property
In issue three, Father contends that the trial court abused its discretion in dividing the
marital property. He contends that the court’s division of property was “wildly disproportionate
in favor of [Mother].” He argues that the trial court awarded Mother 80% of the marital
property, and he argues that the evidence is legally and factually insufficient to support the
division.
Upon granting a divorce, a court must divide the marital property “in a manner that the
court deems just and right, having due regard for the rights of each party and any children of the
marriage.” TEX. FAM. CODE ANN. § 7.001 (West 2006). A court has wide discretion in dividing
the property; the division need not be equal, but it must be equitable. Murff, 615 S.W.2d at 698.
Among the factors a court may consider are the nature of the property; the disparity of incomes,
earning capacities, and abilities; the relative physical conditions of the parties; the parties’
relative financial conditions and obligations; the disparity of ages; the size of the separate estates,
if any; and the probable need for future support. Id. at 698–99. We presume the trial court acted
within its discretion in dividing the marital property. See id. at 699.
In the divorce decree, Mother and Father were each awarded a vehicle and any associated
debt; each ordered to manage their separate accounts related to the children’s education; each
awarded the tangible property in their respective possession; each awarded the life insurance
policies insuring their respective lives; each awarded 50% of the remaining payments from
Father’s company buyout; each awarded 50% of reward points, club points, airline miles and
travel awards; and each awarded 100% ownership of all real property or financial accounts the
other failed to disclose.
Additionally, the decree awarded Father four financial accounts with values totaling
about $68,500. The decree awarded Mother two financial accounts with a total value of around
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$10,000, and two retirement accounts valued at around $195,000. The decree also awarded as
separate property to Father a piano and all tangible personal property in his current possession,
which would include in excess of $120,000 in life insurance benefits he received upon his
father’s death.
With regard to liabilities, the decree ordered Father to pay all debts incurred by him in his
name only from the date of the marriage through the date of the final decree, and all debts
incurred in the name of Father and Mother from the date of the marriage through August 3, 2012.
The court ordered Mother to pay all debts incurred in her name only since August 3, 2012. It
also ordered Mother to pay $18,000 to Father for unpaid reimbursement claims.
The values that Mother and Father gave to their community assets during their respective
testimonies were inconsistent, and the final decree did not place a value on those assets awarded
to the parties. Father contends that the assets awarded to Mother constituted 80% of the marital
property, but the final decree does not contain values upon which we can make such a
determination. But even if Father is correct, we cannot conclude that the trial court abused its
discretion.
The trial court based its decision on many factors. In its findings of fact and conclusions
of law, the trial court stated that it took into consideration the following factors in dividing the
community property:
the children of the marriage; the education and employability of the parties,
including the disparity of earning power between the parties and the parties’
respective business opportunities, education, capacities, abilities, and future
employability; the amount of time during which [Mother] has been out of the
work force; duration of the marriage; benefits [Mother] may have derived from
the continuation of the marriage; disparity of earning power of the spouses and
their ability to support themselves; conservatorship, support, and needs of the
children; ages of the spouses; education and future employability of the spouses;
community indebtedness and liabilities; tax consequences of the division of
property; tax consequences of division of property; length of the marriage; nature
of the property; earning power, business opportunity, capabilities, and abilities of
the spouses; need for future support; conduct of the parties; fraud or constructive
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fraud on the community; nature of the property involved in the division;
attorney’s fees and costs, and reimbursement.
The evidence showed that Father was not ordered to pay child support because the parties
were given joint, 50/50 possession of the children, and the decree ordered Mother and Father to
support the children during their respective periods of possession. The record also showed that
while both Mother and Father had a college degree, Father had become very successful in his
business while Mother stayed at home to rear the children. The record showed that she had
difficulty obtaining a job during the divorce and took minimum-wage employment. Mother
testified that when the payments from Father’s company buyout come to an end in three years,
she would be unable to provide the minimum reasonable needs of the children without support.
The evidence showed that because of Father’s experience, he had much greater earning potential
than Mother. Father also had a larger separate property estate than Mother, given that he had
recently received in excess of $120,000 in life insurance benefits after his father’s death.
Additionally, the trial court observed the parties and their demeanor and could determine
for itself any issues regarding credibility or inconsistencies in the evidence. For example, Father
admitted that he did not include on his inventory a townhome that he purchased during the
pendency of the divorce, but placed in the name of his mother’s trust. And a witness, a friend of
Father’s, testified that Father told her his income would not “be physically apparent . . . until the
divorce was final.” The witness testified that she took this to mean that “it would not be visibly
apparent how much he was making until the divorce was final.”
In summary, considering the disparity of income and earning potential between Mother
and Father, the disparity of their separate estates, Mother’s having been out of the work force for
many years, the fact Father was not ordered to pay prospective child support, and all other
factors the trial court stated it factored into the division of the property, we cannot conclude that
the division was so unjust and inappropriate as to constitute an abuse of discretion.
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We resolve issue three against Father.
Conclusion
We affirm the amended final decree of divorce.
/Elizabeth Lang-Miers/
ELIZABETH LANG-MIERS
JUSTICE
150019F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.E.R. AND On Appeal from the 429th Judicial District
E.N.R., CHILDREN Court, Collin County, Texas
Trial Court Cause No. 429-51128-2012.
No. 05-15-00019-CV Opinion delivered by Justice Lang-Miers.
Justices Francis and Myers participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Melissa Ann (Rubinoff) Clark recover her costs of this
appeal from appellant Dani D. Rubinoff.
Judgment entered this 9th day of August, 2016.
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