Opinion
05-22-00449-CV
06-30-2023
IN THE INTEREST OF L.W.G., A MINOR CHILD
On Appeal from the 256th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-19-03769-Z
Before Justices Nowell, Goldstein, and Breedlove
MEMORANDUM OPINION
ERIN A. NOWELL, JUSTICE
Father and Mother are the parents of a child, "L.W. Doe Roe." Doe is Father's last name, and Roe is Mother's. Mother appeals from the family court's February 10, 2022 Order Clarifying Name of Child. In three issues, Mother argues the February 2022 Order erroneously changed the child's name and the family court's award of attorney's fees is not supported by sufficient evidence. We affirm in part and reverse in part.
The names Doe and Roe are used to protect the child's identity.
A. Factual Background
In April 2019, the family court judge signed an order stating in part: "IT IS ORDERED that the child formerly known as [L.W. Doe] shall hereinafter be named [L.W. Doe Roe]" and, further "IT IS ORDERED that the vital statistics unit shall amend the birth record of the child formerly known as [L.W. Doe] and change the child's name as specified above." Mother and Father approved and consented to the order as to both form and substance.
In November 2020, Mother filed a petition to modify the parent-child relationship, and Father filed a counter-petition to modify. Among other things, Father requested the family court clarify the child's name. Father alleged the April 2019 Order was not sufficiently specific to be enforced by contempt. He requested "the Court construe and clarify the terms of its prior order to make specific that the name of the child and the amendment of the child's birth certificate reflect the following name: [L.W. Doe-Roe]." Alternatively, if the Court did not clarify the child's name, then Father requested the child's name be changed to L.W. Doe-Roe by adding a hyphen between Doe and Roe.
In October 2021, Mother and Father entered into a partial mediated settlement agreement. The agreement states the parties settled all disputed claims except the "issue of the name change as addressed in Exhibit A will be tried at the current trial date." Exhibit A states in part: "Father's requested relief to clarify the name change or in the alternative change the child's surname to [Doe-Roe] shall be reserved for final trial." A bench trial was held in November 2021.
L.W. was six years old at the time of trial. Until April 2019, when the child was almost four years old, the child's last name was Doe. Mother amended the child's birth certificate in 2020, and the amended birth certificate shows the child's first name is L., his middle names are W. and Doe, and his last name is Roe. Mother provided a copy of the amended birth certificate to Father in the summer of 2020. The child has attended school with the last name Roe.
Father testified he would not have agreed to amend the child's birth certificate to make Doe a middle name; he believed the April 2019 Order provided for the child to have both parents' last names, and he did not believe it was in the child's best interest not to have his last name. Because the child does not share his last name, Father has encountered difficulties such as picking the child up at church and obtaining information from school and doctors.
Mother testified the parents agreed Doe would be a middle name and Roe would be the last name, and she believed the April 2019 Order specifically provided for the names as such. Mother wanted the child to have the name Roe so he would be part of a cohesive family unit with her because her last name is Roe and she has another child with the last name Roe. Mother believes the child favors the last name Roe, and she testified the child becomes upset and cries when Father tells him that Roe is not the child's last name, which happens frequently. When asked whether she has filled out any documents that do not include Doe as part of the child's name, Mother testified she had not, and she stated she provided Father's contact information to the child's school.
Ellen Hutton, a licensed professional counselor, met with the child about six times, including shortly before trial. The child expressed he did not want to participate in visitation with Father because his father was "rude"; the child would hide when it was time for visitation with Father. The child reported his father would tell him that his last name was Doe and not Roe. Hutton testified the child "definitely identifies" as L. Roe.
On February 10, 2022, the family court entered its Order Clarifying Name of Child, which states: "IT IS ORDERED and the Court CLARIFIES that the last name of this child, the subject of this suit, is [Doe Roe]." The family court ordered Mother to amend the child's birth certificate to reflect the clarified name of Doe Roe and send proof of the amended birth certificate to Father. Further, the Court ordered that both parties include both last names on all documents involving the child. The order also awarded $1,465.00 in attorney's fees to Father's attorney.
B. Child's Name
In her first issue, Mother argues the February 2022 Order is erroneous because (1) the April 2019 Order was not ambiguous; (2) any error was not clerical; and (3) it added new requirements not included in the April 2019 Order. In her second issue, Mother asserts (1) the February 2022 Order grants Father relief that is not supported by his pleadings; and (2) Father's evidence is insufficient to show the name change is in the child's best interest.
A family court may clarify an order it rendered if the court finds the order is not specific enough to be enforced by contempt. See TEX. FAM. CODE § 157.421(a). To be enforceable by contempt, an order must be “clear, specific, and unambiguous.” In re J.J.R.S., 627 S.W.3d 211, 223 (Tex. 2021); see also In re D.N.P., No. 05-19-01083-CV, 2021 WL 790896, at *3 (Tex. App.-Dallas Mar. 2, 2021, no pet.) (mem. op.) (“The only basis for clarifying a prior decree is when a provision is ambiguous.”). To be unambiguous, the order must not “require inferences or conclusions about which reasonable persons might differ.” In re Luther, 620 S.W.3d 715, 722 (Tex. 2021) (cleaned up).
A substantive change made through a clarification order is unenforceable. Tex. Fam. Code § 157.423(b); see also In re R.F.G., 282 S.W.3d 722, 725 (Tex. App.-Dallas 2009, no pet.). The family code does not define "substantive change"; however, courts of appeals have looked to case law addressing impermissible substantive changes in judgments nunc pro tunc and compared those to permissible corrections of clerical errors for guidance. In re R.Y.C., No. 05-21-00837-CV, 2022 WL 3054101, at *2 (Tex. App.-Dallas Aug. 3, 2022, no pet.) (mem. op.) (citing In re D.N.P., 2021 WL 790896, at *3; In re Marriage of Ward, 137 S.W.3d 910, 913 n.4, 913-16 (Tex. App.-Texarkana 2004, no pet.); Dickens v. Willis, 957 S.W.2d 657, 659 (Tex. App.-Austin 1997, no pet.)).
A clarification order is analogous to a judgment nunc pro tunc in that it cannot substantively change a final order. To be clerical in nature, the error must be one that is not the result of judicial reasoning, evidence, or determination. Correction of a clerical error does not effect a substantive change in the court's order. On the other hand, judicial error results from judicial reasoning or determination. Substantive change results from correction of a judicial error.
In re D.N.P., 2021 WL 790896, at *3 (quoting In re V.M.P., 185 S.W.3d 531, 534 (Tex. App.-Texarkana 2006, no pet.) (citations omitted)); see also Gulley v. Gulley, No. 01-18-00234-CV, 2019 WL 3121854, at *3 (Tex. App.-Houston [1st Dist.] July 16, 2019, no pet.) (mem. op.). The determination of whether an alleged error is "clerical or judicial is a question of law." See In re D.N.P., 2021 WL 790896, at *3.
The April 2019 Order states: "IT IS ORDERED that the child formerly known as [L.W. Doe] shall hereinafter be named [L.W. Doe Roe]." The order does not state which name or names became the child's last name. Before entry of the April 2019 Order and for the first four years of the child's life, the child's last name was Doe. Rather than indicating that Doe would no longer be a last name, the April 2019 Order added an additional name, Roe, without specifying whether Doe would remain a last name or become a middle name. The text of the order does not support Mother's assertion that the order specifically changed the child's last name from Doe to Roe.
The April 2019 Order does not set forth the child's name in unambiguous terms. See In re Janson, 614 S.W.3d 724, 728 (Tex. 2020). Rather, determining the child's last name after entry of the April 2019 Order required inferences or conclusions about which reasonable persons might differ. See In re Luther, 620 S.W.3d at 722. It is "not beyond the realm of reason" that Mother and Father intended to agree that Doe Roe was the child's last name or that Roe was the child's last name. See In re Janson, 614 S.W.3d at 728. To find a party in contempt of the order, a court would necessarily have had to infer that Doe either remained a last name or became a middle name. See id. Because the April 2019 Order failed to clearly establish the child's last name and his name remained ambiguous, the family court had authority to clarify its order. The court did not, however, have authority to make a substantive change to the child's name in this proceeding.
The February 2022 Order did not make a substantive change to the child's name. The April 2019 Order states the child's name would be L.W. Doe Roe, and the child's name remained L.W. Doe Roe after entry of the February 2022 Order. The February 2022 Order clarifies the child's last name is Doe Roe; the order does not make a change to the child's name in any respect. We conclude the family court made a clarification that did not require judicial reasoning or determination.
We overrule Mother's first issue to this extent.
Mother also argues the February 2022 Order is erroneous because it impermissibly imposes new obligations on her that did not exist in the April 2019 Order. Specifically, Mother asserts the family court abused its discretion by requiring her to amend the child's birth certificate and send a copy of the amended birth certificate to Father and ordering both parties to include both last names on all documents. The obligations that Mother cites in her brief were not clarifications; they were modifications adding to Mother's obligations. See Gulley, 2019 WL 3121854, at *4 (citing Tex. Fam. Code § 157.423; In re V.M.P., 185 S.W.3d at 534). The April 2019 Order states: "IT IS ORDERED that the vital statistics unit shall amend the birth record of the child formerly known as [L.W. Doe] and change the child's name as specified above." Mother then amended the birth certificate and provided a copy to Father. As to the same topic, the February 2022 Order states: "IT IS FURTHER ORDERED that [Mother] shall amend the child's birth certificate to reflect the clarified last name of [Doe Roe]. IT IS ORDERED THAT [Mother] shall send [Father] proof of the amended birth certificate on or before July 30, 2022, via email and certified mail." The April 2019 Order did not state that Mother must amend the child's birth record, but the February 2022 Order required her to amend the birth certificate and provide a copy to Father. Accordingly, these new requirements are impermissible substantive changes that required judicial reasoning. Likewise, the requirement that Mother and Father include both last names on all documents was a substantive change to the February 2022 Order that did not exist in the April 2019 Order; the family court was not authorized to make this change. We sustain Mother's first issue to this extent.
Father asserts Mother has not preserved this argument for appeal. We disagree. In the family court, Mother argued any change to the April 2019 Order relating to the child's name would be a substantive change that the family court could not make in these proceedings. On appeal, she argues the new obligations imposed on her are substantive changes, which the family court could not make. We conclude Mother's objections to any substantive changes to the April 2019 Order was sufficiently before the family court.
In her second issue, Mother argues (1) the February 2022 Order grants Father relief that is not supported by his pleadings; and (2) Father's evidence is insufficient to show the name change is in the child's best interest.
Mother asserts Father requested the family court change the child's last name to Doe-Roe and his pleadings do not support the clarification of the child's last name as Doe Roe; accordingly, Mother argues, the family court granted more relief than was requested. Father's pleading states his belief that the April 2019 Order was not sufficiently specific, and he requested "the Court construe and clarify the terms of its prior order to make specific that the name of the child and the amendment of the child's birth certificate reflect the following name: [L.W. Doe-Roe]." Alternatively, he asked the child's name be changed to L.W. Doe-Roe.
Section 157.421 of the Texas Family Code permits the family court to clarify an order either "on the motion of a party or on the court's own motion." See TEX. Fam. Code § 157.421(a). As such, the family court was empowered to clarify the child's name on its own motion regardless of the relief for which Father pleaded. See id.
Finally, Mother argues Father presented insufficient evidence to show the last name Doe Roe is in the child's best interest. The family court clarified its April 2019 Order pursuant to section 157.421 of the family code. See TEX. FAM. CODE § 157.421(a). Section 157.421 does not require the family court make a best-interest finding before entering a clarification order, Mother does not cite any authority to this effect, and we have found none. Mother's argument is based on cases arising after a trial court changes a child's name. In this case, the family court did not change the child's name; the proceedings before the family court were not modification proceedings. Rather, they were non-substantive clarification proceedings, and Mother's legal authorities are inapposite.
The child's name as provided in the February 2022 Order is exactly the same as it was in the April 2019 Order. Mother does not argue the April 2019 Order to which she agreed was not in the child's best interest. Had Mother desired to raise an objection based on the best interest of the child, she needed to challenge the April 2019 Order that established the child's name. Based on the facts before us, we conclude Mother has failed to show the family court was required to make a best interest finding before it clarified, but did not change, the child's name pursuant to section 157.421 of the family code.
We overrule Mother's second issue.
C. Attorney's Fees
In her third issue, Mother argues the family court erred by awarding attorney's fees to Father because he did not provide sufficient evidence the incurred fees were reasonable and necessary as required by Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019), and because the evidence is insufficient to support fees awarded for services rendered by a non-attorney. The family court's order states Father incurred reasonable and necessary attorney's fees, expenses, and costs related to clarifying the name of the child in the amount of $1,465.00, and the order awards Father's attorney a judgment in the same amount.
In Texas, each party generally must pay its own attorney's fees. Rohrmoos, 578 S.W.3d at 483. However, a family court may award costs and reasonable attorney's fees and expenses in a suit affecting the parent-child relationship. See TEX. FAM. CODE §§ 106.001, .002. The award of attorney's fees generally rests within the family court's discretion. See El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 761 (Tex. 2012).
A party seeking attorney's fees "bears the burden of providing sufficient evidence" of both the reasonable hours worked and a reasonable hourly rate. Rohrmoos, 578 S.W.3d at 498. Sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services. Id. Contemporaneous billing records are not required to prove the requested fees are reasonable and necessary, but they "are strongly encouraged to prove the reasonableness and necessity of requested fees when those elements are contested." Id. at 502.
Brandon Joseph, Father's attorney, is a partner at the McClure Law Group; he has been a licensed Texas attorney since 2015. He testified his hourly rate in this case was $375 per hour, which is a reasonable and necessary rate for legal services of the type needed in this case in and around Dallas County. Paralegal rates were between $100 and $175 per hour, and paralegals were supervised by an attorney. He testified the paralegal rates were reasonable and necessary for the services provided, taking into consideration the novelty and complexity of the issues before the court. Although his law firm increased its rates during the pendency of this matter, Father 's rates were not increased.
Joseph testified he only sought to recover fees for the time spent preparing for trial and in trial on the name clarification issue. A paralegal spent approximately two hours preparing for trial, and Joseph spent one. Joseph anticipated one hour of trial time, but the trial had lasted nearly two hours at the time of his testimony, and he requested an additional $375 for the additional hour. He calculated his fee and his paralegal's fee to be $1,090 plus the additional time spent in trial. He did not seek fees incurred during discovery. Exhibits to Joseph's testimony include a summary of attorney's fees, the executed engagement agreement with his firm, and redacted invoices. Mother's counsel did not cross-examine Joseph.
Mother argues the evidence is insufficient to support the attorney's fees because there is no evidence of the types of services Joseph completed and there is no evidence that the time spent was reasonable and necessary. We disagree. Joseph's testimony in conjunction with the family court judge witnessing the time Joseph spent in trial is sufficient to show the type of work Joseph performed. Additionally, the family court admitted exhibits showing tens of thousands of dollars in legal fees incurred by Father in this matter, and Mother's attorney did not cross examine Joseph on any matter related to legal fees. On appeal, Mother does not challenge or criticize these invoices. See Interest of C.R.C., No. 05-20-00125-CV, 2022 WL 16549070, at *6 (Tex. App.-Dallas Oct. 31, 2022, no pet.) (mem. op.) These invoices show Father's counsel and other personnel spent more time and Father incurred more legal fees than the fees and costs for which Father sought reimbursement. We conclude the unchallenged evidence is sufficient to support the award of attorney's fees. We overrule Mother's third issue to this extent.
Mother also argues the evidence regarding attorney's fees is insufficient because Joseph provided no testimony or documentary evidence concerning the paralegal's qualifications. We agree. To recover fees for work performed by nonattorney staff, courts have required additional evidence showing (1) the staff member's qualifications to perform substantive legal work; (2) the staff member performed the substantive legal work under the direction and supervision of an attorney; (3) the nature of the legal work performed by the staff member; (4) the staff member's hourly rate; and (5) the total number of hours expended by the staff member. Mahmoud v. Jackson, No. 05-21-00302-CV, 2022 WL 2167683, at *8 (Tex. App.-Dallas June 16, 2022, no pet.) (mem. op.) (citing El Apple I, Ltd., 370 S.W.3d at 763; Land v. Land, 561 S.W.3d 624, 642 (Tex. App.-Houston [14th Dist.] 2018, pet. denied)).
Although Joseph provided the billing rates for paralegals, testified the paralegals were supervised by an attorney, and stated the rates were reasonable and necessary for the services provided, the record contains no evidence about the paralegals' qualifications to perform substantive legal work. See id. (citing Land, 561 S.W.3d at 642 (concluding evidence insufficient to support legal assistant fees when no evidence showed qualifications to perform substantive legal work billed or that legal work was performed under supervision of attorney)). "A fee award cannot compensate for work performed by non-attorney staff members without such evidence." Id. (citing Land, 561 S.W.3d at 642-43). Because the record does not include the necessary evidence, we modify the February 2022 Order to reduce the attorney's fees and expenses awarded by $340.00, which is the amount of fees incurred as a result of work done by a paralegal. We sustain Mother's third issue to this extent.
D. Conclusion
We reverse the family court's February 10, 2022 Order Clarifying Name of Child in so far as the Order requires Mother to amend the child's birth certificate to reflect the clarified name of Doe Roe and requires Mother and Father to include both last names on all documents, including electronic, involving the child the subject of this suit. We strike the following provisions from the February 10, 2022 Order Clarifying Name of Child:
IT IS FURTHER ORDERED that [Mother] shall amend the child's birth certificate to reflect the clarified name of [Doe Roe].
IT IS ORDERED that [Mother] shall send [Father] proof of the amended birth certificate on or before July 30, 2022, via email and certified mail.
IT IS ORDERED that both parties shall include both last names [("Doe Roe")] on all documents, including electronic, involving the child the subject of this suit.
We modify the February 10, 2022 Order Clarifying Name of Child to reduce the attorney's fees and expenses awarded by $340.00. We render judgment that Father has incurred reasonable and necessary attorney's fees, expenses, and costs related to clarifying the name of the child in the amount of $1,125.00.
In all other respects, we affirm the family court's February 10, 2022 Order Clarifying Name of Child.
JUDGMENT
Justices Goldstein and Breedlove participating.
In accordance with this Court's opinion of this date, We REVERSE the family court's February 10, 2022 Order Clarifying Name of Child in so far as the Order requires Mother to amend the child's birth certificate to reflect the clarified name of Doe Roe and requires Mother and Father to include both last names on all documents, including electronic, involving the child the subject of this suit.
We STRIKE the following provisions from the February 10, 2022 Order Clarifying Name of Child:
IT IS FURTHER ORDERED that [Mother] shall amend the child's birth certificate to reflect the clarified name of [Doe Roe].
IT IS ORDERED that [Mother] shall send [Father] proof of the amended birth certificate on or before July 30, 2022, via email and certified mail.
IT IS ORDERED that both parties shall include both last names [("Doe Roe")] on all documents, including electronic, involving the child the subject of this suit.
We MODIFY the February 10, 2022 Order Clarifying Name of Child to reduce the attorney's fees and expenses awarded by $340.00. We RENDER judgment that Father has incurred reasonable and necessary attorney's fees, expenses, and costs related to clarifying the name of the child in the amount of $1,125.00.
In all other respects, we AFFIRM the family court's February 10, 2022 Order Clarifying Name of Child.
It is ORDERED that each party bear its own costs of this appeal.