Opinion
No. 07-14-00170-CV
04-07-2016
MARTIN DELAINE LEWIS, APPELLANT v. JOANNE A. VASQUEZ AND THE OFFICE OF ATTORNEY GENERAL, APPELLEES
On Appeal from the 211th District Court Denton County, Texas
Trial Court No. 2006-31044-211; Honorable L. Dee Shipman, Presiding
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant, Martin DeLaine Lewis, appeals the trial court's order awarding $8,000 in attorney's fees "as additional child support arrears." Lewis asserts (1) the fees should have been segregated between an enforcement action and a modification action and (2) the attorney's fees were not "reasonable and necessary" under the facts of this case. Appellee, Joanne A. Vasquez, asserts (1) that Lewis waived error by failing to request segregation of fees, and alternatively, (2) segregation of claims was unnecessary, (3) attorney's fees can legally be awarded as child support, and (4) the evidence that fees were reasonable and necessary was sufficient. We affirm.
BACKGROUND
The parties are the unmarried parents of A.M.V.-L. Beginning on March 1, 2007, Lewis was ordered to pay $494 per month in child support and $71 per month in medical support for the benefit of the child. Lewis failed to make payments beginning in December 2011. On May 14, 2013, Vasquez filed a Motion for Enforcement, seeking enforcement of Lewis's child support obligation through a judgment confirming the support arrearage, wage withholding, and contempt. In response, on July 16, 2013, Lewis filed a Counterpetition to Modify Parent-Child Relationship, seeking the retroactive reduction of his child support obligation.
To protect the child's privacy, we refer to him by his initials. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
The trial court heard both motions on July 31, 2013. At the hearing, both parties agreed that child support had not been paid as ordered. Lewis gave testimony about his financial situation, raising the defense of an inability to pay. He also testified to the existence of a second child in support of his requested modification. Vasquez's attorney testified concerning the nature and extent of attorney services provided in connection with the case. He testified that a reasonable and necessary fee for the services of an attorney representing Ms. Vasquez would be $5,000. During his testimony, he did discuss the hourly rate for various services provided; however, he did not segregate the fees associated with the enforcement action from those associated with the modification action.
At the conclusion of the hearing, the trial court orally pronounced that Lewis was in contempt for non-payment of his child support obligation. The court assessed a 180-day period of confinement; however, it suspended the imposition of that confinement for a term of five years, conditioned on the timely payment of future child support payments and payment of arrears. The court found the arrearage of child support to be $8,001.52 ($7,704.00 unpaid child support, plus $297.52 in accrued interest) and the medical support arrearage to be $1,180.11 ($1,136.00 unpaid medical support, plus $44.11 in accrued interest), through July of 2013. It also awarded $4,000 in attorney's fees "in the nature of child support since it was incurred to enforce child support." The court further reduced Lewis's current child support obligation to $300 per month (leaving medical support at $71 per month) and it ordered that he pay an additional sum of $195 towards his arrearage. On August 28, 2013, the trial court signed an order granting Vasquez a cumulative judgment for child support arrearages, medical support arrearages, attorney's fees, and court costs totaling $13,181.63. The order of August 28 did not, however, address the trial court's pronouncement concerning the modification of Lewis's child support obligation.
The court's oral pronouncement of judgment did not include an effective date concerning the modification of Lewis's child support obligation.
Before a written order could be entered concerning the modification of his child support, another child was born to Lewis, and he again petitioned the court for a further reduction of his child support obligation. Vasquez objected to the any additional reduction of Lewis's child support obligation, arguing that Lewis had no legal responsibility for the third child. A hearing was scheduled for October 25, 2013; however, that hearing was ultimately postponed until March 10, 2014. In the meantime, on December 13, 2013, Vasquez filed a Motion to Revoke Suspension of Commitment, alleging that Lewis had failed to abide by the interlocutory order of August 28.
A hearing addressing Lewis's motion to modify support and Vasquez's motion to revoke was held on March 10, 2014. During that hearing, Vasquez's attorney testified that a reasonable and necessary fee for the legal services rendered through trial would be a "sum of not less than $10,000." In testifying as to attorney's fees, Vasquez's attorney did not segregate between the fees associated with the enforcement action and the fees associated with the child support modification proceedings.
It is unclear whether this $10,000 sum included the $5,000 previously testified to at the hearing held on July 31, 2013.
At the conclusion of the hearing, the trial court issued its Order Enforcing and Modifying Support Obligation, holding Lewis in contempt and ordering that he be jailed for thirty days, with the commitment to be served on weekends. The court also finalized Lewis's request for a modification of child support by recalculating his obligation based on his duty to support two other children. According to that recalculation, child support was reset at $219.00 per month (again leaving medical support at $71 per month), retroactively applied to September 1, 2013. The arrearage for child support was recalculated to account for both the retroactive modification of support and any interim payments made for a new total arrearage of $6,487.54. In addition, the court ordered Lewis to pay the amount of $8,000 for attorney's fees "as additional child support," for a total arrearage judgment of $14,487.54. Lewis was ordered to pay that judgment by paying the sum of $292.50 per month, beginning April 1, 2014. In addition, the medical support arrearage was confirmed to be $1,587.57, and a judgment was granted in favor of the Office of Attorney General for that amount. Lewis was ordered to pay the medical support judgment by paying the sum of $97.50 per month, also beginning April 1, 2014. Interest on both arrearages was set by the law at 6% per annum. Lewis did not request findings of fact at close of proceedings.
Based on the rulings of the trial court concerning the retroactive application of the modification of Lewis's child support obligation and the overall confirmation of arrearages, we conclude the $8,000 in attorney's fees awarded includes the $4,000 previously pronounced at the conclusion of the July 31, 2013 hearing. --------
DISCUSSION
Lewis argues that because Vasquez's attorney did not segregate his fees between the enforcement action and the modification action, there is no evidence to support the award of attorney's fees "as additional child support arrears." He also argues there was insufficient evidence to show that the attorney's fees were reasonable and necessary. Vasquez, in addition to rejecting both of Lewis's arguments, contends that Lewis waived any error by failing to request segregation during trial and failing to request findings of fact afterwards. We find that Lewis's failure to request a segregation of attorney's fees at trial waives this issue and that there was sufficient evidence to show that attorney's fees were reasonable and necessary.
As a general principle, in an enforcement proceeding, if the trial court finds that the respondent has failed to pay child support, the court shall order the respondent to pay the movant's reasonable attorney's fees and all court costs in addition to the arrearage. See TEX. FAM. CODE ANN. § 157.167 (West 2014). Fees and costs awarded under this section may be enforced by any means available for the enforcement of child support, including enforcement by contempt. Id.
Additionally, in a modification proceeding, it is within the discretion of the trial court to award reasonable attorney's fees and expenses. See TEX. FAM. CODE ANN. § 106.002 (West 2014). However, in a non-enforcement modification proceeding, a trial court does not have the discretion to characterize attorney's fees awarded pursuant to this section as necessaries or as additional child support for purposes of enforcement by contempt. Tucker v. Thomas, 419 S.W.3d 292, 293 (Tex. 2013). Because a trial court has broad discretion in awarding attorney's fees under the Family Code, it does not abuse its discretion when an award of attorney's fees is supported by the evidence. In the Interest of M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—Dallas 2007, no pet.). The reasonableness of an attorney's fee award is a question of fact which must also be supported by competent evidence. Id.
Based on these general principles, Lewis contends the trial court abused its discretion by ordering the attorney's fees in this case "as additional child support arrears" because there is no factual basis in the record to segregate the attorney's fees associated with the enforcement proceeding from the attorney's fees associated with the modification proceeding.
ISSUE ONE—FAILURE TO SEGREGATE FEES BETWEEN CONTEMPT AND MODIFICATION
If a party neglects to object to a failure to segregate fees at trial, the objection is waived and cannot bar the recovery of attorney's fees. Green Int'l v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (finding that in a case containing multiple causes of action, only some of which entitle a party to the recovery of attorney's fees, an objection to the fact that the attorney's fees were not segregated is waived if no one objects to the lack of segregation as to specific claims). Here, the trial court had the discretion to award attorney's fees in connection with the enforcement proceeding which was enforceable as additional child support. Lewis did not object at trial when the fees were not segregated between the modification action and the enforcement action; therefore, he has waived this error on appeal.
Furthermore, an exception exists to the duty to segregate attorney's fees among multiple claims, at least one of which supports an award of attorney's fees enforceable as child support and at least one of which does not, when the services rendered are in connection with claims arising out of the same facts or transaction and their prosecution or defense entails proof or denial of essentially the same facts. Kurtz v. Kurtz, 158 S.W.3d 12, 22 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Under those circumstances, the party suing for attorney's fees may recover the entire amount for all claims that satisfy this exception. Id. Here, Vasquez sought to enforce Lewis's child support obligation, whereas Lewis sought to retroactively modify that same obligation. Resolution of one claim necessarily involved resolution of the other claim. Accordingly, proof of facts necessary for the enforcement of that obligation required Vasquez to address the amount of the obligation—a fact inextricably intertwined with Lewis's modification cause of action. Under these facts, we conclude that Vasquez was not required to segregate attorney's fees incurred in pursuing her child support enforcement action from those incurred in defending Lewis's counterclaim seeking to retroactively reduce the amount of that obligation.
ISSUE TWO—EVIDENCE THAT ATTORNEY'S FEES WERE REASONABLE AND NECESSARY
In the event neither party requests findings of facts and no findings of fact are recorded in a nonjury trial, all findings of fact necessary to support the verdict of the court are implied. Goodyear Tire and Rubber Co. v. Jefferson Constr. Co., 565 S.W.2d 916, 918 (Tex. 1978). However, "[w]hen the appellate record includes the reporter's and clerk's records, these implied findings are not conclusive and may be challenged for legal and factual sufficiency in the appropriate appellate court." BMC Software Belg., N.V. v. Marchland, 83 S.W.3d 789, 795 (Tex. 2002) (citing Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989)). Though Lewis failed to request findings of fact, the reporter's and clerk's records are present, allowing this court to examine the sufficiency of the evidence to support the implied findings of fact. In doing so, we review the sufficiency of the evidence using well-known standards of review. See City of Keller v. Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005) (legal sufficiency); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 406-07 (Tex. 1998), cert. denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998) (factual sufficiency).
The standard for determining the reasonableness of a claim for attorney's fees is the El Apple standard, which requires some documentation of the services performed, who performed them, hours spent, the date performed, and the hourly rate before a court can award attorney's fees. El Apple I, Ltd. v. Olivas, 370 S.W.3d 757, 764 (Tex. 2011). As discussed above, Lewis's modification proceeding is intertwined with Vasquez's enforcement proceeding. At trial, Vasquez's attorney testified to the nature of the tasks done, the person performing the tasks, and the hourly rate. In addition, the trial court admitted into evidence a summary of fees charged, together with the billing sheets for services provided from December 10, 2013 through February 28, 2014, showing a beginning balance of $5,574.59, plus additional accrued charges of $5,233. The attorney further testified that "a reasonable and necessary fees [sic] for the services rendered in this matter on behalf of Ms. Vasquez should—through trial is a sum of not less than $10,000." Under these facts, we cannot say the court abused its discretion by awarding $8,000 as reasonable and necessary attorney's fees because the evidence was both legally and factually sufficient to support an award of that amount. Furthermore, we cannot say the trial court abused its discretion by providing that the award of attorney's fees was enforceable by any means available for the enforcement of child support.
CONCLUSION
The trial court's order is affirmed.
Patrick A. Pirtle
Justice