Opinion
No. 01-07-00750-CV
Opinion issued May 21, 2009.
On Appeal from the 247th District Court Harris County, Texas, Trial Court Cause No. 2006-35492.
Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.
MEMORANDUM OPINION
Appellant, D'Juana Parr ("D'Juana"), brings this restricted appeal of a default judgment rendered in favor of appellee, Brian K. Parr ("Brian"), in a suit to modify the parent-child relationship. In five issues, D'Juana argues that she is entitled to a restricted appeal and that the trial court erred by changing the parties' conservatorship status, failing to give D'Juana any specific enforceable periods of visitation with the couple's child, and awarding Brian attorney's fees.
D'Juana also argues that "the default judgment restricts access to the court system by requiring mediation prior to her filing any further actions in this cause." However, she has neither listed this argument as a point of error nor cited any authority to support it. We consider the argument inadequately briefed and decline to address it.
Brian has not filed an appellate brief.
We dismiss as moot in part and vacate in part.
Background
Brian and D'Juana had a son, J.M.P., in 1998 and divorced in Harris County in May of 2001. The trial court appointed Brian and D'Juana joint managing conservators of J.M.P., entered a standard possession order, and ordered D'Juana to pay child support.
On April 24, 2006, Brian filed an emergency petition to modify the parent-child relationship, asking that D'Juana "be denied access and visitation to the Child" or, in the alternative, that D'Juana's contact with J.M.P. be supervised "by a SAFE program or its equivalent" and "restricted to the Child's home state, currently North Carolina." D'Juana did not file an answer or appear at trial.
After hearing Brian's evidence, the trial court, among other matters not relevant to this appeal, removed Brian and D'Juana as joint managing conservators, appointed Brian sole managing conservator, appointed D'Juana possessory conservator, and awarded Brian $3,500 in attorney's fees "in the nature of child support."
In addition, the trial court ordered that D'Juana "have visitation periods with [J.M.P.] only on the third (3rd) Saturday of every month" and that "all such visitation periods shall be continuously supervised and occur only through a Forsythe County [North Carolina] Family Law Services program, which provides monitored access between [D'Juana] and [J.M.P.]. . . . If such a program is not available, IT IS ORDERED that [D'Juana] not be allowed any access or visitation until further ORDER of this Court."
The trial court entered its order on August 31, 2006. D'Juana filed her notice of restricted appeal on February 27, 2007.
Restricted Appeal
In her first issue, D'Juana contends that she is entitled to review by restricted appeal. To prevail on restricted appeal, an appellant must establish the following: (1) she filed the notice of the restricted appeal within six months after the judgment or order appealed from was signed; (2) she was a party to the underlying suit; (3) she did not timely file a post-judgment motion or request for findings of fact and conclusions of law, or notice of appeal; (4) she did not participate, either in person or through counsel, in the actual trial of the case; (5) the trial court erred; and (6) the error is apparent from the face of the record. TEX. R. APP. P. 30, 26.1(c); Wright Bros. Energy, Inc. v. Krough, 67 S.W.3d 271, 273 (Tex.App. 2001, no pet.). The face of the record consists of all the papers on file in the appeal, including any reporter's record. Binder v. Joe, 193 S.W.3d 29, 32 (Tex.App. 2006, no pet.).
The record reflects that D'Juana satisfied the first four requirements. We now determine whether the trial court erred and whether that error is apparent from the face of the record.
Voluntary Relinquishment
In her second and third issues, D'Juana contends that the trial court erred by changing the parties' conservatorship status and by entering an order containing visitation provisions that are "so vague and non-specific that they are wholly unenforceable." On December 8, 2008, the trial court entered an order, of which we have taken judicial notice, terminating D'Juana's parental rights on the grounds that D'Juana voluntarily relinquished her parental rights and that termination was in the best interest of J.M.P. Hence, D'Juana no longer has either visitation rights or conservator status with regard to J.M.P., and there is no longer any case or controversy with regard to those issues. "If a controversy ceases to exist — `the issues presented are no longer "live" or the parties lack a legally cognizable interest in the outcome' — the case becomes moot." Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001) (citing Murphy v. Hunt, 455 U.S. 478, 481, 102 S. Ct. 1181, 1183 (1982)). We dismiss D'Juana's second and third issues as moot.
Award of Attorney's Fees
In her fourth issue, D'Juana contends that the trial court erred by awarding attorney's fees because Brian did not present any evidence to substantiate such an award. Because a restricted appeal affords an appellant the same scope of review as an ordinary appeal, the appellant may challenge the legal and factual sufficiency of the evidence. Miles v. Peacock, 229 S.W.3d 384, 387 (Tex.App. 2007, no pet.) (citing Norman Commc'ns v. Tex. Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997)).
Standard of Review
We must sustain a legal sufficiency point: (1) when there is a complete absence of a vital fact; (2) when rules of law or evidence preclude according weight to the only evidence offered to prove a vital fact; (3) when the evidence offered to prove a vital fact is no more than a scintilla; or (4) when the evidence conclusively establishes the opposite of the vital fact. El-Khoury v. Kheir, 241 S.W.3d 82, 86 (Tex.App. 2007, pet. denied) (citing City of Keller v. Wilson, 168 S.W.3d 802, 810 nn. 15-16 (Tex. 2005)). "The final test for legal sufficiency must always be whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review." City of Keller, 241 S.W.3d at 827.
Section 106.002 of the Texas Family Code provides that a "court may render judgment for reasonable attorney's fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney" in a suit affecting the parent-child relationship. TEX. FAM. CODE ANN. § 106.002(a) (Vernon 2008). The trial court has broad discretion in deciding the award of attorney's fees under Section 106.002. Tull v. Tull, 159 S.W.3d 758, 760 (Tex.App. 2005, no pet.) (citing Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996)). However, the reasonableness of attorney's fees is a question of fact and must be supported by competent evidence. Tull, 159 S.W.3d at 760 (citing Reyna v. Reyna, 584 S.W.2d 926, 927 (Tex.Civ.App. 1979, no writ)).
Discussion
Neither Brian nor his attorney testified as to the amount of attorney's fees Brian incurred, let alone as to the reasonableness of that amount, and there is no evidence of either elsewhere in the record. The $3,500 figure appears only in the trial court's judgment, which states only that "good cause exists" for the award of attorney's fees. Hence, there is no evidence in the record supporting the trial court's award. We hold that the evidence is legally insufficient to support the award of attorney's fees to Brian, sustain D'Juana's fourth issue, and vacate the trial court's award of attorney's fees to Brian.
Characterization of Attorney's Fees
In her fifth issue, D'Juana contends that the trial court erred by awarding Brian attorney's fees "in the nature of child support." Because we have vacated the award of attorney's fees to Brian, we need not reach this issue.
Conclusion
We conclude that D'Juana has met the requirements for review by restricted appeal of the award of attorney's fees to Brian, and we vacate the award. We dismiss D'Juana's second and third issues as moot. We need not reach D'Juana's fifth issue.