Brian Watts appeals from a family-violence protective order granted in favor of his wife, Staci Watts. He argues that the evidence was legally and factually insufficient to support a finding that family violence has occurred and is likely to occur in the future, and the trial court abused its discretion by awarding Staci attorney's fees. We affirm.

Because the parties share the same last name, we refer to them by their first name. We use an alias to refer to the parties' child.

BACKGROUND

The record shows that, on September 22, 2021, Staci sought a two-year family-violence protective order against Brian in Travis County district court. In her application, Staci alleged that Brian engaged in conduct that constituted family violence against her, which included: pushing her, grabbing her forcefully causing bruising, and kicking a hole in a cabinet and punching a hole in a wall to intimidate her. The trial court entered a temporary ex parte protective order and show cause order the following day, and the matter was tried to the bench in November 2021.

After a trial on the merits where the court received evidence and heard testimony from Staci, Brian, Carol Augustine (Staci's mother), and Kelsey Guetschow (Brian's prior neighbor), the trial court granted a two-year protective order. The trial court found that family violence had occurred and either family violence or the reasonable threat of it is likely to occur in the future. The trial court ordered Brian to refrain from committing acts of family violence against Staci and not to use any force that would cause injury to her. The court also ordered Brian to refrain from any physical restraint of Staci and to avoid using force to destroy property or objects in her presence. Finally, based upon the testimony and evidence presented by Staci's attorney, the trial court ordered Brian to pay $28,000.00 in reasonable and necessary attorney's fees to Staci. Upon Brian's request, the trial court entered findings of fact and conclusions of law.

The trial court limited the order to Brian and Staci and found that no violence or threat was alleged or demonstrated towards the couple's only child, Sarah.

Testimony at Trial

At trial, Staci testified that she was living in Austin when she met Brian, who owned a condominium in Austin but lived in Iowa. Staci moved to Iowa to pursue her relationship with Brian, and she married Brian in 2018. The couple had a daughter, Sarah, approximately two years later. In July 2021, Staci left Iowa and brought Sarah back to Texas, where Staci's family resides. When Brian came to visit Staci in Austin in September 2021, a disagreement ensued. Late into the night on September 8, Brian began driving Sarah from Austin to Iowa, and Staci joined them. Brian eventually turned the vehicle around and returned the family to his Austin condominium that same evening. Staci subsequently filed an application for a protective order.

Staci testified at trial that after she married Brian, he changed into a man she was scared of and controlled by. Staci stated that Brian shoved her, pushed her down, threw her down, slammed her against the wall, and pinned her against the wall with her wrists held above her so that she could not move. Staci also said that Brian stood on her feet so that she could not move, tackled her to the ground, straddled her, and pinned her down. Staci testified that "the physical things were extremely scary." For instance, she testified that Brian laid on her with his entire body weight, which would terrify Staci because Brian knew she was claustrophobic. Staci stated that Brian told her that she could see her family in Texas if she performed oral sex on him. She also testified that Brian regularly called her names such as "dumb fucking cunt," "stupid fucking twat," and "dirty fucking whore."

The trial court admitted an audio recording at trial that depicts Sarah crying as Brian repeatedly screamed to Staci, amongst other derogatory phrases, "You are a fucking cunt," and Brian called Staci a "fucking spoiled little fucking bitch" and "miserable fucking bitch." In a second audio recording that the trial court admitted, Brian told Staci that she had a "condescending cunty attitude." Brian also said, "You are a cunt"; called Staci an "ungrateful fucking bitch" and "fucking twat"; and told Staci to "go fuck off to never never land." On the recording, the couple discuss that this interchange occurred in front of Sarah.

Staci testified that in March 2019, she discovered a duffel bag, a backpack, and a shoebox containing different kinds of steroids in their closet, along with needles, gauze pads, and alcohol wipes. Staci said that when she questioned Brian about the steroids, he screamed that she was a "sneaky little cunt" and that if she pressed the subject, he would send her "crawling back to Texas on [her] ass." Staci said that Brian grabbed her tight by the shoulders and pushed her, and she told Brian that he was hurting her. She stated that Brian shoved her hard enough that she stumbled into the coffee table, and she told Brian that he was scaring her. Staci testified that she was terrified as Brian followed her around the kitchen island, threw things, and kicked a hole in the kitchen cabinet. Staci testified that she had bruises on her arms from how hard Brian squeezed her. The trial court admitted into evidence photographs that Staci took of the steroids that she found and the hole that Brian made in the kitchen cabinet.

Staci testified that she also found steroids in Brian's personal gym, in his bathroom drawer, and in his truck.

Staci testified that on July 28, 2019, Brian followed her around the kitchen and screamed at her. She stated that when she tried to get away, Brian grabbed her arm and held it so tightly that she thought her arm would break. Staci testified that Brian then grabbed her and slammed her head against the wall. Staci stated that Brian stepped on her foot with all of his body weight and pinned her wrists above her head so that she could not move. Staci stated that she cried and told Brian to let her go but that Brian pushed his thumbs tighter into her wrists. Staci testified that, after Brian released her, she tried to grab her cellular phone to call for help, but Brian took her cellular phone; slammed it on the ground; stomped on it; and said, "Good luck fucking calling anybody with that." Staci testified that when she later attempted to leave their home, Brian tackled her, pinned her down, and screamed at her that no one would believe her because she was a "fucking girl from Texas." The trial court admitted photographs that Staci took of her smashed cellular phone and the bruises she purportedly sustained to her feet during the incident. Staci testified that she also sustained bruises to her wrist, thigh, and shoulders.

Staci testified that in October 2019, Brian punched a hole through the wall of their home six inches from where she was standing, and the trial court admitted a photograph that Staci took of the hole. Staci testified that she was afraid when this happened.

Staci testified that on June 25, 2020, when she was in her last trimester of pregnancy, Brian threw her against the dining table, pushed his chest and forehead onto hers, and called her an "ungrateful little bitch." Staci stated that Brian held her arms tightly, and she told Brian that he was hurting her and hurting the baby. Staci testified that her arms were bruised from the encounter.

Staci testified that when the incision from her cesarean was days old and Sarah was in the neonatal intensive care unit (NICU), Brian physically picked Staci up and threw her onto their bed. Staci felt a tearing and thought the stitches from her cesarean had come undone, and she screamed out in pain. Staci testified that Brian left her on the bed, and she cried in pain as she made her way off the bed and down the stairs of their home to return to the hospital to visit Sarah. Staci stated that although she felt pain for at least a week after this incident, she did not report Brian because she was worried about Sarah's condition in the NICU.

Staci testified that in April 2021, Brian cornered her and screamed at her when she confronted him about Adderall she found in their home. When Staci tried to get her cellular phone, Brian pushed her and ran into the bedroom where her phone was located. When Staci made another comment about Adderall, Brian came out of the bedroom; chased Staci down the hall; and threw her onto the ground, causing her to hit her head. Staci stated that she cried from the pain, as Brian stood over her and said something similar to "don't ever fucking threaten me again you stupid fucking bitch."

Staci stated that she later found Brian downstairs going through her cellular phone, and Brian pushed her repeatedly when she reached for her phone. Staci stated that when Brian saw a photograph in her phone of Sarah with Brian's mother, he called Staci a "backstabbing fucking cunt," picked Staci up, threw her on the ground, and slammed the door shut that Staci was opening to leave the house. Staci stated that Brian picked her up and slammed her against the wall twice. Brian then let Staci go and threw her phone at her, but she locked herself in the guest bedroom because Brian was still yelling. Staci said that Brian then "busted" through the guest bedroom door, so she locked herself in the guest bathroom. Staci said that when she finally left the guest bathroom, she discovered that Brian had taken the keys to her car. The trial court admitted photographs of the injuries that Staci purportedly sustained to her arms and legs as a result of the incident. Staci testified that she experienced pain because of her injuries, particularly near the back of her skull, and that she was afraid for her physical safety during the incident. Staci testified that she went to Brian's parents' home the next morning. While she was there, Brian sent her text messages stating that she had one hour to remove her belongings from their home and he was divorcing her.

Staci testified that Brian forbade Staci from communicating with his parents.

Staci testified that, on July 28, 2021, Brian followed her into the bathroom and screamed at her for nearly an hour, shoved her, and punched his fists like he was going to hit her. Staci said that Brian called her a "fucking cunt" and "dirty whore" and told her that he would take Sarah from her. Staci said that when she told Brian his behavior scared her, he responded, "It should scare you." When Brian went to sleep, Staci took Sarah to Austin and stayed with her parents. Brian came to Austin on September 7, 2021, and Staci and Brian had a couple's therapy session at Brian's condominium in Austin the next day.

Staci stated that she tried to leave Brian's condominium the evening of September 8, 2021, because Brian yelled at her, but Brian shoved her away from the door and held her car keys. Staci called 911 twice that night because Brian attempted to leave Austin with Sarah and drive through the night to Iowa. Staci testified that she accompanied Brian on the late-night drive so that she could remain with Sarah; however, Brian eventually turned the car around and brought the family back to his condominium in Austin that same evening.

Staci testified that Brian was calm during the minutes that he recorded himself on his cellular phone while he was walking with Sarah from his condominium to his vehicle on September 8, but Brian was screaming that evening when he was not filming himself.

After the family returned to Austin, Staci left the condominium with Sarah. Staci testified that she ran down twenty-two flights of stairs with Sarah, called her mother, and hid in a public bathroom for thirty minutes sitting on a toilet. Staci's parents came to get her and Sarah, and Brian ultimately returned to Iowa.

Staci testified that altercations with Brian resulted in her sustaining physical injuries at least ten times. She stated that Brian told her that she better put on her war paint because he would destroy her and if she tried to take Sarah, he would hunt her down. Staci testified that she started counseling services with the Iowa domestic abuse intervention program and spoke to counselors at SafePlace Austin. Staci testified that the only physical contact she made with Brian was self-defense attempts to get him off her when she was pregnant. Staci requested a protective order because she was terrified of Brian and believed that he was capable of hurting her.

On cross-examination, Staci testified that she did not report the injuries that Brian inflicted on her to a medical facility or law enforcement because she was afraid; she did not want Brian to be arrested; and she did not want to take attention away from Sarah, who was in the NICU.

Staci's mother, Carol Augustine, testified that during the first trimester of Staci's pregnancy, Brian called raging and "roaring" at Augustine to "come get your fucking daughter. Get her the fuck out of my house." Augustine was scared for Staci and her unborn baby and Augustine knew that Staci was afraid. Augustine testified that Brian physically hurt Staci in April 2021, and Augustine saw the bruises Brian inflicted on Staci's arms and knees. Augustine also stated that during a telephone conversation with Staci in the summer of 2021, she could hear Brian yelling in an out-of-control manner that he would destroy Staci and calling Staci a "cunt."

On cross-examination, Augustine testified that she never saw Brian harm Staci in her immediate presence, although Augustine heard Brian threaten Staci multiple times and saw the resulting bruises.

Augustine testified that she and her husband drove sixteen hours from Austin to Iowa for Sarah's first birthday. Shortly before they arrived at Staci and Brian's home, Staci telephoned Augustine to say that Augustine had to stay at a hotel. Augustine testified that she could hear Brian cussing and yelling in the background as Staci spoke, and Staci told Augustine that she was afraid. Augustine stated that Staci stayed in the hotel with them that night because Brian kicked Staci out of the house, and both Staci and Augustine were afraid of Brian that evening.

During his testimony, Brian acknowledged that he screamed relentlessly and used aggressive and degrading language towards Staci that included "cunt," "bitch," "whore," "dumbass," and "moron." He also acknowledged that he had anger issues, he threw Staci out of the house, and he told Staci approximately one hundred times that he was filing for divorce. Brian testified, however, that he never shoved Staci, slammed her against the wall, grabbed her hair, or stepped on her. Brian testified that when he laid on top of Staci or pinned her down, he was joking. Brian stated that he never physically harmed Staci and only placed his hands on Staci to restrain her when she physically assaulted him or caused severe damage to their home. Brian testified that Staci kicked, slapped, hit, and punched him. He also stated that Staci shoved either her phone or her fingernail into his arm and drew blood the evening of September 8, 2021.

Brian acknowledged that on July 28, 2021, he told Staci twenty-four times that she was kicked out of their home, he demanded Staci provide confirmation that she returned to Texas, and he told Staci seventeen times that her parents could not stay in the Watts's home. Brian also testified that he called Staci inappropriate names while Sarah was in the house.

Brian did not refute Staci's testimony that he became "unhinged" in March 2019 and stated that he has a prescription for testosterone replacement therapy. Brian testified that he kicked a hole in the kitchen cabinet because Staci "would not stop and settle down." Brian testified that he grabbed Staci's wrist to restrain Staci when she threatened to throw decorative rocks through their large dining room window. Brian stated that when Staci subsequently ended up in the kitchen smashing plates and bowls, he telephoned Augustine and asked Augustine to calm Staci down.

Brian testified that Staci incurred bruises in April 2021 when she fought against him as he restrained her from damaging a railing in their home. He stated that after he took Staci's cellular phone into their bedroom and locked the door, Staci tried to break down the bedroom door and rip off a metal railing. Brian stated that he never prevented Staci from leaving the house. Brian testified that, when he and Staci were arguing in their mudroom, he restrained Staci's arms because she tried to kick him.

Brian testified that law enforcement made no arrests after they responded to both of Staci's 911 calls on September 8, 2021. Brian stated that he decided to drive Sarah to Iowa that night because Staci threatened to file an injunction to prevent him from taking Sarah to Iowa, and he told Staci that she could come to Iowa with him.

The trial court admitted a video that Brian recorded depicting him driving the family out of Austin late at night on September 8, 2021. Although Brian initially testified that he had not edited the video, he admitted on cross-examination that he had edited it.

On cross-examination, Brian acknowledged that his prior sworn testimony by affidavit filed in Iowa court proceedings averring that he never yelled or acted aggressively in front of Sarah was not accurate. Brian testified that after he provided that sworn testimony labeling Staci's claims a fallacy, he heard recordings of Sarah crying while he yelled words such as "you're a fucking cunt" at Staci. Brian testified that he was seeking assistance for his anger issues and that his father would not let him work in the family business because of his anger issues. In Brian's opinion, however, the problem was not with him primarily, as he and Staci both shared blame.

DISCUSSION

Sufficiency of the Evidence

In his first issue, Brian argues that the evidence was legally and factually insufficient to support a finding that he committed acts of family violence against Staci and that family violence was likely to occur in the future. We review legal and factual sufficiency of the evidence supporting a protective order using the same standards of review that we apply to review jury findings. See B.C. v. Rhodes, 116 S.W.3d 878, 883 (Tex. App.-Austin 2003, no pet.) (citing K.C. Roofing Co. v. Abundis, 940 S.W.2d 375, 377 (Tex. App.-San Antonio 1997, writ denied)); Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991) (instructing that trial court's findings of fact in bench trial have same force and dignity as jury's verdict upon questions). "The test for legal sufficiency is 'whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review'" and requires us to credit evidence favorable to the finding if a reasonable factfinder could and disregard contrary evidence unless a reasonable factfinder could not. Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass'n, 593 S.W.3d 324, 333 (Tex. 2020) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). In reviewing factual sufficiency, we consider all the evidence and uphold the finding unless it is so against the great weight and preponderance of the evidence as to be manifestly unjust, shock the conscience, or clearly demonstrate bias. Windrum v. Kareh, 581 S.W.3d 761, 781 (Tex. 2019) (citing Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)).

Under both the legal and factual sufficiency standards, the factfinder is the sole judge of the credibility of the witnesses and the weight to be given to their testimony. See Wilson, 168 S.W.3d at 819 (addressing legal sufficiency standard); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (addressing factual sufficiency standard). We may not substitute our judgment for that of the trier of fact even if we would reach a different answer on the evidence. See Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998); Windrum, 581 S.W.3d at 781 (citing Pool, 715 S.W.2d at 635 (instructing that appellate court conducting factual sufficiency review should not substitute its judgment for jury's)).

The trial court must render a family-violence protective order if it finds that family violence has occurred and is likely to occur in the future. Tex. Fam. Code §§ 81.001, 85.001(b). "Family violence" is defined in the Family Code to include:

an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself.

Id. § 71.004(1).

"The statutory language of [Texas Family Code section 85.001] does not require that a likelihood finding [of future family violence] be based on more than one act of family violence." Fontenot v. Fontenot, 667 S.W.3d 894, 915 (Tex. App.-Houston [14th Dist.] 2023, no pet.) (quoting Boyd v. Palmore, 425 S.W.3d 425, 429 (Tex. App.-Houston [1st Dist.] 2011, no pet.)); see Tex. Fam. Code §§ 81.001, 85.001. Rather, courts have recognized that "often times past is prologue," and "past violent conduct can be competent evidence which is legally and factually sufficient to sustain the award of a protective order." Fontenot, 667 S.W.3d at 915. Although a pattern of family violence is sufficient evidence to support a likelihood finding, a pattern of family violence is not a necessary prerequisite to such a finding. See Boyd, 425 S.W.3d at 432; Maples v. Maples, 601 S.W.3d 23, 28 (Tex. App.-Tyler 2020, no pet.) (mem. op.).

The trial court made the following relevant findings of fact:

1. The Court finds that family violence has occurred and is likely to occur in the future.

2. There is credible evidence of a history or pattern of family violence by [Brian] directed against [Staci], and [Staci] has been the victim of family violence, including threats that reasonably placed [Staci] in fear of imminent physical harm.

3. There is credible evidence that family violence or the reasonable threat of family violence by [Brian] directed against [Staci] is likely to occur in the future.

4. In particular, the Court finds that it is undisputed that [Brian] physically grabbed [Staci] during the course of arguments on more than one occasion, that bruising resulted, and that it happened again.

5. The Court likewise finds that it is undisputed that [Brian] kicked a hole through a cabinet in a reasonable proximity to [Staci] during the course of an argument with her. While the Court found that the parties disputed [Staci's] exact location, they did not dispute her presence nor the fact that this occurred during an argument with her.

6. The Court likewise finds [Staci's] testimony the more credible that, on another occasion, [Brian] knocked a hole in the wall in close proximity to [Staci's] head.

7. The Court finds-as both fact and law-that physically and intentionally destroying a part of a structure in proximity to a spouse during an argument constitutes a more than credible threat of violence, and, in fact, constitutes actual violence, albeit not to the person at that moment.

8. The Court finds clear evidence, in this case, that [Brian] acted with absolute disregard for whether or not he issued threats to [Staci] on various occasions. The Court finds [Brian's] testimony regarding the reasons for putting his hands upon [Staci] particularly unconvincing and lacking in credibility.

9. . . . With that said, the Court finds that [Staci's] testimony was more credible, particularly as to incidents involving threats and violence. Furthermore, the Court found that [Brian's] testimony lacked credibility, particularly related to the violence and threat allegations based upon [Brian's] conduct in Iowa.

10. It is in the best interest of [Staci], the family, or household that a protective order be issued against [Brian].

12. Reasonable and necessary attorney's fees in excess of $28,000.00 were incurred by [Staci]. Good cause exists to award $28,000.00 in attorney's fees.

Brian specifically contests findings 1, 4 and 5 because he contends that he testified that he never physically harmed Staci and she was not near him when he kicked the hole in the kitchen cabinet.

The evidence reflects that in March 2019, Staci was afraid when Brian grabbed her by the shoulders, shoved her, and kicked a hole in the kitchen cabinet. The evidence demonstrates that in July 2019, Brian grabbed Staci's arm, slammed her head against a wall, stepped on her foot, and pinned her wrists above her head. Brian gripped Staci tighter after Staci told Brian that she was in pain, and Brian broke Staci's cellular phone when she reached for it to call for help. The evidence also shows that in October 2019, Staci was afraid when Brian punched a hole through the wall of their home near to where Staci was standing.

The evidence further demonstrates that Brian threw Staci against a table when she was in her last trimester of pregnancy, and Brian threw Staci onto a bed when the stitches from her cesarean were days old, causing her extreme pain. The evidence reflects that in April 2021, Brian threw Staci onto the ground and caused her to hit her head, repeatedly pushed her when she reached for her cellular phone, and slammed her against the wall. Staci was afraid for her safety during the incident, she experienced pain, and she sustained injuries to her arms and legs. This evidence is legally sufficient to support a finding that family violence by Brian occurred and that Brian was likely to commit family violence in the future. See Fontenot, 667 S.W.3d at 894; Boyd, 425 S.W.3d at 432 (concluding that evidence of single act of past family violence can be legally sufficient to support trial court's finding of likelihood of future family violence).

Addressing factual sufficiency, the evidence contrary to the finding of family violence included that Brian testified that he did not shove Staci or slam her against a wall and that if he pinned her down, he was joking. Brian also testified that, to the extent photographs of bruises on Staci's leg and shoulder were accurate, Staci incurred the bruises because she fought against Brian as he restrained her. Although Brian may have testified that he did not commit acts of family violence, the factfinder is the sole judge of the credibility of the witnesses and the weight to be given their testimony. See Wilson, 168 S.W.3d at 819. The trial court admitted a video that Brian recorded of himself leaving his Austin condominium with Sarah late at night on September 8, 2021, which he contends is inconsistent with Staci's testimony. Staci testified that Brian was calm while he recorded himself that evening and acted differently during other portions of the evening. When there is competing evidence, the fact finder is free to believe one witness and disregard another witness's testimony. See id. Having reviewed the record as a whole, we conclude that the evidence supporting the trial court's findings of fact and finding of family violence by Brian is not so weak or against the great weight and preponderance of the evidence that the findings are clearly wrong and unjust. See Fontenot, 667 S.W.3d at 915. We therefore conclude that the evidence is not factually insufficient to support the trial court's findings as to past and future family violence, and we reject Brian's argument that there is insufficient evidence supporting the protective order. See Tex. Fam. Code §§ 71.004, 81.001, 85.001; Fontenot, 667 S.W.3d at 915. Thus, we overrule Brian's first issue.

Attorney's Fees

In his second issue, Brian challenges the fee award, arguing that: (1) the fee award should be reversed if the protective order is set aside; (2) there is no evidence in the record that the trial court considered Brian's income and ability to pay prior to awarding attorney's fees, as required by Texas Family Code section 81.005(b); and (3) the evidence is insufficient to support the fee award. Because we are affirming the trial court's order, Brian's first argument presents no basis for reversing the fee award.

Addressing Brian's second argument, we note that the trial court may assess reasonable attorney's fees against the party found to have committed family violence. Id. § 81.005(a). "In setting the amount of attorney's fees, the court shall consider the income and ability to pay of the person against whom the fee is assessed." Id. § 81.005(b). We review the trial court's award of attorney's fees in a protective order proceeding for abuse of discretion. Sparks v. Rutkowski, No. 03-17-00452-CV, 2018 WL 3799940, at *2 (Tex. App.-Austin Aug. 3, 2018, no pet.) (mem. op.). A trial court abuses its discretion when it acts arbitrarily, unreasonably, without regard to guiding principles, or without supporting evidence. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998).

Section 81.005 "creates a divided burden of proof on the issue of the amount of attorney's fees to be assessed in a family violence protective order case." Dolgener v. Dolgener, 651 S.W.3d 242, 265 (Tex. App.-Houston [14th Dist.] 2021, no pet.); see Amrouni v. Bhakhrani, No. 05-21-00278-CV, 2022 WL 3754539 at *6 (Tex. App.-Dallas Aug. 20, 2022, no pet.) (mem. op.); Cox v. Walden, No. 13-20-00283-CV, 2022 WL 120014, at *7 (Tex. App.-Corpus Christi- Edinburg Jan. 13, 2022, no pet.) (mem. op.) Staci, as the applicant for a family-violence protective order that included a request for attorney's fees, had the initial burden to put forward competent evidence demonstrating that she incurred reasonable attorney's fees as a result of applying for and prosecuting her application for the protective order. See Tex. Fam. Code § 81.005(a); Dolgener, 651 S.W.3d at 265. Brian's burden under section 81.005 was not to deny the fees incurred by Staci, but to avoid being assessed some or all of those fees because of an independent reason-his inability to pay. See Tex. Fam. Code § 81.005; see also Ford v. Harbour, No. 14-07-00832-C V, 2009 WL 679672, at *6 (Tex. App.-Houston [14th Dist.] Mar. 17, 2009, no pet.) (mem. op.) (explaining this division of burden of proof makes logical sense because it imposes burden on party with best access to required information). Brian's burden, in the nature of an affirmative defense, was thus to present evidence of his income and inability to pay if he wanted the trial court to consider his ability to pay any assessment of attorney's fees. See Dolgener, 651 S.W.3d at 265; Ford, 2009 WL 679672, at *6.

In support of Staci's request for attorney's fees, her counsel testified that Staci incurred $34,592.00 in reasonable and necessary attorney's fees as a result of the legal representation and the trial court admitted counsel's detailed billing records. Brian offered no controverting evidence and did not cross-examine Staci's attorney concerning the fees evidence. Brian also failed to offer evidence of his income or inability to pay an assessment of attorney's fees. We therefore conclude that Brian failed to raise the issue of an inability to pay Staci's attorney's fees in the trial court. See Dolgener, 651 S.W.3d at 265. Thus, he has not shown error on appeal. See id.

Brian's final argument is that the evidence is insufficient to support the fee award. "A reasonable attorney's fee is one that is not excessive or extreme, but rather moderate or fair." Sullivan v. Abraham, 488 S.W.3d 294, 299 (Tex. 2016). "A claimant seeking an award of attorney's fees must prove the attorney's reasonable hours worked and reasonable rate by presenting sufficient evidence to support the fee award sought." Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501-02 (Tex. 2019). "Sufficient evidence includes, at a minimum, evidence of (1) particular services performed, (2) who performed those services, (3) approximately when those 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. at 502.

Staci's attorney presented invoices that itemized the particular services performed, who performed those services, what day they were performed, how long it took to perform the services, and the hourly rate for each person performing the service. Counsel testified that the invoices reflected only work associated with the protective order application, and that all fees reflected were actually incurred or billed to Staci and were reasonable and necessary in this case. Counsel also testified that he attended the University of Texas School of Law, he has been licensed to practice law for eighteen years, and he has been practicing law in the State of Texas since 2008. Counsel stated that he has expertise in domestic-violence and protective-order cases based upon his prior employment with the University of Texas School of Law and legal aid, where he litigated numerous protective orders. Counsel testified that his hourly rate was $400 per hour, which he believed was reasonable based upon his experience. He explained that case-specific facts supported that the fee amount was reasonable, including that litigation involved two separate hearings and a two-day trial and it was difficult to effectuate service of process.

Brian does not specify how the trial court's award of attorney's fees was not reasonable. The record reflects that Staci's attorney presented the trial court with detailed invoices and that he testified to his experience and the specific facts of the case that required the amount of time and services that were performed. We conclude that the unchallenged evidence, including the invoices and the attorney's testimony, is legally and factually sufficient to support the trial court's award. Considering the entire record and applying the factors set forth in Rohrmoos Venture, 578 S.W.3d at 494, we cannot conclude that the trial court abused its discretion in its award of attorney's fees to Staci. We overrule Brian's final issue.

CONCLUSION

Having overruled Brian's appellate issues, we affirm the trial court's order.

Watts v. Watts

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Watts v. Watts

Watts v. Watts

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Watts v. Watts

Opinion

Watts v. Watts

Watts v. Watts

Case Details

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