in the Interest Of: A.K.S., J.L.S. and R.G.S.
05-14-00233-CV
| Tex. App. | Mar 16, 2015Background
- Parents divorced; father (Smith) filed a suit to modify the parent–child relationship.
- Parties mediated and settled most issues; attorney’s fees were reserved for later determination.
- The trial court held an in-chambers, off-the-record conference with counsel (no reporter present) and then signed an order awarding Vallejo’s counsel $25,000 for attorney’s fees, citing fees "for the safety and welfare of the minor children."
- Vallejo moved for partial new trial asserting there was no record of the in-chambers evidence; the trial court held a hearing but denied the motion.
- On appeal Smith challenged legal sufficiency of the evidence supporting the attorney’s-fee award; the appellate court found no record evidence that Vallejo incurred fees or that any fees were reasonable and necessary.
Issues
| Issue | Plaintiff's Argument (Vallejo) | Defendant's Argument (Smith) | Held |
|---|---|---|---|
| Legal sufficiency of evidence for $25,000 attorney’s-fee award | The trial court properly awarded fees after the in-chambers conference; Smith acquiesced to the off-record procedure | No evidence in the record shows Vallejo incurred fees or that fees were reasonable/necessary | Reversed fee award; remanded for redetermination (insufficient evidence) |
| Awarding fees for "safety and welfare of the minor children" | Fees were appropriately characterized as for children’s safety and welfare | No record evidence supports this basis for fees | Not addressed on merits because award reversed for lack of evidence |
Key Cases Cited
- Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) (abuse of discretion standard explained)
- Gonzalez v. Gonzalez, 331 S.W.3d 864 (Tex. App.—Dallas 2011) (overlap of sufficiency review and abuse-of-discretion in family-law contexts)
- In re B.N.L.-B., 375 S.W.3d 557 (Tex. App.—Dallas 2012) (burden on fee claimant to show reasonableness and necessity)
- In re Dep’t of Family & Prot. Servs., 273 S.W.3d 637 (Tex. 2009) (invited error doctrine and preservation principles)
- Tittizer v. Union Gas Corp., 171 S.W.3d 857 (Tex. 2005) (standards for invited error/estoppel)
- In re Marriage of Pyrtle, 433 S.W.3d 152 (Tex. App.—Dallas 2014) (remand for new trial on attorney’s fees when evidence is insufficient)
- In re Marriage of C.A.S., 405 S.W.3d 373 (Tex. App.—Dallas 2013) (discussion of abuse-of-discretion review in family-law matters)