- Sarah Hirsch Joyce with Schlanger Silver 👩🏼💼(not affiliated with The Part As Friends Company) is one of the best appellate family law attorneys actively practicing in Harris County in 2022.💪
- Ms. Joyce prevailed for her client and the opposing side was ordered to pay $27,000 in attorneys fees in favor of Ms. Joyce’s client.
- Ex-husband lost, in part according to the Court of Appeals because he did not object to the introduction of an attorney’s fee exhibit at trial.
- Ex-husband lost the appeal because he did not hire a lawyer, and regardless of whether you hire a lawyer, the court holds you to the same legal standards.
- Ex-husband failed to set up a complete appellate record.
- Ex-husband would have been much better off to settle this case at the mediation which is why we always say to “part as friends” where possible.
- Having read thousands of briefs myself as a lawyer, I have to say that Sarah Hirsch’s appellate brief that she wrote for her client was utterly gorgeous. 📝
IN THE INTEREST OF E.N.B., A CHILD.
Court of Appeals of Texas, Fourteenth District, Houston.
On Appeal from the 247th District Court, Harris County, Texas, Trial Court Cause No. 2014-30039.
Panel consists of Chief Justice Christopher and Justices Zimmerer and Wilson.
Appellant T.R.B. appeals the trial court’s award of attorney’s fees as part of a reformed order in a suit to modify parent-child relationships, signed January 25, 2021. Appellee A.M. disputes the merits of appellant’s argument and asserts appellant failed to preserve it with the trial court, and she relatedly seeks sanctions for what she contends is a frivolous appeal. We conclude appellant is not entitled to relief and affirm the trial court award of attorney’s fees, and we further decline to award sanctions to appellee.
This matter began on May 27, 2014 as a divorce proceeding between T.R.B. and A.M., who were respectively husband and wife. Their marriage was legally terminated pursuant to an agreed final decree of divorce signed on May 15, 2015. The divorce decree stated it was “enforceable as a contract,” and on the matter of attorney’s fees, it declared that “[t]o effect an equitable division of the estate of the parties and as a part of the division, and for services rendered in connection with conservatorship and support of the [couple’s] child, [E.N.B.] each party shall be responsible for his or her own attorney’s fees, expenses, and costs incurred as a result of legal representation in this case.”
On January 30, 2018, appellee filed a petition to modify the parties’ parent-child relationships with E.N.B, ultimately amended into a sixth amended petition, which among other things sought to modify various provisions of the divorce decree regarding the child. A one-day bench trial was held on that dispute on July 20, 2020. The subject of attorney’s fees for the modification proceeding was addressed on multiple occasions during the hearing, and appellant did not at any point indicate that the divorce decree was an obstacle to an attorney’s fee award. Moreover, appellant announced he was willing to stipulate to the fee amount for the child’s amicus attorney, and he also declined to object to exhibits appellee proffered to prove up the amount of her attorney’s fees.
The record reflects that on August 7, 2020, the trial court issued a non-final rendition reflecting modifications of several provisions of the parties’ divorce decree and awarding appellant $27,687.50 in attorney’s fees. At a hearing held on October 8, 2020, the trial court ordered the parties to provide a final order for the court to sign. Appellee’s counsel provided a proposed order to the court on October 9, 2020. Appellant claimed that he filed an objection to the proposed order on or around that same day. Appellant did not include the objection in the appellate record. On October 25, 2020, the trial court signed the proposed order filed by appellee’s counsel.
On November 11, 2020, appellant filed a motion to set aside the trial court’s judgment. The motion disputed appellee’s counsel filing the proposed order without either conferring with appellant or obtaining his signature, claimed that there were “unagreed and material changes to the original [divorce] decree,” and declared the proposed order “contain[ed] material errors.” However, the motion did not specifically contend that any matters associated with attorney’s fees were at issue in any way. The record reflects the trial court granted the motion on November 11, 2020 and ordered the parties to present another proposed order matching the trial court’s prior rendition. The end result was the trial court’s January 25, 2021 reformed order, which among other things awarded appellee $27,687.50 in reasonable attorney’s fees consistent with the trial court’s earlier rendition. Appellant filed a first amended request for findings of fact and conclusions of law on February 1, 2021, which requested findings and conclusions regarding the attorney’s fee award “in light of appellant prevailing at trial,” though it did not otherwise elaborate on the request for fee-related findings and conclusions. The subsequent findings of fact and conclusions of law touched on the attorney’s fee award, but they did not mention anything regarding a potential argument that the divorce decree prevented such an award. This appeal followed.
As his sole issue on appeal, appellant contends the divorce decree, as it was originally formulated in 2015, prevents a fee award in the parties’ dispute over parent-child relationships. Appellee contests that issue on the merits and moreover contends appellant failed to preserve the issue before the trial court.
Normally, parties can only properly present complaints for appellate review if they have first made a timely objection to the trial court stating the grounds for the ruling the party seeks with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context. Thota v. Young, 366 S.W.3d 678, 689 (Tex. 2012) (quoting Tex. R. App. P. 33.1). Arguments that have otherwise not been preserved with the trial court generally may not be considered by appellate courts. Fed. Deposit Ins. Corp. v. Lenk, 361 S.W.3d 602, 604 (Tex. 2012). Pro se parties are just as subject to the preservation requirement as parties represented by counsel. Harrison v. Reiner, 607 S.W.3d 450, 464 (Tex. App.-Houston [14th Dist.] 2020, pet. denied). On the record presented, appellant failed to preserve his argument for appellate review.
From the appellate record, appellant’s only objections potentially implicating the text of the original divorce decree are his contentions that appellee’s October 9th proposed order contained material changes to the original divorce decree and that it contained material errors. But because these objections are so broadly formulated, they fail to satisfy the specificity requirement for the objection to be preserved for this court’s review. See Fenlon v. Harris Cnty., 569 S.W.3d 783, 795 (Tex. App.-Houston [1st Dist.] 2018, no pet.) (holding that “any complaints” regarding evidence for a claim for unpaid taxes were not preserved by “general statements” to the trial court that the evidence was insufficient to support the underlying claim and that errors were made in calculating the balance). As for appellant’s objections made to the trial court that the October 9th proposed order was filed without either having conferred with appellant or obtained his signature, that the alleged changes to the divorce decree were unagreed, and that an attorney’s fee award was unwarranted due to appellant ostensibly having prevailed at trial, these objections could not have preserved the altogether different argument that the divorce decree’s text barred an attorney’s fee award. See Wohlfahrt v. Holloway, 172 S.W.3d 630, 639-40 (Tex. App.-Houston [14th Dist.] 2005, pet. denied) (“To have preserved error, a party’s argument on appeal must comport with its argument in the trial court.”).
Although appellant contends he presented an objection to the trial court on or around October 9, 2020, that objection did not preserve anything for appellate review because appellant failed to have the objection included in the appellate record. Although appellant filed with the trial court a list of items he wished to include in the clerk’s record on this appeal, he did not include his October 9th objection on that list, and he was required to do so for the objection to be included in the clerk’s record. See Tex. R. App. P. 34.5(a) (enumerating the required contents of a clerk’s record, none of which automatically encompasses appellant’s objection, but which also includes “any filing that a party designates to have included in the record”). Because appellant had the opportunity and the responsibility to have the October 9th objection provide a basis for preservation of his argument on appeal, yet failed to do so, he has waived on appeal whatever argument was made solely in the October 9th objection. See Cantu v. Guerra & Moore, Ltd., LLP, 328 S.W.3d 1, 9 (Tex. App.-San Antonio 2009, no pet.) (“By failing to bring forth a sufficient record to show reversible error, [the appellant] has waived any right to complain of the alleged error on appeal.”). As there is no basis for finding appellant preserved his sole issue on appeal, we overrule the issue.
All that remains is appellee’s request for attorney’s fees pursuant to Texas Rule of Appellate Procedure 45, which she contends is warranted due to this appeal being frivolous. Under Rule 45, damages are authorized when an appeal is objectively frivolous, a standard which requires the appellate record to be reviewed from the viewpoint of the targeted advocate to determine whether they had reasonable grounds to believe the case could be reversed. See Glassman v. Goodfriend, 552 S.W.3d 669, 673 (Tex. App.-Houston [14th Dist.] 2017, pet. denied). Even if damages could otherwise be awarded, the decision to award damages remains within this court’s discretion, which should be exercised with prudence and caution after careful deliberation. Riggins v. Hill, 461 S.W.3d 577, 583 (Tex. App.-Houston [14th Dist.] 2015, pet. denied).
Having considered the record and the parties’ arguments on appeal, we conclude damages should not be awarded pursuant to Rule 45. Of particular importance, appellant’s argument was based on relevant authorities regarding the interpretation and force of judgments, an issue that rightly is at the heart of this appeal. Cf. Gen. Elec. Credit Corp. v. Midland Cent. Appraisal Dist., 826 S.W.2d 124, 125 (Tex. 1991) (per curiam) (holding damages were not warranted in association with a meritless appeal when the sanctioned party made arguments with a reasonable basis in law that were nevertheless “unconvincing”). Accordingly, we will not award damages in this appeal.
For the reasons discussed above, we affirm the trial court’s award of attorney’s fees and deny appellee’s request for damages for this appeal.
 One of appellant’s filings in the record declares that the objection was made on October 16th, rather than October 9th. As this timing discrepancy has no impact on this appeal’s result, this opinion will refer to the objection having been made on October 9th, for simplicity.
Law & Citations That You Failed To Preserve Your Complaint At Trial
Ms. Joyce’s brief states:
“The record reflects that Richard never objected to the authority of the trial court to award of attorney’s fees in the underlying suit. Richard failed to cross- examine, rebut or controvert the evidence and testimony offered by Amy at trial. Therefore, Richard has not preserved his complaint. See Tex. R. App. P. 33.1(a); Tex. Ear Nose & Throat Consultants, PLLC v. Jones, 470 S.W.3d 67, 86–87 (Tex. App.—Houston [14th Dist.] 2015, no pet.) (appellants did not preserve issue regarding basis for attorney’s fees in trial court). While a party may raise a complaint regarding the sufficiency of the evidence to support attorney’s fees for the first time on appeal, Richard raises no such issue here.”
Law that States in Texas The Court IS Permitted To Modify Child Custody
Joyce also explains:
“In fact, Richard conveniently negates any mention of the express authority of a trial court to (1) modify an order that provides for conservatorship, support, or possession of and access to a child and (2) render judgment for reasonable attorney’s fees paid directly to an attorney See, Tex. Fam. Code §§ 156.001 and 106.002; see also, Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002); Bruni v. Bruni, 924 S.W.2d 366 368 (Tex.1996). Richard wholly fails to acknowledge or discuss the Court’s statutory authority, despite the trial court having specifically noted its reliance on section 106.002 in awarding fees within its findings. See CR at 71.”
Law That Says In Texas, a Judge Can Order Attorney’s Fees
Finally, Ms. Joyce reiterates that:
“Texas Family Code Section 106.002 provides that, in a suit affecting the parent-child relationship, the trial court may order reasonable attorney’s fees as costs and order the fees to be paid directly to an attorney. Tex. Fam. Code § 106.002(a). Moreover, Texas courts have consistently upheld a trial court’s authority to order fees in a modification suit such as this one. See, In re B.J.W., No. 05-17-00253-CV, 2018 WL 3322882, at *1 (Tex. App.—Dallas July 6, 2018, no pet.) (mem. op.) (“Section 106.002 of the family code invests a trial court with general discretion to award reasonable attorney’s fees in all suits affecting the parent-child relationship, including modification suits.”); In re R.C.S., 167 S.W.3d 145, 152 (Tex. App.— Dallas 2005, pet. denied) (“It is within the trial court’s sound discretion to award reasonable attorney’s fees in a suit affecting the parent-child relationship.”); Coburn Moreland, 433 S.W.3d 809, 838 (Tex.App.—Austin 2014, no pet.) (finding trial court acted within its discretion in awarding mother the majority of her attorney fees in proceedings on her petition to modify child support and child custody, even though mother did not prevail on all her claims.). The statute does not designate to whom fees may be awarded, nor does it limit the trial court’s designation. Tex. Fam. Code § 106.002(a). While section 106.002 does not impose a prevailing-party requirement, it is one factor a trial court may consider in making a determination on an attorney’s fees award. See In re M.A.N.M., 231 S.W.3d 562, 566 (Tex. App.—Dallas 2007, no pet.); see also In re A.T.T., 583 S.W.3d 914, 924 (Tex. App.—El Paso 2019, no pet.) (recognizing family code allows trial court to award attorney’s fees to prevailing party in SAPCR proceeding); Coburn v. Moreland, 433 S.W.3d 809, 840 (Tex. App.—Austin 2014, no pet.) (“The absence of a bright-line rule (or even an articulable rule) [is] consistent with the broad discretion trial courts are afforded in awarding attorney’s fees in SAPCR proceedings.”). A court reviews a trial court’s award of attorney’s fees in a SAPCR for an abuse of discretion. In re S.C., No. 05-18-00629-CV, 2020 WL 3046203, at *2 (Tex. App.—Dallas June 8, 2020, no pet.) (mem. op.).”