Rodney Smith v. Jill Hawkins

Opinion to: SJR TJ EVK ERA LCH JB GCH JS MM Opinion issued September 23, 2010 In The Court of Appeals For The First District of Texas ____________ NO. 01-09-00060-CV ____________ RODNEY SMITH, Appellant V. JILL NANETTE HAWKINS, Appellee On Appeal from the 310th District Court Harris County, Texas Trial Court Cause No. 1998-28171 MEMORANDUM OPINION This is an appeal from a final order arising from a suit to modify an order in a suit affecting the parent-child relationship (“SAPCR”). In two issues, appellant, Father, challenges the provisions in the order requiring him to (1) pay child support in the amount of $1,200.00 per month to appellee, Mother, and (2) pay appellee, Aunt, $72,433.07 in attorney’s fees. In a third issue, Father challenges Aunt’s standing to intervene in the SAPCR. We affirm. BACKGROUND M.H. was born in 1996 to Father and Mother and was 12 years old at the time of trial. M.H.’s grandmother (“Grandmother”) had cared for M.H. since M.H. was two years old. M.H.’s Aunt maintained a household with Grandmother. Grandmother was named managing conservator of M.H. in 1998. Father and Mother were named possessory conservators. In 2001, Grandmother filed a suit to modify the underlying SAPCR, and the trial court rendered an order again naming Grandmother managing conservator of the child and Father and Mother possessory conservators. In 2007, Father sought to modify the 2001 court order providing for conservatorship of, and child support, for M.H. Grandmother filed an answer and counter-petition to modify, seeking an increase in child support and attorney’s fees. Grandmother also requested that Father pay for M.H.’s health insurance. Aunt intervened, seeking to be named a joint managing conservator with Grandmother, and requested attorney’s fees. On the issues of managing and possessory conservatorship and visitation, the parties entered into a mediated settlement agreement, the terms of which were incorporated into the subsequent modification order. On the issue of conservatorship, Father and Mother were again appointed possessory conservators of M.H., while Grandmother and Aunt were appointed joint managing conservators of M.H. On the issues of child support and attorney’s fees, the parties proceeded to a bench trial. Father testified that he was employed as a contractor and that his monthly net income was $2,633.00. He also testified that he had received a personal injury settlement for injuries sustained in a pipeline explosion, totaling approximately $900,000. Father stated that he had used the settlement proceeds to purchase a home for himself and his parents, an automobile, and a boat. He also stated that he had used the funds to establish a college fund for M.H. in the amount of $20,700.00 and to pay back child support in an amount of $26,000.00. The trial court ordered Father to pay to appellees monthly child support in the amount of $1,200.00, to pay Mother’s attorney’s fees in the amount of $7,000, and to pay Aunt’s attorney’s fees in the amount of $72,433.07. The trial court also entered the following findings of fact and conclusions of law: (1) [Aunt], intervenor, is the maternal aunt of the child and has standing to intervene in this suit to modify the parent-child relationship. (2) [Aunt] is a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the intervention. (3) The amount of net resources available to [Father] per month include $2,633.00 income from his business activities, the house that he bought his parents, vehicles, the equipment he purchased in relation to his business (including a cargo vent trailer, tools, and mower equipment), and all of his expenditures. (4) [Father’s] assets include a personal injury settlement in a net amount of $900,000. In determining net resources available for child support, and in accordance with Texas Family Code section 154.067, the court assigned a reasonable amount of deemed income attributable to assets that do not currently produce income. The court also considered whether certain property that is not producing income can be liquidated without unreasonable financial sacrifice because of cyclical or other market conditions. The court also assigned a reasonable amount of deemed income to income-producing assets that [Father] may have voluntarily transferred. (5) The amount of net resources available to [Father] per month is $10,623.00. (6) Monthly child support paid by [Father] in the amount of $1,200.00 is in the best interest of the child and is consistent with the ability of each party and the proven needs of the child. (7) The proven reasonable financial needs of the child per month exceed $1,872. (8) [Father] should pay child support in the amount of $1,200.00 per month which is in the best interest of the child and consistent with his ability to pay. (9) Good cause exists to award [Aunt] a judgment in the amount of $72,433.07 for attorney’s fees, expenses, and costs, which were necessary as support for the child. Father filed a motion to modify the trial court’s order and a motion for new trial on November 19, 2008. Father also filed a motion to dismiss Aunt’s intervention. The trial court denied both of Father’s motions on January 13, 2009. STANDING We first address Father’s contention that Aunt lacked standing to intervene into the suit affecting the parent-child relationship. A. Standard of Review A party seeking conservatorship of a child must have standing to seek such relief. In re SSJ-J, 153 S.W.3d 132, 134 (Tex. App.—San Antonio 2004, no pet.). “Standing is implicit in the concept of subject matter jurisdiction.” Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Because “[s]ubject matter jurisdiction is essential to the authority of a court to decide a case,” a party’s lack of standing deprives the court of subject matter jurisdiction and renders subsequent trial court action void. Id.; In re Smith, 260 S.W.3d 568, 572 (Tex. App. —Houston [14th Dist.] 2008, orig. proceeding). When standing has been conferred by statute, the statute itself serves as the proper framework for a standing analysis. Smith, 260 S.W.3d at 572. In the context of a suit affecting the parent-child relationship, standing is governed by the Texas Family Code, and “[t]he party seeking relief must allege and establish standing within the parameters of the language used in the statute.” In re H.G., 267 S.W.3d 120, 124 (Tex. App.—San Antonio 2008, no pet.). When standing has been sufficiently alleged in the pleadings and the jurisdictional challenge attacks the existence of jurisdictional facts, the trial court considers the evidence submitted by the parties to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000). The burden of proof on the issue of standing is on the party asserting standing. In re Pringle, 862 S.W.2d 722, 725 (Tex. App.—Tyler 1993, no writ). In a family law case, when the petitioner is statutorily required to establish standing with “satisfactory proof,” the evidentiary standard is a preponderance of the evidence. In re A.M.S., 277 S.W.3d 92, 96 n.4 (Tex. App.—Texarkana 2009, no pet.); Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex. App.—San Antonio 1990, writ denied). The petitioner must show the facts establishing standing existed at the time suit was filed in the trial court. M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001); In re Vogel, 261 S.W.3d 917, 921 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding). If the petitioner fails to meet his burden, the trial court must dismiss the suit. In re M.T.C., 299 S.W.3d 474, 479–480 (Tex. App.—Texarkana 2009, no pet.). A party’s standing to seek relief is a question of law that we review de novo. Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004); In re Vogel, 261 S.W.3d at 920–21. When standing is challenged, the court of appeals in its de novo review must take as true all evidence favorable to the challenged party and indulge every reasonable inference and resolve any doubts in the challenged party’s favor. In re M.J.G., 248 S.W.3d 753, 758 (Tex. App.—Fort Worth 2008, no pet.). B. Governing Law Standing to file a petition seeking conservatorship of a child is governed by sections 102.003 and 102.004 of the Texas Family Code. Section 156.002(b) provides that a person who has standing to sue under Chapter 102 of the Family Code may file a suit for modification in the court that has continuing jurisdiction. Tex. Fam. Code Ann. § 156.002(b) (Vernon Supp. 2009). Section 102.003 provides that “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition” may file an original suit at any time. Id. § 102.003(a)(9) (Vernon Supp. 2009). The purpose of section 102.003 is to provide standing for those who have developed and maintained a relationship with a child over time. In re Y.B., 300 S.W.3d 1, 4 (Tex. App.—San Antonio 2009, pet. denied); T.W.E. v. K.M.E., 828 S.W.2d 806, 808 (Tex. App.—San Antonio 1992, no writ) (examining former Family Code section 11.03(a)(8)). Six months is, in the judgment of the Legislature, the minimum time needed to develop a significant relationship for purposes of standing to seek custody. In re Garcia, 944 S.W.2d 725, 727 (Tex. App.—Amarillo 1997, no writ.); T.W.E, 828 S.W.2d at 808. The requirement that the six months’ possession be within 90 days of filing suit prevents persons who do not have a recent or current relationship with the child from disrupting the child’s life with stale claims. Garcia, 944 S.W.2d at 727; T.W.E., 828 S.W.2d at 808. The trial court’s findings of fact and conclusions of law as they pertain to the issue of Aunt’s standing read as follows: J.H. is a person, other than the foster parent, who has had actual care, control, and possession of the child for at least 6 months ending not more than 90 days preceding the date of the filing of the Intervention. Father argues that, although the testimony established Aunt’s continuing financial contributions to M.H., the evidence was insufficient to prove that Aunt had actual care, control, and possession of M.H. for at least six months ending not more than 90 days before Aunt’s intervention into the suit. Grandmother testified that she and Aunt joined households in 2000 and that Aunt used her income to provide for M.H. M.H.’s principal residence had been with Grandmother and Aunt since 2000. Aunt’s care, custody, control, and possession, while not exclusive, had been consistent over a substantial period of time. Nothing in section 102.003(a)(9) requires that care, custody, control and possession be exclusive. See Tex. Fam. Code Ann. 102.003(a)(9); see also In re M.P.B., 257 S.W.3d 804, 809 (Tex. App.—Dallas 2008, no pet.). Grandmother stated that she and Aunt together made the decision to seek joint managing conservatorship of M.H. Grandmother testified that because of her advanced age,[1] she needed the assistance of Aunt in raising M.H. Mother also testified as to Aunt’s care, control, and possession of M.H. She stated that Aunt had been a “wonderful parent to our child” and that she had kept M.H. safe. Aunt testified that she lived in the household with Grandmother and provides for M.H.’s home by paying the mortgage for the house. Aunt also told the court that she paid for M.H’s health insurance. Aunt further stated that she helped raise M.H. and supported Grandmother, M.H., and herself. Finally, Aunt testified that M.H. considered her a “mother” and that she was involved in M.H’s education and bought all of M.H.’s clothes. After reviewing the evidence presented at trial, we conclude that the trial court’s findings of fact and conclusions of law are supported by a preponderance of the evidence. See Vogel, 261 S.W.3d at 921–22. The evidence establishes that Aunt has lived in the same household as M.H. since 2000 and is a person, other than the foster parent, who has had actual care, control, and possession of the child for at least 6 months ending not more than 90 days preceding the date of the filing of the Intervention. See In re M.P.B., 257 S.W.3d at 809 (noting that care, control, and possession was not exclusive, but finding sufficient evidence of grandmother’s standing when mother had consented to grandmother’s provision of home and care for child.). Father’s issue that the trial court erred in finding that Aunt had standing to intervene in this suit is overruled. MODIFICATION OF CHILD SUPPORT ORDER We now turn to Father’s contentions that (1) the trial court abused its discretion in ordering him to pay $1,200 per month in child support to Aunt and Grandmother and (2) there is insufficient evidence to support the trial court’s order. A. Standard of Review Because the sufficiency of the evidence and abuse-of-discretion standards of review often overlap in family law cases, appellate courts employ a hybrid analysis. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Within this overarching standard, we engage in a two-pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in exercising its discretion. Id. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.—Austin 2006, pet. denied). The traditional sufficiency review comes into play with regard to the first question, and those standards are discussed infra. Id. With regard to the second question, we determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. Stated inversely, the appellate court must conclude that the trial court’s decision was neither arbitrary nor unreasonable. See id. Thus, we resolve the second question by determining whether the trial court’s findings constitute an abuse of discretion. The test for abuse of discretion is whether the trial court acted in an arbitrary and unreasonable manner or whether it acted without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The fact that a trial court may decide a matter within its discretionary authority in a different manner from an appellate court in a similar circumstance does not demonstrate an abuse of discretion. Id. at 241–42. Thus, an abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court’s decision. Id. B. Governing Law Modification of a child-support obligation is proper upon a showing that the circumstances of the child or a person affected by the order have materially and substantially changed since the order was signed. Tex. Fam. Code Ann. § 156.401(a) (Vernon 2008); In re S.B.C., 952 S.W.2d 15, 17 (Tex. App.—San Antonio 1997, no pet.). In a modification proceeding, the trial court compares the financial circumstances of the child and the affected parties at the time that the support order was entered with their circumstances at the time that modification is sought. In re S.B.C., 952 S.W.2d at 17. Under the Texas Family Code, net resources for calculating child support include all wage and salary income and other compensation for personal services, including commissions, overtime pay, tips, bonuses, and all other income actually being received, including gifts and prizes. Tex. Fam. Code Ann. § 154.062(a), (b)(1), (5) (Vernon 2009). When appropriate, in order to determine the net resources that are available for child support, the trial court may assign a reasonable amount of deemed income attributable to assets that do not currently produce income. Id. § 154.067(a) (Vernon 2008). In addition, courts must also consider “whether certain property that is not producing income can be liquidated without an unreasonable financial sacrifice . . . .” Id. Further, the trial court may “assign a reasonable amount of deemed income to income-producing assets that a party has voluntarily transferred or on which earnings have intentionally been reduced.” Id. § 154.067(b) (Vernon 2008). The trial court may also order child support that varies from the Family Code’s child support guidelines and consider evidence of all relevant factors including “any financial resources available for the support of the child.” Id. § 154.123(b)(3) (Vernon 2008). C. Application As an initial matter, Father asserts that because Aunt did not plead for child support in her petition in intervention, the trial court erred in entering this portion of its order. However, in her petition in intervention, Aunt sought to be appointed as “joint managing conservator with [Grandmother], with all the rights and duties of a joint managing conservator.” Grandmother pleaded for modification of child support. By virtue of Grandmother’s request for modification of child support, and of Aunt’s request for appointment with Grandmother as joint managing conservator, Aunt sought child support, as well. Grandmother testified that in 1999, both Father and Mother were ordered to pay $150.00 per month in child support. Grandmother also stated that Aunt had been “footing all the bills” since they joined households and that her income could not support M.H.’s needs. Aunt testified as to her expenses for the care of M.H. Aunt introduced a document outlining all expenses directly attributable to M.H. Aunt testified that she was seeking $1,500.00 per month in child support from Father and that the average monthly expenses relating to M.H. were $1,872.00, which did not include housing, utilities, or transportation. Father testified that his current monthly net income from his employment was $2,633.00 per month. Father also testified that he had received a personal injury settlement award of $1,500,000.00, minus attorney’s fees. Father went on to testify that he had purchased a home, vehicle, and boat with the settlement award, as well as a home for his parents. Father also testified that he had purchased various equipment items for his new contracting business. The trial court’s findings of fact and conclusions of law recited: (1) The amount of net resources available to [Father] per month include $2,633.00 income from his business activities, the house that he bought his parents, vehicles, the equipment he purchased in relation to his business (including a cargo vent trailer, tools, and mower equipment), and all of his expenditures. (2) The proven financial needs of the child per month exceed $1,872.00. (3) Monthly child support paid by [Father] in the amount of $1,200.00 is in the best interest of the child and is consistent with R.S.’s ability to pay and the proven needs of the child. (4) [Father] should pay child support in the amount of $1,200.00 per month. The trial court’s findings of fact and conclusions of law indicated that the court took into account the personal injury settlement that Father was awarded in determining the net resources available for child support in accordance with Texas Family Code section 154.067. After reviewing the evidence presented at trial and the trial court’s findings of fact and conclusions of law, we conclude that the record contains both probative and substantive evidence to support the trial court’s determination that the parties’ circumstances had materially and substantially changed so as to warrant an increase in Father’s child support obligation. Moreover, the record contains both probative and substantive evidence to support the trial court’s award of $1,200 per month. See Goodson v. Castellanos, 214 S.W.3d 741, 757 (Tex. App.—Austin 2007, pet. denied) (holding that trial court could consider assets from home and business in addition to earnings when making child support determination). Because there is some probative and substantive evidence to support the trial court’s determinations, we cannot say that the trial court acted arbitrarily or unreasonably when it increased Father’s child support obligation from $150.00 to $1,200.00. Father’s issue relating to the modification of child support is overruled. ATTORNEY’S FEES Finally, we address Father’s issue that the evidence is insufficient to support the award of $72,433.07 in attorney’s fees to Aunt. A. Standard of Review We again engage in the two-pronged inquiry to determine whether the trial court (1) had sufficient information on which to exercise its discretion and (2) erred in exercising that discretion. See Zeifman, 212 S.W.3d at 588. B. Governing Law The Family Code allows the trial court to award attorneys’ fees in suits affecting the parent-child relationship. Tex. Fam. Code Ann. § 106.002 (Vernon 2008). There are several factors that a trial court should consider in determining the amount of reasonable attorneys’ fees to award. Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997); Hays & Martin, L.L.P. v. Ubinas-Brache, 192 S.W.3d 631, 636 (Tex. App.—Dallas 2006, no pet.). These factors include the time, labor, and skill required to perform the legal service properly; the novelty and difficulty of the questions involved; the customary fees charged in the local legal community for similar legal services; the amount involved and the results obtained; the nature and length of the professional relationship with the client; and the experience, reputation, and ability of the lawyer performing the services. Arthur Andersen & Co., 945 S.W.2d at 818. However, a trial court is not required to receive evidence on each of these factors. Burnside Air Conditioning & Heating, Inc. v. T.S. Young Corp., 113 S.W.3d 889, 897–98 (Tex. App.—Dallas 2003, no pet.). Rather, the court can also look at the entire record, the evidence presented on reasonableness, the amount in controversy, the common knowledge of the participants as lawyers and judges, and the relative success of the parties. Id. at 897. Testimony from a party’s attorney about that party’s attorney’s fees is taken as true as a matter of law if the testimony “is not contradicted by any other witness and is clear, positive, direct, and free from contradiction.” Blockbuster, Inc. v. C-Span Entm’t, Inc., 276 S.W.3d 482, 490 (Tex. App.—Dallas 2008, pet. granted, judgm’t vacated w.r.m.) (citing Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 882 (Tex. 1990)). This is especially true when the opposing party had the means and opportunity to disprove the testimony, but failed to do so. Id. C. Application Father argues that Aunt’s counsel “did not segregate his services and charges to distinguish between fees charged for issues for which agreements were reached at mediation, and those issues for which trial was undertaken and upon which his client prevailed.” Father further argues that Aunt has not established that the attorney’s fees were rendered on behalf of her. Aunt’s petition in intervention alleged that she had to hire a lawyer in connection with this suit and requested that Father be ordered to pay reasonable attorneys’ fees and expenses through trial and appeal. Aunt’s attorney, Stewart Gagnon, provided the court with an invoice outlining all expenses that Aunt had incurred during the course of his representation of her and stated that the fees that Aunt had accrued as of the day before his testimony totaled $63,790.28. Gagnon testified that all of the work done in his representation of Aunt was reasonable and necessary to represent Aunt in this case. Gagnon also testified that the fees were customary in Harris County for cases such as this and for representation by attorneys with his background and experience. In response, Father did not submit any controverting evidence about Aunt’s attorneys’ fees. After reviewing the evidence presented and the trial court’s findings of fact and conclusions of law, we conclude that the record contains both probative and substantive evidence to support the trial court’s award of attorneys’ fees to Aunt in the amount of $72,433.07. Aunt’s request for attorneys’ fees in the prayer of her petition in intervention was sufficient to authorize an award of attorneys’ fees to her. See Tull v. Tull, 159 S.W.3d 758, 762 (Tex. App.—Dallas 2005, no pet.). Moreover, the trial court did not abuse its discretion in not requiring Aunt to segregate the attorney’s fees incurred between the issues that the parties resolved in mediation and those that were tried. See In re T.M.K., No. 04-02-00673-CV, 2003 WL 21747637, at *3 (Tex. App.—San Antonio, July 30, 2003, pet. denied) (mem. op. not designated for publication); see also Carswell v. Cloud, No. 03-03-00117-CV, 2003 WL 22348842, at *5 (Tex. App.—Austin, Oct. 16, 2003, pet. denied) (mem. op. not designated for publication) (holding that attorney’s fees are not limited when parties settle some issues and present remaining issues to trial court to decide). Father does not contend that Aunt sought fees for specific claims that do not allow for them. Cf. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 314 (Tex. 2006). Father’s issue relating to trial court’s award of attorneys’ fees to Aunt is overruled. CONCLUSION We affirm the order of the trial court. Sherry Radack Chief Justice Panel consists of Chief Justice Radack, and Justices Bland and Sharp. [1] Grandmother was 83 years old.