Amaka Njeako v. Ebele Njeako

Affirmed in Part, Dismissed in Part, and Memorandum Opinion filed November 17, 2005 Affirmed in Part, Dismissed in Part, and Memorandum Opinion filed November 17, 2005. In The Fourteenth Court of Appeals ____________ NO. 14-04-00991-CV ____________ AMAKA NJEAKO, Appellant V. EBELE NJEAKO, Appellee On Appeal from the 309th District Court Harris County, Texas Trial Court Cause No. 00-56960 M E M O R A N D U M   O P I N I O N Appellant Amaka Njeako appeals from orders modifying her child-support obligations and holding her in contempt for violating the possession provisions of her divorce decree. In three issues, she challenges the trial court=s decisions to (1) proceed with the modification hearing when she did not have counsel, (2) increase her child support and grant income withholding for appellee Ebele Njeako=s attorney=s fees, and (3) hold her in contempt for violating orders in the divorce decree regarding possession of their child.[1] We dismiss the appeal from the contempt order and affirm the remaining orders. Procedural Background Amaka and Ebele Njeako were divorced July 2, 2001. Ebele was named primary joint managing conservator of their only child. Among other matters, the divorce decree provided that Amaka was to have possession of the child for certain specified periods and to return the child to Ebele at specific times. The decree also provided Amaka was to pay Ebele $180 per month in child support. In late 2003 or early 2004, Amaka filed a petition to modify the parent-child relationship.[2] The hearing on Amaka=s petition to modify was eventually set for June 7, 2004. By June 7, 2004, Ebele had filed motions in which he sought enforcement of the child support and possession and access orders and a counter-petition in which he sought to adjust Amaka=s child support to conform to the statutory guidelines and to have Amaka pay his attorney=s fees.[3] During this same time period, on February 10, 2004, Amaka had filed a motion for contempt alleging Ebele had violated the possession orders. Amaka=s motion was submitted by Attorney Shola A. Sutton. On June 7, 2004, Amaka appeared without counsel and repeatedly informed the trial court she needed to obtain an attorney before she could proceed. The Ebele=s attorney ad litem represented to the court that Amaka=s counsel, who was Amaka=s fifth attorney, A[o]fficially withdrew probably a couple of weeks ago when the order was signed but we found out at the mediation he was going to withdraw.@ The trial court decided to defer Ebele=s enforcement motions until Amaka could obtain counsel but to proceed on the remaining matters. The court swore all parties who expected to testify and conducted a hearing to determine whether Amaka qualified for court appointed counsel. Amaka testified she worked forty hours per week and was paid $13.50 per hour. The court found Amaka was not legally indigent and not entitled to court appointed counsel, but reset the enforcement hearing to July 15, 2004. The court next asked whether Amaka was ready to proceed on her petition to modify, Amaka indicated she was not, and the court overruled her objection to proceeding. Amaka informed the court, AMy attorney just left two weeks ago.@ The court then proceeded on Ebele=s motion to modify child support. Ebele was the only witness in support of the modification. He testified he was familiar with the guidelines and, based on the guidelines and Amaka=s making $13.50 per hour, he was asking for $448.49 in child support. He also introduced Amaka=s 2003 tax return, on which she listed the child as a dependent. He requested that he be given half of the $3,863 Amaka received as a refund. Ebele=s attorney stated she charged Ebele $175 per hour, had spent thirty-five hours on the motion to modify, including documents, mediation, all consultation, and hearings. The total was $6,125, including $110 for service and $16.48 for certified copy. She further stated the amount was reasonable and necessary and customarily charged in Harris County. The amount she was asking was solely for the modification. The trial court subsequently entered a written order, which, among other matters, required Amaka to pay $381.14 per month in child support.[4] The court awarded Ebele=s attorney judgment of $6,100 for legal services, with judgment awarded as child support against Amaka. On July 15, 2004, the trial court heard Ebele=s motions for enforcement. Amaka appeared with counsel. Ebele testified regarding thirty-one occasions, ending on January 18, 2004, on which Amaka had failed to return the child at the ordered time.[5] He testified he kept an accurate list of the dates and times Amaka did not return the child on time; he did not introduce the list into evidence. Amaka testified she returned the child on time on the dates about which Ebele testified. On August 10, 2004, the trial court entered an order finding Amaka violated the possession order on seventeen occasions between June 9, 2002 and June 8, 2003, and held Amaka in contempt for each separate violation. The court assessed punishment for each violation at thirty-day=s confinement in the county jail, with the periods of confinement to run concurrently. The court further ordered the commitment suspended and placed Amaka on two year=s probation. As conditions of probation, Amaka was to return the child as ordered by the court and to pay $750, taxed as costs, at a rate of $50 per month until paid in full. Amaka filed motions for new trial challenging both the modification order and the contempt order. The court heard the motions on September 21, 2004. Ebele called Amaka=s former counsel, Attorney Sutton. Sutton testified he informed Amaka on May 5, 2004, the day of the mediation, that he would no longer represent her. He told her to be sure to get another attorney and believed she would have had enough time to obtain an attorney before the June 2004 hearing. He believed he filed a motion to withdraw Aprobably a few days after the mediation.@ He could not state exactly when he filed a motion to withdraw because Amaka had come to his office and forcibly removed the file from one of his secretaries. The trial court denied the motions for new trial by written order. Discussion I. Denial of Amaka=s Oral Request for Time to Obtain Counsel In her first issue Amaka contends the trial court erred or abused its discretion in conducting the modification hearing after she requested more time to obtain an attorney. She argues the trial court=s decision to proceed violated her due process rights and did not serve the child=s best interest. We review denial of a continuance under an abuse-of-discretion standard. See In re E.L.T., 93 S.W.3d 372, 374 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (in context of parental rights termination case, stating decision to grant or deny motion for continuance is within trial court=s sound discretion). We cannot substitute our judgment for the trial court=s, but must determine only whether the trial court=s action was so arbitrary as to exceed the bounds of reasonable discretion. Id. A trial court abuses its discretion if its decision is arbitrary, unreasonable, and without reference to any guiding rules and principles. Id. at 375. Texas Rule of Civil Procedure 251 provides, ANo application for a continuance . . . shall . . . be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.@ Tex. R. Civ. Pro. 251. Ebele objected to continuing the modification hearing, and Amaka does not argue a continuance was warranted by operation of law. Generally, when movants fail to comply with rule 251=s requirement that a motion for continuance be Asupported by affidavit,@ a reviewing court presumes the trial court did not abuse its discretion in denying the motion. Villegas v. Carter, 711 S.W.2d 624, 626 (Tex. 1986). In Villegas, however, the supreme court reasoned, AIt would be unrealistic to apply this presumption to lay movants who without fault have their attorney withdrawn.@ Id. Villegas involved a situation in which the trial court had granted counsel=s motion to withdraw two days before trial. Id. at 625. Villegas appeared at trial without counsel and told the court that he wanted time to get an attorney, that he first learned about the attorney=s attempt to withdraw six days earlier, that the attorney would not turn over his file to him, and that he wanted to hire a specific attorney, but the attorney would not take the case until he could look over the file. Id. at 625B26. The supreme court held the trial court abused its discretion in denying Villegas=s request because the evidence showed Villegas was not negligent or at fault for causing his attorney=s withdrawal, two days was too short a time to find a new attorney and for the new attorney to investigate the case, and the former attorney=s refusal to turn over the file was preventing Villegas from obtaining a new attorney. Id. at 626. In contrast, in Taherzadeh v. Galeh-Assadi, an appeal from the grant of a protective order, the Dallas Court of Appeals refused to apply the Villegas exception to the presumption and held an oral motion by a lay movant was insufficient to preserve a complaint about denial of a continuance. 108 S.W.3d 927, 928 (Tex. App.CDallas 2003, pet. denied). The court distinguished the case before it from Villegas: Here, Taherzadeh had nine days between the date he received notice and the date of the hearing to obtain counsel. On the day of the hearing, the court also gave Taherzadeh at least thirty minutes before the hearing to call an attorney, but Taherzadeh stated he was unable to reach one. Taherzadeh was never in a situation similar to that of Villegas. Therefore, we conclude the exception in Villegas does not apply to the present case, and Taherzadeh did not preserve his complaint for our review. Id. at 928.[6] The present case is more analogous to Taherzadeh than to Villegas. Amaka had between two weeks and one month to obtain a new attorney. According to Ebele=s attorney=s representation, the new attorney would have been Amaka=s sixth attorney in the case. Amaka did not indicate to the trial court whether she had an attorney or how much time she needed to get one. We conclude the trial court did not abuse its discretion in denying Amaka=s oral motion for time to obtain an attorney for the modification hearing. Neither did the trial court=s decision violate Amaka=s due process rights. There is no mechanical test for determining when the denial of a continuance is so arbitrary as to violate due process. Guerrero‑Ramirez v. Tex. State Bd. of Med. Examiners, 867 S.W.2d 911, 916 (Tex. App.CAustin 1993, no writ) (citing Ungar v. Sarafite, 376 U.S. 575, 591, 84 S. Ct. 841, 850 (1964)). Instead, a reviewing court must consider the circumstances presented to the trial judge at the time the request is denied. Id. (citing Ungar, 376 U.S. at 591, 84 S. Ct. at 850). By her own admission, Amaka had knowledge of her attorney=s withdrawal at least two weeks before the modification hearing. According to the testimony of her former attorney, he informed her of his withdrawal a month before the hearing. In neither her oral request nor her subsequent motion for new trial, did she present the trial court with any evidence to show her failure to be represented at the hearing was not due to her own fault or negligence. Cf. Moss v. Malone, 880 S.W.2d 45, 51 (Tex. App.CTyler 1994, writ denied) (stating right to be heard in court by counsel of one=s choice is a valuable right and unwarranted denial of right is fundamental error when litigant, without negligence or default on his part, is deprived of right of counsel on eve of trial).[7] Under the circumstances here, we cannot conclude the trial court violated Amaka=s due process rights when it denied her oral request for additional time to obtain an attorney. Finally, we cannot conclude denial of Amaka=s request implicated the child=s best interests. The child was represented by her own attorney ad litem at the modification hearing. Amaka has provided no case law in support of her claim it is in the child=s best interest that the parent be afforded the opportunity to procure counsel, and we have found none. We overrule Amaka=s first issue. II. Modification of the Child Support Order and Award of Attorney=s Fees In her second issue, Amaka contends the trial court Aerred@ in increasing child support without verification of income and in granting income withholding for Ebele=s attorney=s fees. We review a trial court=s order setting or modifying child support under an abuse of discretion standard. In re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curium)). The test for abuse of discretion is whether the court acted arbitrarily or unreasonably, that is, without reference to guiding rules and principles. Id. (citing Worford, 801 S.W.2d at 109). In determining whether the trial court abused its discretion, we view the evidence in the light most favorable to the trial court=s actions and indulge in every legal presumption in favor of the judgment. Id. In this context, allegations of legal and factual insufficiency are not independent grounds of error because the appropriate standard of review is abuse of discretion. See id. (citing Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991)). Amaka faults the trial court for increasing her child support obligation because there was no evidence her circumstances have changed materially and substantially to justify an increase in child support. Texas Family Code section 156.401, however, provides in relevant part: (a) Except as provided by Subsection (b), the court may modify an order that provides for the support of a child if: (1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of: (A) the date of the order=s rendition; or (B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based; or (2) it has been three years since the order was rendered or last modified and the monthly amount of the child support award under the order differs by either 20 percent or $100 from the amount that would be awarded in accordance with the child support guidelines. Act of May 27, 2003, 78th Leg., R.S., ch. 1036, ' 21, 2003 Tex. Gen Laws 2987, 2993B94 (amended 2005) (current version at Tex. Fam. Code Ann. ' 156.401(a) (Vernon Supp. 2005)).[8] Thus, a material and substantial change of circumstances is only one of two alternative reasons warranting a modification of a child support order. A trial court may also modify an order after three years if the amount under the order differs by specified amounts from the guideline award. In the present case, the trial court rendered the divorce decree setting Amaka=s child support obligation at $180 dollars per month on July 2, 2001. It rendered the order modifying that amount on July 19, 2004, more than three years later. Given Amaka=s undisputed testimony she earned $13.50 per hour and worked forty hours per week, her annual wages for fifty-two weeks would be $28,080 and her monthly wages would be $2,340. There was no evidence Amaka had any deductions from her wages for union dues or expenses for health insurance for her child. See Tex. Fam. Code Ann. ' 154.062(d)(4), (5) (Vernon 2002).[9] Under the Office of the Attorney General Revised Tax Charts for 2003, gross monthly wages of $2,300 yielded a net monthly income of $1905.72. See Office of the Attorney General Revised Tax Charts for 2003, available at http://www.oag.state.tx.us/AG_Publications/pdfs/2003taxcharts.pdf. Under the statutory child support guidelines, if a person=s monthly net resources are $6,000 or less, the court shall presumptively apply a guideline of twenty percent of a person=s monthly net resources for a person having an obligation for one child. See Tex. Fam. Code Ann. ' 154.125 (Vernon 2002). Twenty percent of $1,905.72 is $381.14. Thus, the presumptive amount under the guidelinesCand the amount ordered by the trial courtCconstitutes a difference of more than $100 from the amount awarded in the divorce decree. See Tex. Fam. Code Ann. ' 156.401(a)(2) (Vernon Supp. 2005). In modifying Amaka=s child support obligation, the trial court followed the statutory requirements for modification and the relevant guidelines. The trial court did not abuse its discretion in modifying the child support order. Amaka also contends the grant of withholding of Ebele=s attorney=s fees is without support and is excessive. Under the Texas Family Code, the trial court has discretion to award reasonable attorney=s fees in a suit affecting the parent-child relationship. London v. London, 94 S.W.3d 139, 146 (Tex. App.CHouston [14th Dist.] 2002, no pet.); see Tex. Fam. Code Ann. ' 106.002(a) (Vernon Supp. 2005). The reasonableness of attorney=s fees is a question of fact to be determined by the trier of fact and must be supported by competent evidence. Reyna v. Reyna, 584 S.W.2d 926, 927 (Tex. Civ. App.CHouston [14th Dist.] 1979, no writ). A judgment awarding attorney=s fees may be supported solely by the attorney=s testimony. Peeples v. Peeples, 562 S.W.2d 503, 506 (Tex. Civ. App.CSan Antonio 1978, no writ) (citing Boysen v. Security Lumber Co., 531 S.W.2d 454, 457 (Tex. Civ. App.CHouston [14th Dist.] 1975, no writ)). Ebele=s attorney stated she charged Ebele $175 per hour and had expended 35 hours on the motion to modify for a total of $6,125, which included $110 for service and $16.48 for certified copy.[10] She also stated the entire amount was related to the modification, and the amount is one that is customarily charged in Harris County, and is reasonable and necessary in a case such as this one. Amaka did not controvert these statements, even when represented by counsel at the hearing on her motion for new trial. See Tull v. Tull, 159 S.W.3d 758, 761 (Tex. App.CDallas 2005, no pet.) (stating attorney=s uncontradicted testimony served as evidence on the reasonableness of his fees). We conclude the trial court did not abuse its discretion in awarding Ebele=s attorney $6,100 for legal services, with judgment awarded as child support against Amaka. Cf. Watler v. Watler, No. 01-01-01038-CV, 2003 WL 1091765, at *3B4 (Tex. App.CHouston [14th Dist.] Mar. 13, 2003, no pet.) (memorandum op.) (upholding trial court=s award of $16,202.50 in attorney=s fees under Texas Family Code section 106.002). We overrule Amaka=s second issue. III. Finding of Contempt In her third issue, Amaka contends there was no evidence she failed to return the child to the custodial parent, and therefore the trial court erred in holding her in contempt for violating the possession order. It is well established that a ruling on a motion for contempt is not appealable, but can be challenged only by an original proceeding. See In re B.A.C., 144 S.W.3d 8, 11B12 (Tex. App.CWaco 2004, no pet.) (citing cases). Accordingly, appellate courts do not have jurisdiction to review contempt proceedings on direct appeal. In re T.L.K., 90 S.W.3d 833, 841 (Tex. App.CSan Antonio 2002, no pet.). This rule applies even when a party appeals the contempt order along with a judgment that is appealable. In re A.C.J., 146 S.W.3d 323, 326 (Tex. App.CBeaumont 2004, no pet.) (citing In re M.E.G., 48 S.W.3d 204, 209 (Tex. App.CCorpus Christi 2000, no pet.)). We therefore dismiss Amaka=s third issue for lack of jurisdiction. See In re T.L.K., 90 S.W.3d at 841; see also Foster v. Foster, No. 14‑96‑01051‑CV, 1998 WL 42597, at *3 (Tex. App.CHouston [14th Dist.] Feb. 5, 1998, no pet.) (not designated for publication) (holding court had no jurisdiction to hear appeal regarding contempt proceedings, and dismissal is appropriate disposition of point of error over which court has no jurisdiction). Conclusion Having overruled Amaka=s first and second issues, we affirm the order of the trial court modifying Amaka=s child support obligation and awarding Ebele=s attorney $6,100 for legal services, with judgment awarded as child support against Amaka. Having concluded we have no jurisdiction of Amaka=s appeal from the order finding her in contempt for violating the possession order, we dismiss the appeal from this order.[11] /s/ John S. Anderson Justice Judgment rendered and Memorandum Opinion filed November 17, 2005. Panel consists of Chief Justice Hedges and Justices Yates and Anderson. [1] At the contempt hearing, the court also heard testimony directed at Amaka=s alleged violations of the child support order and subsequently entered an order holding Amaka in contempt for violating the support order. Although Amaka challenged this order in a motion for new trial, she does not renew this complaint on appeal. [2] Amaka=s petition is not part of the record. The record does, however, contain Ebele=s answer and first amended answer to the petition and Ebele=s counsel=s reference to the petition. [3] See Tex. Fam. Code Ann. ' 154.125 (Vernon 2002) (regarding application of guidelines to net resources of $6,000 or less). [4] The order was entered July 19, 2004. [5] On cross-examination, Ebele testified the trial court had ordered Amaka and him to keep restaurant receipts after the thirty-one times for which he was seeking enforcement. This testimony is consistent with Amaka=s testimony the trial court advised them on February 11 they should keep receipts. Ebele was not stating he had receipts for the thirty-one times at issue. [6] The court of appeals also concluded Taherzadeh=s argument regarding denial of the continuance failed on the merits. Taherzadeh v. Galeh-Assadi, 108 S.W.3d 927, 928 (Tex. App.CDallas 2003, pet. denied). [7] Amaka contends her case is more egregious than Moss v. Malone, 880 S.W.2d 45, 51 (Tex. App.CTyler 1994, writ denied). In Moss, however, the court of appeals addressed the following question: whether the trial court committed reversible error by granting counsel=s motion to withdraw one day before trial in violation of Texas Rule of Civil Procedure 10 and Texas Disciplinary Rule of Professional Conduct 1.15. Id. at 49. Thus, despite the trial court=s having continued the case after Moss=s attorney moved to withdraw, the appellate court focused on the withdrawal date in relation to the original date set for trial and was primarily concerned with counsel=s having filed a non-conforming motion to withdraw. See id. at 49B50. Although Attorney Sutton=s motion in the present case is not part of the record on appeal, Amaka=s questioning of Sutton assumes Sutton filed a motion to withdraw, and Amaka presented no evidence Sutton=s motion did not conform with the rules. [8] Subsection (b) provides: A support order may be modified only as to obligations accruing after the earlier of: (1) the date of service of citation; or (2) an appearance in the suit to modify. Tex. Fam. Code Ann. ' 156.401(b) (Vernon Supp. 2005). [9] In the divorce decree, the trial court found the child was a beneficiary of a health insurance plan provided through Ebele=s employment or membership in a union, trade association, or other organization. The court also ordered Amaka to pay Ebele the cost of insuring the child on Ebele=s health insurance plan. In his motion for enforcement, Ebele alleged fourteen months of arrearage for health insurance premiums. No evidence was introduced on this allegation at either the modification or the contempt hearing. [10] Ebele represents his attorney was not under oath when providing the court with this information, but that Amaka has waived that complaint (which she does not make on appeal) because she did not object in the trial court. As set forth in procedural background above, earlier in the hearing, the trial court administered the oath to Aall parties that expect[ed] to testify.@ [11] Ebele requests this court to impose sanctions on Amaka under Texas Rule of Appellate Procedure 45. Although this court would have benefitted by more complete briefing of Amaka=s three issues by both parties, this case does not present egregious circumstances warranting rule 45 sanctions. See Conseco Fin. Servicing Corp. v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 676 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (stating this court will impose sanctions Aonly in circumstances that are truly egregious@).