Opinions, December 8, 2015: Getting Invoices Into the Record

The First District Court of Appeals released its memorandum opinion this morning in Young v. Terral, No. 01-14-00591-CV. It is an unfortunate reminder to attorneys to make sure their invoices are admitted into the record if they want their fee award to survive on appeal.

Jerrod Young (“Father”) filed suit against Kathryn Terral (“Mother”) to establish paternity, conservatorship, and possession of their child. Father appeals the awards of retroactive support, compensation for pre- and post-natal expenses, and attorney’s fees. The Court of Appeals reversed and remanded on the attorney’s fees issue, but affirmed the remainder of the judgment.

Mother and Father lived together when their daughter was born in 2009. They separated in 2010 and initially agreed to an informal child support arrangement in which Father would pay for Mother’s car insurance and the child’s healthcare expenses which totaled about $200.00/mo. In 2012, Mother asked for formal child support and Father signed paperwork from the AG’s office to that effect. Father stopped paying for Mother’s car insurance before the formal child support began. Mother claimed she did have notice that Father stopped paying the insurance and that her car was nearly repossessed. This led to “an incident” in which Mother “took the child from Young by force and prevented him from seeing her for six weeks.” The Court of Appeals did not elaborate further.

Consequently, Father filed to establish for paternity, conservatorship, possession, child support, and attorney’s fees. Mother countered, seeking conservatorship, a restraining order, retro support, and fees. Under an agreed TO, Father paid $300/mo in child support, including withholdings from earnings that would be credited against the child support obligation.

After a bench trial, the trial court ordered Father to pay child support of $679/mo and $5,072 in retroactive support, and $4,375 which represented half of the COBRA insurance premiums as pre- and post-natal healthcare expenses.

Father’s three issues on appeal were: 1) the trial court erred in the amount of retro CS because it deviated from the Texas Family Code; 2) the trial court had insufficient evidence to support an award of pre- and post-natal expenses because the evidence was improperly presented and was an unfair surprise; and 3) there was insufficient evidence to support the award of attorney’s fees.

On the issue of retroactive support, Father alleged the trial court failed to consider the $77 in withholding from his wages that he had been paying pursuant to TO. The Court of Appeals found that the court had sufficient evidence to make the award because it was far less than the amount it could have awarded.

On the issue of natal expenses, the court of appeals found Mother’s mother’s testimony and the handwritten ledger she offered were sufficient evidence of the medical expenses. Father did not raise the issue of unfair surprise at trial.

On the issue of fees, Mother’s testimony on the reasonableness of the fees requested was limited to the following:

Q: Are you asking the Court that Mr. Young pay your attorney’s fees today?
A: Yes.
Q: And did you agree to pay me a reasonable rate?
A: Yes.

Also, at the end of trial, Mother’s counsel asserted her fees were $9,272.

The Court of Appeals found this was insufficient evidence of the fee award and could be brought for the first time on appeal. Mother asserted that the full invoices and contract for employment were disclosed in discovery but admitted that they were not part of the record. Because there was “some evidence” of the fees awarded, the Court of Appeals remanded to trial court for further proceedings.

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