Opinions, Dec. 1, 2016: Don’t Forget to Prove Up Appellate Fees at Trial!

Last Thursday (it’s been a busy few days), the First District Court of Appeals released its memorandum opinion in Davenport v. Davenport, No. 01-15-01031-CV, in which the Court of Appeals largely affirmed the trial court’s modification order after a jury trial. However, the case provides an important reminder about putting on evidence in support of appellate fees at trial–or risk losing a $20,000 award.

Erica and Chris had a child in 2004 and divorced in 2005. A modification order was entered in 2012. In the 2012 order, the parents were named JMC with neither appointed as primary. Instead, they had alternating weeks of possession during the school year and alternating two week periods during the summer. Both parents had the independent right to make medical, psychological, and educational decisions for the child after consultation with the other parent. Neither parent was ordered to pay child support but Chris was ordered to provide the child’s health insurance.

In 2015, Erica filed a modification petition in which she requested SMC or, in the alternative, JMC with primary; to make educational and legal decisions for the child and to consent to medical, dental, psychiatric, psychological and surgical treatment involving invasive procedures. She also requested Chris have a SPO and that he pay monthly child support. In his counter-petition, Chris sought JMC with him as primary, to make educational and legal decisions concerning the child, to consent to medical, dental, psychiatric, psychological, and surgical treatment involving invasive procedures, and that Erica be ordered to pay child support. But as to possession, Chris requested that if Erica was appointed SMC or JMC, the 2012 order remain in effect but if he was appointed SMC or JMC, then Erica be granted a SPO. Both parties requested attorney’s fees and the jury trial began in July 2015.

The jury found that Erica should be appointed JMC with primary (with a geographical restriction), that Chris should pay Erica’s attorney’s fees, and that $35,000 was a reasonable fee for trial representation and $100,000 was a reasonable fee for representation through the appeal (!!!).

On August 17, 2015, the trial court ordered Erica had primary and the right to make legal and educational decisions for the child; Erica and Chris each had the right to consent to medical, dental, psychological, and psychiatric treatment, as well as surgical procedures, for K.D. after conferring with the other parent; the P&A would remain as it was under the 2012 order with a minor change to the summer possession; Chris was ordered to pay $1,000/mo in child support and provide medical and dental insurance; and Chris was ordered to pay $35,000 in fees to Erica within 90 days, and $100,000 in fees on the date Chris filed a notice of appeal.

On August 28, Chris filed a motion to disregard the jury’s findings, arguing that some of the findings were not supported by evidence. Erica filed a request for FF/CL on September 3, 2015, and a notice of past due FF/CL on September 25.

The trial court amended its August 17 ruling, ordering Chris to pay $1,496/mo in child support and reducing the fees to $26,000 in trial court and $20,000 in appellate fees. P&A stayed the same. The final order was signed on November 17, 2015. Erica filed a notice of appeal on December 9, 2015 and Chris filed his on February 2, 2016 (and evidently did not pay the $20,000 award when he appealed).

In her first issue, Erica contended the trial court erred in failing to enter a SPO and by maintaining the 50/50 schedule. Specifically, she argued that Tex. Fam. Code § 153.252 imposes a rebuttable presumption that required the trial court to enter a SPO. The Court of Appeals held, on the contrary, that the rebuttable presumption of § 153.252 is a guide to the courts, as stated in § 153.251.

Erica also argued (apparently under her first issue) that the trial court erred by not filing FF/CL and that the trial court’s failure to state the reasons it deviated from the SPO constituted a presumed harm. The Court of Appeals found that the trial court is “only required to make findings on ultimate controlling issues, not on mere evidentiary issues.” Here, the trial court’s order included a finding of fact that it was in the best interest of the child to divide the time equally. This, the COA held, “expressly addressed the ultimate or controlling fact essential to the claim and necessary to the judgment. Any other findings would be merely evidentiary.” Further, the COA found there was sufficient evidence which supported the jury’s verdict and the trial court’s decision to maintain the 50/50 schedule.

In her second issue, Erica argued the trial court erred in granting both parties the right to make medical and psychological decisions for the child because, she claimed, the evidence supported granting her the exclusive right to make these decisions. Erica pointed to evidence in support of her position (she and Chris do not get along, Chris’s new wife does not like her, the child does not trust adults, Chris’s greater wealth allowed him to harass Erica with litigation, and Chris hired a private investigator to follow Erica). The Court of Appeals pointed to other evidence (that Chris took the child to therapy sessions during his possession that he paid for, that the therapist testified that she preferred to have weekly sessions with the child, but Erica refused to cooperate during her possession). This, the COA concluded, was sufficient evidence to support the trial court’s decision it was in the best interest of the child to grant both parents the independent right to consent to medical and psychological treatment for the child after consultation. The issue was overruled.

In her third issue, Erica argued the trial court erred in reducing the fee awards. A jury’s findings regarding fees are not binding on a trial court but merely advisory. The COA of appeals affirmed the $26,000 award because there was evidence presented of Erica’s attorney’s fees prior to and during trial.

In her fourth issue, Erica argued the Court of Appeals lacked jurisdiction over Chris’s cross-appeal challenging the fee award to Erica because Chris failed to pay the fees when he filed his notice of appeal. The COA held it was not aware of any authority “for the proposition that the payment of attorney’s fees is a prerequisite to a party’s right to appeal” or that failure to pay the fees could deprive the Court of jurisdiction. The issue was overruled.

But as to the appellate fee award (which was also Chris’s first issue in his cross-appeal), the COA found that no evidence was presented at all at trial of reasonable and necessary attorney’s fees and that the trial court erred in granting any appellate fee award. Thus the Court of Appeals modified the trial court’s order to strike the appellate fees and affirmed the trial court’s judgment as modified. Because Chris’s first cross-issue was sustained, it did not need to address his remaining cross-issues.

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