In the Interest of B.N.L.-B.

375 S.W.3d 557, 2012 WL 3104593, 2012 Tex. App. LEXIS 5503
CourtCourt of Appeals of Texas
DecidedJuly 11, 2012
DocketNo. 05-09-00960-CV
StatusPublished
Cited by15 cases

This text of 375 S.W.3d 557 (In the Interest of B.N.L.-B.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In the Interest of B.N.L.-B., 375 S.W.3d 557, 2012 WL 3104593, 2012 Tex. App. LEXIS 5503 (Tex. Ct. App. 2012).

Opinion

OPINION

Opinion by

Justice MOSELEY.

Appellant Mark Aguirre appeals from a trial court’s judgment in a suit affecting the parent-child relationship (SAPCR) between Aguirre, appellee Colleen Logan, and Logan’s former partner, Deborah Bloom. Although the underlying litigation related to custody of B.N.L.-B., a child, the substance of the custody proceedings is not at issue in this appeal. The only issues before us involve the trial court’s [560]*560rulings relating to attorney’s fees.1

The trial court’s judgment awarded attorney’s fees to Logan and denied Aguirre’s own request for attorney’s fees. For the reasons set forth below, we affirm the trial court’s order that Logan recover attorney’s fees from Aguirre and Aguirre not recover fees from Logan. However, we reverse the order as to the amount of fees awarded. We remand this case to the trial court for further proceedings on the attorney’s fees issue. In- all other respects, the trial court’s Order in SAPCR is affirmed.

I. BACKGROUND

Logan, Bloom, and Aguirre entered into two agreements relevant to this appeal: the Donor Insemination Agreement (Donor Agreement) and the Agreement Regarding Visits between Mark Aguirre and [B.N.L.-B.], which was entered by a court in a Consent Order.

A. The agreements

In the Donor Agreement, Aguirre agreed to be a sperm donor for the artificial insemination of Bloom. Aguirre further agreed he would not seek a legal relationship with the child who would be conceived.

Paragraph 9 of the Donor Agreement stated:

Understanding that [Bloom and Logan] are proceeding with the artificial insemination procedure based upon [Aguirre]’s representations that he will not seek to establish a legal relationship with the Child(ren) except under the conditions set forth herein, if [Bloom and Logan] honor all the promises and commitments made herein, and further provided that no third party seeks on behalf of the Child(ren) to' hold [Aguirre] legally and or financially responsible for the Child(ren), but [Aguirre] seeks to establish a legal relationship with the Child(ren) anyway, [Aguirre] shall indemnify and hold [Bloom and Logan] harmless for all costs incurred in defending against such action, including, but not limited to, all costs, attorneys fees, ..., and all other costs whatsoever incurred by [Logan] and/or [Bloom] in defending such suit,.... ”

(Emphasis added.)

Bloom successfully conceived a child using Aguirre’s donation and Logan adopted the child, B.N.L.-B. After B.N.L.-B.’s birth, Logan, Bloom, and the child moved to Virginia. Aguirre, Logan, and Bloom then entered into a second agreement— the Agreement Regarding Visits between Mark Aguirre and [B.N.L.-B.] — which set forth a visitation schedule between Aguirre and B.N.L.-B. A Virginia court incorporated the visitation agreement into a “Consent Order.”2 Paragraph 10 of the Consent Order provides: “The parties agree that any costs, including but not limited to counsel fees, ..., incurred by a party in the successful enforcement of any of the agreements, covenants, or provisions of this Agreement through litigation or to [561]*561enforce compliance herewith shall be borne by the breaching party.”

B. The litigation

Bloom, Logan, and B.N.L.-B. subsequently moved to Dallas. One month after their move, Aguirre filed in Dallas a Notice of Registration of Foreign Child Custody Determination and a Petition for Clarification of Prior Order for Possession or Access in Suit Affecting the Parent-Child Relationship. In his petition, Aguirre requested the court to construe and clarify the terms of the Consent Order, which the Texas court did. In its “Temporary Orders,” the trial court ordered registration of the Consent Order and ordered a place for exchange of B.N.L.-B. for Aguirre’s visits permitted by the Consent Order.

Aguirre then filed his First Amended Petition for Enforcement of Order by Contempt against Logan, alleging Logan failed to abide by the terms of the Temporary Orders on six occasions. Aguirre requested the Court fine Logan and find her in contempt, order her to reimburse Aguirre for his travel expenses and attorney’s fees, and order her to surrender B.N.L.-B. for make-up periods. The record does not reflect any of this requested relief was granted.

Subsequently, Bloom and Logan separated and Bloom filed an Original Petition in a suit affecting the parent-child relationship (SAPCR) and Logan filed a counter-petition. A few months later, Aguirre intervened in the SAPCR, filing an Original Petition in Intervention and seeking a con-servatorship. He then filed his First Amended Petition seeking, among other things, attorney’s fees “[f]or services rendered in connection with the protection, the conservatorship, and support of the child,....”

Logan filed a counter-petition to Aguirre’s intervention, seeking appointment as sole managing conservator and arguing Aguirre lacked standing as a non-parent to request any form of conservator-ship.3 Logan also asserted she was entitled to indemnification from Aguirre and was entitled to recover attorney’s fees from him pursuant to the Donor Agreement, which she attached as an exhibit. Logan argued she complied with all the requirements of the agreement and was entitled to indemnification without regard to whether she was successful in defending the action in which Aguirre sought to establish a legal relationship with B.N.L.-B.

Aguirre opposed Logan’s request for indemnification, arguing the Donor Agreement was superseded by the Consent Order. He asserted the Consent Order “acts as a complete novation and agreed rescission” of the Donor Agreement. Aguirre reiterated his request that the trial court order Logan to pay his reasonable attorney’s fees.

C. Trial court’s rulings

Bloom, Logan, and Aguirre reached a settlement relating to all issues except attorney’s fees; they agreed the trial court would resolve the attorney’s fees issue by written submission. The parties subsequently submitted briefs and evidence supporting their requests for attorney’s fees.

The trial court’s final Order in SAPCR appointed Bloom and Logan as joint managing conservators, noted Aguirre’s right [562]*562to “possession of and access to” B.N.L.-B. as a result of the parties’ settlement agreement, and ordered Aguirre to pay Logan $62,200.86 in attorney’s fees. The order stated that all relief requested and not expressly granted was denied.

The trial court made three Findings of Fact pertinent to this appeal:

10[.] Colleen Logan incurred reasonable and necessary attorney’s fees in defending the lawsuit(s) filed by Mark Aguirre in the amount of $62,200.86[.]
11[.] Mark Aguirre has a duty pursuant to the Donor Agreement to indemnify Colleen Logan for all costs, including reasonable and necessary attorney’s fees, in defending the lawsuit(s) filed by Mr[.] Aguirref.]
12[.] Colleen Logan is awarded a judgment against Mark Aguirre in the amount of $62,200.86 to accrue interest in the annual rate of 6%, from the date this judgment is signed until paid[J

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Cite This Page — Counsel Stack

Bluebook (online)
375 S.W.3d 557, 2012 WL 3104593, 2012 Tex. App. LEXIS 5503, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-bnl-b-texapp-2012.