in the Interest of C.H.S., a Child

• Court: Court of Appeals of Texas
• Decided: December 20, 2017
• Docket: 07-17-00117-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-17-00117-CV

IN THE INTEREST OF C.H.S., A CHILD

On Appeal from the County Court at Law No. 1 Lubbock County, Texas Trial Court No. 2007-538,917, Honorable Mark Hocker, Presiding

December 20, 2017

MEMORANDUM OPINION Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

In this private parental-rights termination case, R.C.S. (the father) appeals the trial

court’s final order terminating his parent-child relationship with C.H.S., and appointing

appellee H.L.H. (the mother) sole managing conservator of C.H.S.1 We will modify the

final order to reduce the amount of attorney’s fees awarded the mother’s attorney and

1 As required to protect the child’s identity, we will refer to the child and the parents by initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2017); TEX. R. APP. P. 9.8(b). affirm that aspect of the final order as modified and we will affirm the trial court’s

compensatory award to the mother. Otherwise, we will dismiss the appeal as moot.

Background

The father and the mother married in 2005, C.H.S. was born in 2006, and the

couple divorced in 2008. The decree appointed them joint managing conservators with

the mother granted the exclusive right to designate the child’s primary residence. In 2016,

the mother moved to terminate the father’s parental rights to C.H.S.

Following the final hearing, the court rendered an order granting the requested

termination. It grounded its decision on Family Code predicate grounds (D) and (E) of

section 161.001(b)(1) and the finding that termination was in the best interest of C.H.S. 2

The order also awarded attorney’s fees of $19,468.96 to the mother’s attorney and the

mother was awarded $2,400 as compensation for time missed from work because of

continuances granted the father.

The father timely filed a notice of appeal and his appellate brief presents seven

issues challenging the final order. The mother filed a response brief. On November 28,

2017, the mother filed in this Court a suggestion of the father’s death. Attached was a

copy of the father’s obituary supported by counsel’s affidavit, confirming the father died

on November 6, 2017.

2See TEX. FAM. CODE ANN. § 161.001(b)(1)(D),(E) (predicate endangering grounds) & (2) (best interest) (West Supp. 2017).

2 Analysis

Issues Concerning Termination of the Father’s Parental Rights

We jointly address the father’s issues one through five which challenge the portion

of the trial court’s final order terminating his parent-child relationship with C.H.S.

Appellate Rule 7.1 provides:

If a party to a civil case dies after the trial court renders judgment but before the case has been finally disposed of on appeal, the appeal may be perfected, and the appellate court will proceed to adjudicate the appeal as if all parties were alive. The appellate court’s judgment will have the same force and effect as if rendered when all parties were living. The decedent party’s name may be used on all papers.

TEX. R. APP. P. 7.1(a)(1). See Tyson v. Tyson, No. 05-98-01811-CV, 2001 Tex. App.

LEXIS 578 (Tex. App.—Dallas Jan. 30, 2001, no pet.) (not designated for publication)

(noting Rule 7.1 does not dispense with the requirement of an existing actual controversy

and generally an appeal will be allowed to proceed on the death of a party only if the

judgment affects the parties’ property rights as opposed to purely personal rights). The

father’s issues one through five concern only his personal rights and not his property

rights. Because of the father’s death, a justiciable controversy concerning the

maintenance of his parent-child relationship with C.H.S. no longer exists. “A justiciable

controversy is one in which a real and substantial controversy exists involving a genuine

conflict of tangible interests and not merely a theoretical dispute.” Texas Dep’t of Pub.

Safety v. Moore, 985 S.W.2d 149, 153 (Tex. App.—Austin 1998, no pet.). Without a

genuine controversy, our opinion on the merits of issues one through five would be no

3 more than advisory. See Olson v. Comm’n for Lawyer Discipline, 901 S.W.2d 520, 522

(Tex. App.—El Paso 1995, no writ) (“When there has ceased to be a controversy between

the litigating parties due to events occurring after judgment has been rendered by the trial

court, the decision of an appellate court would be a mere academic exercise and the court

may not decide the appeal . . . . Stated another way, if a judgment cannot have a practical

effect on an existing controversy, the case is moot” (internal citation omitted)); see also

In re Marriage of Cain, 223 S.W.3d 503, 505 (Tex. App.—Amarillo 2006, no pet.) (death

of appellant rendered issues attacking dissolution of marriage moot); Meyer v. Texas

Dep’t of Human Svcs., No. B14-90-00749-CV, 1991 Tex. App. LEXIS 1710 (Tex. App.—

Houston [14th Dist.] July 11, 1991, writ denied) (not designated for publication) (same,

appeal of conservatorship ruling moot); Black v. Black, 673 S.W.2d 269 (Tex. App.—

Texarkana 1984, no writ) (because of death of appellant decision on appeal would have

no effect on custody of minor child). We therefore dismiss as moot the father’s issues

one through five.

The Father’s Remaining Two Issues

The father’s remaining two issues challenge the trial court’s award of a judgment

for attorney’s fees to the mother’s counsel and an award to the mother of lost wages for

work missed due to continuances sought by the father. Because these money awards

affect property rights the appeal will proceed as to those two issues pursuant to Rule

7.1(a)(1). See Casillas v. Cano, 79 S.W.3d 587, 592 (Tex. App.—Corpus Christi 2002,

order) (holding because case concerned appeal of a money judgment payable jointly and

severally by the deceased appellant it affected her property rights and was not moot but

could proceed under Rule 7.1(a)(1)).

4 Attorney’s Fees

In his sixth issue, the father argues the evidence was legally and factually

insufficient to support the award of $19,468.96 as attorney’s fees to the mother’s attorney.

In his brief the father states attorney’s fees and expenses of $9,130.67 were “proved up”

by “appropriate[]” testimony. We interpret this issue, therefore, as challenging the

sufficiency of the evidence supporting the $10,338.29 difference between the amount the

father concedes was proven and the amount awarded by the trial court.

We agree with the father that the record reflects a distinct difference between the

evidence submitted by the mother in support of the $9,130.67 and that offered as proof

of the remaining $10,338.29. The mother’s attorney testified, describing her experience

and the hourly billing rates she and her paralegal charged in the case. Her testimony

described in some detail the services rendered through the date of July 5, 2016,

concluding that the fees and expenses through that date totaled $9,130.67.

For reasons unclear from our review of the record, however, counsel’s testimony

did not describe or address the services rendered after July 5, 2016 through the

conclusion of trial. For that period of time, the evidence consisted only of a billing

summary listing the total billable hours, and total dollar billable amounts, accumulated in

the file by the mother’s attorney, her paralegal and another firm attorney. The record is

devoid of evidence describing the services rendered or otherwise demonstrating the

reasonableness of the fees charged after July 5, 2016. The billing summary reflects a

“grand total” billable amount of $19,468.96, the amount awarded by the trial court.

5 In a suit affecting the parent-child relationship, Family Code section 106.002(a)

grants a trial court broad discretion to render “judgment for reasonable attorney’s fees

and expenses . . . .” TEX. FAM. CODE ANN. § 106.002(a) (West 2014). Nonetheless, given

that state of the record before us, we must agree with the father that the court abused its

discretion by awarding the mother recovery for attorney’s fees without evidence of the

services rendered or the reasonableness of the fees sought for those services. See, e.g.,

In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.); In re E.B., No. 05-14-

00295-CV, 2015 Tex. App. LEXIS 10124, at *4 (Tex. App.—Dallas Sept. 29, 2015, no

pet.); see also Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014) (per curiam) (minimum

evidence for proof under lodestar method); Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex.

1998) (court abuses its discretion by ruling without supporting evidence).

Accordingly, the father’s sixth issue is sustained to the extent he challenges the

reasonableness of the $10,338.29 additional fees awarded. We will modify the judgment

to state an attorney fee award to the mother’s counsel of $9,130.67.

Compensation for the Mother’s Lost Wages

In his seventh issue, the father argues the trial court erred by awarding the mother

wages she lost for having missed work to attend hearings that were continued because

of the father’s unavailability.

The father moved to continue the final hearing when scheduled for January 2017.

The mother opposed the request but asked if the court granted the continuance she be

compensated for occasions when she cleared her calendar to attend court proceedings

that ultimately were continued due to the father’s unavailability. At the January 17, 2017

6 hearing on the father’s motion for continuance the trial court ordered the final hearing

continued but stated at the final hearing it expected to receive testimony of the amount of

lost wages the mother sought. At the final hearing, the mother testified of five days, or

parts of those days, she missed from work due to the father’s unavailability for court. The

trial court awarded the mother $2,400 based on her evidence of lost wages. The father

made no objection to the procedure or amount of the award. On appeal he does not

challenge the sufficiency of the mother’s proof. Rather he contends the court was not

authorized to make the award for lost wages. Because the father’s appellate complaint

was not presented to the trial court at a time when it could have affected its order, the

complaint presents nothing for our review. TEX. R. APP. P. 33.1(a).

The father’s seventh issue is overruled.

Conclusion

We modify the final order to state the amount of attorney’s fees awarded the

mother’s attorney is $9,130.67 rather than $19,468.96, and affirm that aspect of the order

as modified. See TEX. R. APP. P. 43.2(b). We affirm the trial court’s award of $2,400 lost

wages to the mother. See TEX. R. APP. P. 43.2(a). Otherwise, we dismiss the appeal as

moot.

James T. Campbell Justice