in the Interest of K.J.C.H. and S.K.V.S.

• Court: Court of Appeals of Texas
• Decided: October 3, 2002
• Docket: 11-02-00057-CV
• Status: Published

Opinion

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                                        Opinion

In the Interest of K.J.C.H. and S.K.V.S.

No. 11-02-00057-CV --  Appeal from Erath County

This appeal arises from a custody battle between ex-spouses regarding the conservatorship of their minor grandchildren, K.J.C.H. and S.K.V.S.  Appellant is the maternal grandfather of the children.  Appellee is the maternal grandmother of the children.  Appellee initiated proceedings to terminate the parental rights of the children=s parents.  Appellant intervened in the termination proceedings for the purpose of seeking to be appointed joint managing conservator of the children along with appellee.  After severing appellant=s conservatorship claim from the termination proceedings, the trial court entered an order terminating the parent-child relationship between the children and their parents.  The issue of conservatorship between appellant and appellee was subsequently tried to a jury under a separate cause number.  The trial court entered an order appointing appellee as the sole managing conservator based on the jury=s verdict.  We affirm.

Appellant raises four issues on appeal.  His first and second issues attack the trial court=s award of attorney=s fees to appellee=s attorneys in the amount of $17,500.  TEX. FAM. CODE ANN. ' 106.002(a) (Vernon 2002) provides that a trial court may order a party to pay reasonable attorney=s fees in a suit affecting the parent-child relationship.   The court=s charge included a question seeking a determination by the jury of the amount of the attorney=s fees incurred by appellee in the conservatorship proceedings.   The jury found the amount of appellee=s attorney=s fees to be $17,500.  Appellant attacks the factual sufficiency of the evidence supporting the jury=s award in his first issue.  In order to determine if the evidence is factually sufficient, we must review all of the evidence and determine whether the challenged finding is so against the great weight and preponderance of the evidence as to be manifestly unjust.  Pool v. Ford Motor Company, 715 S.W.2d 629 (Tex.1986); In re King's Estate, 244 S.W.2d 660 (Tex.1951).  Factors to be considered in determining the amount of attorney=s fees to be awarded include: (1) the time and labor required, novelty and difficulty of the question presented, and the skill required; (2) the likelihood that acceptance of employment precluded other employment; (3) the fee customarily charged for similar services; (4) the amount involved and the results obtained; (5) the time limitations imposed by the client or the circumstances; (6) the nature and length of the professional relationship with the client; (7) the expertise, reputation, and ability of the lawyer performing the services; and (8) whether the fee is fixed or contingent.  Arthur Andersen & Co. v. Perry Equipment Corporation, 945 S.W.2d 812, 818 (Tex.1997).  While these are factors that may be considered, the trial court is not required to receive evidence on each of the factors.  See Hagedorn v. Tisdale, 73 S.W.3d 341, 353 (Tex.App. B Amarillo 2002, no pet=n). 

The testimony regarding attorney=s fees can be summarized as follows: (1) appellee=s attorneys have been representing her for several years in various matters involving the children, including two paternity actions, the termination proceedings, and the conservatorship proceedings; (2) the conservatorship proceedings arose from the termination proceedings; (3) a great deal of work has been required in the conservatorship proceedings; (4) in the trials of the termination proceedings and the conservatorship proceedings, approximately $35,000 in attorney=s fees were incurred; (5) one of the attorney=s hourly rate is $125 and the other attorney=s hourly rate is $175; and (6) a reasonable fee for the conservatorship trial would be $17,500.  The specific testimony regarding the fee of $17,500 is as follows: 

Q:  Do you have an opinion, based on the time that was presented in preparation for the present trial, the one that=s being tried today, and the expertise involved in preparing for that case properly, and the B with your knowledge of the details of the work that has been involved, do you have an opinion as to what would be a reasonable attorney=s fee for this particular trial in Erath County, Texas?

A:  For this particular trial B huh B in Erath County, Texas, I would say B huh B $17,500 would certainly be reasonable.  Huh B I=ve tried other contested cases, some not to juries, especially involving custody, and that is well within the amount that normally gets charged and is normal B a normal, reasonable fee.

Appellant has not cited any other evidence in the record regarding attorney=s fees. 

Evidence of attorney=s fees is typically expressed by the number of hours worked and the hourly rate.  See Hagedorn v. Tisdale, supra at 353.  However, there is no rigid requirement that both of these elements must be in evidence for such a determination to be made.  See Hagedorn v. Tisdale, supra at 353.   While there is no testimony from appellee=s attorneys regarding the number of hours they worked on the conservatorship proceedings, there is testimony regarding the hourly fee charged by each of her attorneys.  There is also evidence that the amount of attorney=s fees sought is customarily charged in the locality for similar legal services.   We find that the evidence supporting the award of attorney=s fees is factually sufficient.  Appellant=s first issue is overruled.         Appellant complains in his second issue that the award of attorney=s fees was erroneously based upon evidence of unsegregated fees.  A party seeking the recovery of attorney=s fees carries the burden of segregating them among various claims, parties, or actions.  Stewart Title Guaranty Company v. Sterling, 822 S.W.2d 1, 10-11 (Tex.1991).  Appellee=s attorneys offered testimony about all of the work they had performed for appellee over the years in connection with her grandchildren.  However, the testimony regarding the claim of $17,500 in attorney=s fees was specifically limited to the conservatorship action and, therefore, complied with the duty to segregate attorney=s fees.   Appellant=s second issue is overruled.

Appellant argues in his third issue that the trial court erred in overruling his application for the issuance of a bench warrant to obtain the presence of an incarcerated witness at trial.  The object of the application was the children=s natural mother whose parental rights had previously been terminated.  The motion stated as follows regarding the need for the witness=s testimony: AThe testimony of this witness is material to this action and the ends of justice require the attendance of said witness, in that, [witness=s name], is mother of the children the subject of this suit.@  The trial court denied the motion without a hearing.  In denying the motion, the trial court made the following notation:  AIntervenor=s motion denied.  Intervenor=s [attorney] advised to take deposition of witness.@ 

Most of the civil cases which have addressed efforts to secure the presence of incarcerated individuals at trial are matters wherein the incarcerated individual is a party to the suit.  See Pedraza v. Crossroads Security Systems, 960 S.W.2d 339 (Tex.App. B Corpus Christi 1997, no pet=n).  These cases obviously involve greater due process concerns given the fact that the incarcerated person is a party to the proceedings.  The trial court=s ruling in these cases is subject to an abuse of discretion review.  See Pedraza v. Crossroads Security Systems, supra at 342.  Our review of the record does not indicate that the trial court abused its discretion in denying appellant=s application.  The trial court=s notation on the order denying the motion advised appellant of a method of securing the witness=s testimony.  A civil litigant has a duty to obtain a witness=s testimony by alternative means in situations wherein the witness=s appearance at trial cannot be secured.  See TEX.R.CIV.P. 252.  Appellant=s third issue is overruled.

Appellant argues in his fourth issue that the trial court erred in denying his application for a psychological evaluation to be conducted on appellee.  The procedures for obtaining a  mental examination of an opposing party in a child custody case are set out in TEX.R.CIV.P. 204.1 and 204.4.  The trial court=s ruling on the motion is subject to an abuse of discretion standard of review.  See In re Doe, 22 S.W.3d 601 (Tex.App. - Austin 2000, no pet=n).  Appellee filed a response to the motion alleging that it was time-barred under TEX.R.CIV.P. 190.3.  The trial court considered appellant=s motion during a pretrial hearing.  Apparently, no record of the hearing was made.  In the absence of a record from the hearing on the motion, we are unable to find that the trial court abused its discretion in overruling appellant=s motion.  Appellant=s fourth issue is overruled.

The judgment of the trial court is affirmed.

W. G. ARNOT, III

CHIEF JUSTICE

October 3, 2002

Do not publish.  See TEX.R.APP.P. 47.3(b).

Panel consists of: Arnot, C.J., and

Wright, J., and McCall, J.