in the Interest of K.T.P. and E.M.P., Children

• Court: Court of Appeals of Texas
• Decided: December 21, 2018
• Docket: 05-17-00922-CV
• Status: Published

Opinion

AFFIRM in part; REVERSE and REMAND in part; and Opinion Filed December 21, 2018

S Court of Appeals In The

Fifth District of Texas at Dallas No. 05-17-00922-CV

IN THE INTEREST OF K.T.P. AND E.M.P., CHILDREN

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-54261-2015

MEMORANDUM OPINION Before Justices Francis, Schenck, and Richter1 Opinion by Justice Francis Father appeals the trial court’s order granting Mother’s motion to decline jurisdiction due

to inconvenient forum. Father brings four issues generally challenging the sufficiency of the

evidence to support the order. We affirm the order in part and reverse and remand in part.

An agreed final decree of divorce was signed by Father, Mother, and the trial judge on

March 11, 2016. The decree was rendered in accordance with a mediated settlement agreement

between Mother and Father and it authorized Mother to relocate her residency to North Carolina

with the parties’ children, K.T.P. and E.M.P. Forty-eight days after the decree was signed, Father

filed a petition to modify the parent-child relationship seeking to prevent Mother and the children

from moving.

1 The Hon. Martin Richter, Justice, Assigned Mother answered and moved to dismiss the petition for failure to include an affidavit with

supporting facts as required by sections 156.006 and 156.102 of the Texas Family Code. Father

then filed an amended petition attaching an affidavit. In his amended petition, Father sought

temporary orders to restrict the residence of the children to Collin County, Dallas County, or Frisco

ISD, Texas. A hearing was conducted on May 25, 2016, at which both Mother and Father testified

and documentary evidence was introduced. Based on the evidence submitted and the arguments

made, the trial court denied Father’s request for temporary orders. Shortly thereafter, Mother and

the children moved to Mecklenburg County, North Carolina

Ten months later, in March 2017, Father filed a Motion for Discovery Control Plan and

Request for Trial Setting. In response, Mother filed a verified Motion to Decline Jurisdiction Due

to Inconvenient Forum under section 152.207 of the Texas Family Code. In the verified motion,

Mother addressed the various factors to be considered by the court when determining whether

Collin County was an inconvenient forum. Mother stated: (1) she and the children had been

residing in North Carolina for approximately ten months; (2) they intended to continue to reside

in North Carolina; (3) Mother had been a stay-at-home mom in Texas, but was currently employed

in North Carolina; (4) the children were enrolled in school and daycare in North Carolina; (5) they

had established relationships with primary care physicians in North Carolina; (6) they had many

family members living in North Carolina with whom they were close; (7) the distance between

Mother’s residence and the court in Collin County was about 1,050 miles; (8) travel to court in

Collin County would place a financial burden on Mother; (9) Father’s income was roughly seven

times greater than Mother’s; (10) Mother was the primary caretaker of the children; (11) Father

regularly traveled to North Carolina for work and to exercise possession of the children; (12) going

forward with the suit in North Carolina would pose no hardship on Father; (13) the facts and

witnesses, both lay and expert, were all outside of Texas with the exception of Father; and (14)

–2– since nothing had occurred with respect to Father’s modification petition in nearly a year, the

Collin County court would not be any more familiar with the relevant facts than a court in North

Carolina.

Father responded to the motion stating: (1) the children had resided in Texas for most of

their lives; (2) Mother and the children’s absence from the state and their distance from the Collin

County court was due to Mother’s choice to move to North Carolina; (3) the court could take

judicial notice of the divorce decree showing each party was in “the same financial circumstance

regarding their net worth” at the time of the divorce; (4) the only evidence in North Carolina was

evidence created since the case began; and (5) the Collin County court had the familiarity and

expertise necessary to handle the case. Both sides also presented briefing on relevant Texas case

law.

The trial court conducted a hearing and Father and counsel for both parties appeared. At

the hearing, each side discussed with the judge the statutory elements to be considered and the

facts supporting each element. Counsel for Father repeatedly referred to “the evidence” before the

court and objected to certain evidence discussed by counsel for Mother on the basis that it had not

been previously produced in discovery. Counsel did not, however, obtain a ruling on any of these

objections. At the end of the hearing the judge stated, “I think you are familiar with what the Court

is struggling with. I think I’ve tried to focus you on the factors that I find to be the biggest dispute.

So, I still feel like I need more information.” The judge then asked counsel to submit information

on the North Carolina court system and “anything else you think might be persuasive to me.” Both

lawyers stated they could get the information to the court by the following week.

Mother and Father submitted supplemental briefing as requested with Father’s focusing

solely on the issue of whether the matter could be handled expeditiously in North Carolina. Mother

compared the two jurisdictions’ abilities to handle the matter and also reviewed other relevant

–3– factors under section 152.207, outlining facts she believed weighed in favor of the Texas court

declining jurisdiction. Mother’s counsel requested attorney’s fees and submitted an affidavit in

support of that request.

Lake Norman Law Firm, a small firm located Mecklenburg County, North Carolina, filed

an amicus brief addressing the local rules and procedures for expediting certain custody matters

and the standards for modifying a custody order in North Carolina. On May 9, 2017, the trial court

signed an order granting the motion to decline jurisdiction stating North Carolina was the more

appropriate forum. The court also awarded mother $14,294.29 in attorney’s fees.

On May 30, Father filed a request for findings of fact and conclusions of law. One week

later, Father filed a motion for new trial arguing the evidence was legally and factually insufficient

to support the court’s order. Specifically, Father contended there was “no evidence whatsoever to

support the court’s orders since there was no evidentiary hearing held.” Father additionally

challenged the legal and factual sufficiency of the evidence to support the award of attorney’s fees.

The trial court signed findings of fact and conclusions of law on June 21. Father’s motion

for new trial was overruled by operation of law. Father then brought this appeal.

In his first issue, Father contends the trial court erred in granting Mother’s motion to

decline jurisdiction because no evidence was offered or admitted at the hearing that would support

the court’s decision. A court in this state that has jurisdiction to make a child custody

determination may decline to exercise its jurisdiction at any time if it determines it is an

inconvenient forum and a court of another state is a more appropriate forum. See TEX. FAM. CODE

ANN. § 152.207. The issue of inconvenient forum may be raised upon motion of a party, the

court’s own motion, or by request of another court. Id. Before determining whether it is an

inconvenient forum, the court must consider whether it is appropriate for a court of another state

–4– to exercise jurisdiction. Id. For this purpose, the court must allow the parties to submit information

and then consider all relevant factors, including:

(1) whether domestic violence has occurred and is likely to continue in the future and which state could best protect the parties and the child;

(2) the length of time the child has resided outside this state;

(3) the distance between the court in this state and the court in the state that would assume jurisdiction;

(4) the relative financial circumstances of the parties;

(5) any agreement of the parties as to which state should assume jurisdiction;

(6) the nature and location of the evidence required to resolve the pending litigation, including testimony of the child;

(7) the ability of the court of each state to decide the issue expeditiously and the procedures necessary to present the evidence; and

(8) the familiarity of the court of each state with the facts and issues in the pending litigation.

Id.

We review a trial court’s determination on the forum issue for an abuse of discretion. See

Barabarawi v. Rayyan, 406 S.W.3d 767, 774 (Tex. App.—Houston [14th Dist.] 2013, no pet.). In

family law cases, because the abuse of discretion standard of review overlaps with traditional

sufficiency of the evidence standards, legal and factual sufficiency are not independent grounds of

reversal. Lesem v. Mouradian, 445 S.W.3d 366, 373 (Tex. App.—Houston [1st Dist.] 2013, no

pet.).

Section 152.207 allows trial courts to make a forum determination based on submitted

information. See TEX. FAM. CODE ANN. § 152.207. Numerous cases have concluded it is not

necessary for the trial court to conduct an evidentiary hearing under section 152.207. See Lesem,

445 S.W.3d at 376. Despite this, Father contends the trial court erred in making its decision when

no evidence was offered or admitted at the hearing on Mother’s motion. Father argues that,

–5– although section 152.207 states the parties may “submit information,” the rules of evidence must

apply to any information submitted. We conclude it is unnecessary for us to address this argument,

because Father failed to preserve this issue for review.

To preserve an issue for appellate review, a party must: (1) present to the trial court a

timely request, objection, or motion; (2) state the specific grounds therefore; and (3) obtain a

ruling. TEX. R. APP. P. 33.1. An objection is considered timely when it is asserted at the earliest

opportunity. See Matbon, Inc. v. Gries, 288 S.W.3d 471, 490 (Tex. App.—Eastland 2009, no pet.).

Raising the objection for the first time in a motion for new trial does not satisfy the

contemporaneous objection rule if the complaint could have been urged earlier. Id.; In re D.W.,

No. 04-05-00927-CV, 2006 WL 2263907, at *1 (Tex. App.—San Antonio Aug. 9, 2006, no pet.).

It was clear at the hearing that the court was considering the information submitted in

Mother’s verified motion and Father’s response when making its forum determination. Indeed,

during the hearing, counsel for Father repeatedly referenced this information as being the evidence

before the court. Although Father’s counsel at one point stated that “argument isn’t evidence,” at

no point did he object to the court’s consideration of the facts set out in Mother’s verified motion

on the basis that her submitted information wasn’t proper evidence. Father’s only objection – on

which he did not obtain a ruling – was that the court should not consider Mother’s assertions

regarding the location of fact witnesses or her financial status because she had not responded to

discovery requests on those matters. When the court requested more information be submitted,

Father complied without raising any objections regarding the application of the rules of evidence.

Father said nothing until after the trial court ruled against him on the forum issue. We conclude

that, by not only failing to object, but also fully participating in the trial court’s consideration of

information that was neither offered nor admitted under the rules of evidence, Father has failed to

preserve the evidentiary challenge presented in his first issue. We resolve the issue against him.

–6– In his second issue, Father contends the information submitted to the trial court does not

support its decision to decline to exercise jurisdiction. With respect to matters committed to the

trial court’s discretion, we may not substitute our judgment for that of the trial court unless we

conclude there was only one conclusion the court could have reasonably reached. See In re

Meekins, 550 S.W.3d 729, 742 (Tex. App.—Houston [1st Dist.] 2018, no pet.). An abuse of

discretion does not exist if the trial court bases its decision on conflicting evidence and some

evidence supports its decision. Id.

The information before the court included the fact that the parties agreed Mother and the

children could move to North Carolina and they had been residing there for approximately ten

months at the time of the hearing. Father had an income between $400,000 and $500,000 per year

and regularly travelled to North Carolina. In comparison, Mother’s income was only $60,000 per

year and she was the primary caretaker of their young children. The distance between Mother and

the Texas court was sixteen hours by car or nearly three hours by plane. All witnesses, other than

Father, with knowledge of the children’s present circumstances were located in North Carolina.

Mecklenburg County had eight specialized family law courts and local rules which provided for

expeditious handling of cases such as this. Finally, the burden of proof and discovery deadlines

in Mecklenburg County were the same as or similar to those applied in Texas.

Based on this, and other similar information submitted by the parties, the trial court

concluded that a family court in North Carolina was in a better position to handle the modification

proceeding and would be equally familiar with the relevant facts of the case. The court further

concluded that continuing to litigate in Collin County would be an undue burden and financial

hardship for Mother, while it would be no hardship for Father to litigate the matter in North

–7– Father does not dispute the accuracy of the information recited above. He simply argues

certain factors should be weighed differently based on things such as the length of time the children

lived in Texas, the financial settlements received in the divorce, and the trial court’s familiarity

with the case. Father notes that some of the information submitted by Mother was not provided to

him in response to discovery requests. He did not, however, obtain a ruling from the trial court on

his discovery objections and he makes no argument on appeal regarding this issue. See TEX. R.

APP. P. 33.1 & 38.1(i). Although Father contends some of the submitted information must be

weighed in favor of the trial court retaining jurisdiction, we conclude the record contains ample

facts to support the court’s conclusion that North Carolina was the more convenient forum. See

In re Meekins, 550 S.W.3d at 743. We resolve Father’s second issue against him.

In his third issue, Father challenges the sufficiency of the evidence supporting all sixty-one

of the trial court’s findings of fact. Generally, Father makes the same argument he did in his first

issue – that there is insufficient evidence to support the trial court’s findings because the

information submitted to the court was neither offered nor admitted under the rules of evidence.

Again, we conclude Father failed to preserve this argument for review.

With respect to five of the trial court’s findings, however, Father makes the additional

argument that no information was submitted to support them and the matters addressed in those

findings were not before the court. The five individually challenged findings are:

7. [Father’s] Amended Petition to Modify sought to modify the designation of the person having the exclusive right to designate the primary residence of the children within a year of the Parties’ signing of a mediated settlement agreement.

8. [Father’s] request for temporary orders found in his Amended Petition would have the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the children under the Parties’ Agreed Final Decree of Divorce.

10. There has been no material and substantial change in circumstances since the Parties’ signing of the Mediated Settlement Agreement.

–8– 11. The modification requested by [Father] is/was not necessary because the children’s present environment or circumstances does not and would not significantly impair the children’s physical health or emotional development.

12. The Court’s denial of [Father’s] requested temporary orders was in the best interest of the children.

These findings pertain to the substance and merits of Father’s petition to modify. The

merits of the petition are irrelevant to the forum determination and any findings on the petition’s

merits are unnecessary to the court’s ruling. Unnecessary findings are not binding. See Hebert

Acquisitions, LLC v. Tremur Consulting Contractors, Inc., No. 03-09-00385-CV, 2011 WL

350466 , at *10 (Tex. App.—Austin Feb. 4, 2011, no pet.) (mem. op.); see also, Landerman v.

State Bar of Texas, 247 S.W.3d 426, 431 (Tex. App.—Dallas 2008, pet. denied). Because they

are irrelevant to the court’s decision and not binding on future proceedings, the unnecessary

findings, even if unsupported, are harmless and do not provide a basis for reversing the trial court’s

decision. See Cooke Cty. Tax Appraisal Dist. v. Teel, 129 S.W.3d 724, 731 (Tex. App.—Fort

Worth 2004, no pet.). We resolve Father’s third issue against him.

In his final issue, Father challenges the sufficiency of the evidence supporting the trial

court’s award of attorney’s fees to Mother. Although Mother requested attorney’s fees in the

prayer of her motion, she submitted no evidence to support the request until one week after the

hearing on the motion. The trial court signed the order awarding Mother fees four business days

after the affidavit was filed. Father objected to the fee award in his motion for new trial.

Mother argues Father waived his objections to the evidence supporting the fee award by

failing to timely raise the issue in the trial court. We disagree. Unlike Father’s challenge to the

evidence supporting the trial court’s forum determination, Father could not have objected to the

attorney’s fees affidavit at the hearing because the affidavit had not yet been submitted. The order

granting the fee request was signed very shortly after the affidavit was filed. As a practical matter,

Father’s first real opportunity to object to the affidavit was in his motion for new trial.

–9– Accordingly, we conclude Father’s objections to the affidavit were timely and preserved his

complaint for review. See Thomas v. Oldham, 895 S.W.2d 352, 358 (Tex. 1995).

Father asserts the affidavit submitted by Mother’s counsel is not sufficient to show the

fees awarded were reasonable and necessary. The affidavit states “[t]he attorneys, paralegals, and

legal assistants have the experience which justifies their hourly rates” and “the hourly rates are

reasonable, necessary and customary for fees charged in this family law matter.” The affidavit

does not, however, set out any of the hourly rates actually charged. The affidavit lists the factors

generally examined to determine the reasonableness and necessity of fees, but does apply those

factors to the facts of the case. Finally, Mother’s attorney states “[i]n my opinion, the reasonable

value of attorney’s fees, costs and expenses reasonably and necessarily incurred for defending such

an action as this by the client through April 27, 2017 were [sic] $22,444.00 in time and expenses.”

Nowhere does the affidavit discuss what work was performed in the case, how many hours were

spent, or by whom the work was performed. Although the affidavit states a copy of the billing

records was provided to counsel for Father, the record does not show that any billing records were

submitted to the trial court. In its findings of fact and conclusions of law, the trial court recites the

statements made in the affidavit and concludes “[g]ood cause exists to award $14,294.29 to

[Mother] as reasonable attorney’s fees and expenses.”

By referring to hourly rates, it is apparent Mother’s counsel is using the lodestar method

of calculating attorney’s fees. See Long v. Griffin, 442 S.W.3d 253, 255 (Tex. 2014). The Texas

Supreme Court has explained that, under this method, “generalities about tasks performed provide

insufficient information for the fact finder to meaningfully review whether the tasks and hours

were reasonable and necessary.” Id. Sufficient evidence includes, at a minimum, evidence of the

work performed, who performed it and at what hourly rate, when the work was performed, and

how much time the work required. Id. The affidavit submitted by Mother’s counsel failed to

–10– include any of this information. Accordingly, we conclude the evidence is insufficient to support

the attorney’s fees award to Mother. We resolve Father’s fourth issue in his favor.

We reverse the portion of the trial court’s order awarding attorney’s fees and expenses to

Mother and remand the case to the trial court for a redetermination on that issue. See El Apple I,

Ltd. v. Olivas, 370 S.W.3d 757, 765 (Tex. 2012). We affirm the trial court’s order in all other

respects.

/Molly Francis/ MOLLY FRANCIS JUSTICE

170922F.P05

–11– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

IN THE INTEREST OF K.T.P. AND On Appeal from the 429th Judicial District E.M.P., CHILDREN Court, Collin County, Texas Trial Court Cause No. 429-54261-2015. No. 05-17-00922-CV Opinion delivered by Justice Francis. Justices Schenck and Richter participating.

In accordance with this Court’s opinion of this date, the order of the trial court is AFFIRMED in part and REVERSED in part. We REVERSE that portion of the trial court's order awarding attorney's fees and expenses. In all other respects, the trial court's order is AFFIRMED. We REMAND this cause to the trial court for further proceedings consistent with this opinion.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered December 21, 2018.

–12–