No Evidence Attorney's Fees Reasonable

Attorney's fees can be awarded by the court in many proceedings under the Texas Family Code. One of them is a suit for modification of the parent-child relationship. But in any of these proceedings, there must be some evidence that the attorney's fees are reasonable.

In In the Interest of A.A.L., No. 12-11-00161-CV (Tex. App. - Tyler May 23, 2012, n.p.h.), the only evidence of attorney's fees presented at trial was:

ATTORNEY: I only need to put her on to introduce some pictures and attorney's fees. I can tell you attorney's fees -

THE COURT: How much?

ATTORNEY: $42,525.00

THE COURT: $42,525.00, okay. Anything else?

The Tyler Court of Appeals found this evidence insufficient to show that the attorney's fees were reasonable.

The Court noted the following factors to be considered when evaluating the amount of reasonable attorney's fees:

(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 experience, reputation, and ability of the lawyer performing the services; and

(8) whether the fee is fixed or contingent.

The Court recognized that a trial court need not receive evidence on each of these factors. A trial court could also consider “the entire record, the evidence presented on reasonableness, the common knowledge of the participants as lawyers and judges, and the relative success of the parties.” But the lawyer here

did not testify, nor did he present an affidavit, itemized statements, exhibits, or any other offer of proof, about the reasonableness of his fees. The record is devoid of evidence relating to his experience, the time and labor involved, the difficulty of the task, his hourly rates, the rates customarily charged for similar services, or his fee agreement.

This simply was not enough, held the Court, and reversed the attorney's fee award. The Court remanded the case for a new trial on attorney's fees.

Attorney's Fees Award an Abuse of Discretion

In an unusual ruling, the Texas Supreme Court reversed an award of $47,178.50 in attorney's fees against a grandmother who unsuccessfully sought custody of her granddaughter.  In In re: Moore, the Court held that although the grandmother ultimately had been unsuccessful in gaining custody of her granddaughter, she had "at all times subjected herself and [the child] to the jurisdiction of the trial courts, sought their decisions, and followed their rulings."

Shortly after the child's birth in December 2004, the grandmother petitioned the district court for custody of her grandchild.  The trial court ordered that the grandmother have temporary custody.  In May 2005, the child's mother asked the court of appeals to order the grandmother's suit dismissed because the grandmother had no standing to bring the suit under any provision of the Texas Family Code.  The court of appeals granted the mother's request in June 2005, and the suit was dismissed.

But one of the bases for standing is that a person has had "actual care, control, and possession of the child for at least six months."  More than six months had passed since the grandmother obtained temporary custody of her grandchild in December 2004, so the grandmother filed a new petition for custody in which she set out the new basis for standing.

Again the child's mother asked the court of appeals to order the lawsuit dismissed.  The court of appeals ordered dismissal and that the grandmother pay the mother's attorney's fees as a sanction because of the grandmother's "intransigence and disregard for the previous judgment of this Court."

The Texas Supreme Court disagreed with that ruling.  The Court noted that the second petition for custody was based on a different ground for standing than the first petition so that the grandmother had not disregarded the court of appeals judgment by filing the second petition.  The Texas Supreme Court held that the court of appeals had abused its discretion when it ordered payment of these attorney's fees.  It ordered the court of appeals to vacate that award.