Opinion issued March 10, 2015
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00044-CV
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MICHAEL MCKINLEY, Appellant
V.
VICTORIA ESCOCHEA, Appellee
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Case No. 1999-51797
MEMORANDUM OPINION
Appellant Michael McKinley files this appeal challenging the sufficiency of
the evidence about the reasonableness of the $5,178.50 awarded in attorney’s fees
to appellee Victoria Escochea. We affirm.
BACKGROUND
In 1999, the trial court entered an Agreed Order of Parentage establishing
McKinley as the father of Escochea’s child, J.M.M. That order also provided that
the parties would enter an agreement about visitation.
In October 2012, McKinley filed a Petition to Modify Parent-Child
Relationship requesting that possession and access “be changed from mutual
agreement of the parties to visitation according to the standard possession order”
because the “parties are no longer able to mutually agree to visitation times.”
McKinley’s petition also requested that the court enter temporary orders and award
to him attorney’s fees. The court later entered agreed temporary orders.
In her answer, Escochea entered a general denial and likewise requested that
she be awarded attorney’s fees.
On July 24, 2013, the trial court signed an order stating that, on July 22,
2013, it “received the Notice of Nonsuit of Michael McKinley and ORDERS this
case McKinley’s claims dismissed without prejudice to Michael McKinley’s right
to refile it.”1
On August 14, 2013, Escochea filed a Motion to Enter Judgment for
Attorney’s Fees. On August 20, 2013, she filed a Motion to Reinstate Case on
Docket. That motion states that “this case was dismissed by an order signed on
1
The typed order contained the handwritten alteration striking through “this case”
and replacing with “McKinley’s claims.”
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July 24, 2013.” On September 20, 2013, the court signed an order stating that “the
order dismissing this case is set aside and that the case is reinstated as to Victoria
Escochea’s claims on the docket of this Court, to the same effect as if it had never
been dismissed.”
THE TRIAL COURT’S JUDGMENT
On September 20, 2013, the trial court also signed a “Judgment for
Attorney’s Fees” awarding Escochea $5,187.50 in attorney’s fees from McKinley.
That judgment recites that “[o]n July 22, 2013, the Court heard the case,” and that
both parties appeared with counsel and announced ready for trial. It also recites
that the “making of a record of testimony was waived by the parties with the
consent of the Court.”
ISSUE ON APPEAL
In a single issue, McKinley argues that “the Trial Court abused its discretion
in awarding attorney’s fees to Escochea when she failed to prove that the fees
requested were ‘reasonable.’”
ANALYSIS
McKinley asserts that “Escochea did not meet her burden of demonstrating
the ‘reasonableness’ of attorney’s fees requested and ultimately awarded by the
court.” Specifically, he contends, “[a]s the record clearly reflects, there was
neither credible evidence or evidence of any kind presented on the following issues
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of fact: (a) time spent by the attorney on the matter; (b) nature of the preparation;
(c) complexity of the case; (d) experience of the attorney retained by the Appellee;
and (d) the customary hourly rate for attorney’s in Harris County.” His brief
contains the following factual assertions:
“At the July 22, 2013 hearing, no evidence or testimony was
presented by Escochea regarding the amount of the fees
allegedly incurred or the ‘reasonableness’ of said fees.”
“[T]here was absolutely no documentary evidence to support
any award of attorney fees.”
“The only pleading(s) filed by the Appellee related to attorney’s
fees was Escochea’s November 21, 2012 answer requesting
attorney’s fees and the Motion to Enter Judgment for
Attorney’s fees—with no memoranda or affidavit in support
attached to justify awarding such exorbitant fees.”
Esochea has not filed an appellee’s brief in response.
The Texas Family Code authorizes the award of reasonable attorney’s fees
in suits affecting the parent-child relationship. TEX. FAM. CODE ANN. § 106.002(a)
(West 2014). The trial court had broad discretion in awarding of attorney’s fees.
Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996).
The trial court’s judgment contains a recitation that appellant McKinley was
present and represented by counsel at the July 22, 2013 hearing and that the parties
waived the making of a record. “Absent evidence to the contrary, we view
recitations contained in the trial court’s judgment and records as true.” In re
D.J.M., 114 S.W.3d 637, 639 (Tex. App.—Fort Worth, pet. denied). When the
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absence of a reporter’s record stems from the parties’ waiver of the right to have
the proceedings recorded, no sufficiency of the evidence complaints are preserved
for appellate review. Id. at 640–41; see also In re J.J.K., 340 S.W.3d 535, 538
(Tex. App.—Amarillo 2011, no pet.) (because appellant failed to arrange for
preparation of reporter’s record, appellant’s legal and factual sufficiency
challenges to the evidence presented nothing for appellate review). Accordingly,
we overrule McKinley’s sole issue.
CONCLUSION
We affirm the trial court’s judgment.
Sherry Radack
Chief Justice
Panel consists of Chief Justice Radack and Justices Brown and Lloyd.
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