ACCEPTED
011400591
FIRST COURT OF APPEALS
HOUSTON, TEXAS
3/2/2015 11:39:53 PM
CHRISTOPHER PRINE
NO. 01-14-00591-CV CLERK
FILED IN
IN THE FIRST COURT OF APPEALS 1st COURT OF APPEALS
HOUSTON, TEXAS
HOUSTON, TEXAS 3/2/2015 11:39:53 PM
CHRISTOPHER A. PRINE
Clerk
JARROD DALE YOUNG, APPELLANT
V.
KATHRYN RENEE TERRAL, APPELLEE
Appeal from the 247th District Court
Harris County, Texas
REPLY BRIEF OF APPELLANT
Melissa E. Loveless
State Bar No. 24044326
Law Office of Melissa E. Loveless
9595 Six Pines Drive, Ste. 8210
The Woodlands, Texas 77380
Tel: (281) 973-8763
Fax: (832) 415-0123
melissa@lovelesslaw.com
State Bar Number 24044326
Attorney for Appellant-Petitioner, Jarrod Dale Young
IDENTITY OF PARTIES AND COUNSEL
APPELLANT/PETITIONER:
Jarrod Dale Young
COUNSEL FOR APPELLANT (TRIAL & APPEAL):
Melissa E. Loveless
Law office of Melissa E. Loveless
9595 Six Pines Drive, Suite 8210
The Woodlands, Texas 77380
APPELLEE/RESPONDENT:
Kathryn Renee Terral
COUNSEL FOR APPELLEE (TRIAL & APPEAL):
Terisa Taylor
The Law Office of Terisa Taylor, P.C.
917 Franklin Street, Suite 510
Houston, Texas 77002
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TABLE OF CONTENTS
Page No.
IDENTITY OF PARTIES AND COUNSEL.................................................................................I
INDEX OF AUTHORITIES.................................................................................................. III
ARGUMENT AND AUTHORITIES..........................................................................................1
I. THE TRIAL COURT ERRED IN AWARDING THE AMOUNT OF RETROACTIVE CHILD
SUPPORT BY ADOPTING APPELLEE COUNSEL'S MATH
II. THE TRIAL ABUSED ITS DISCRETION IN AWARDING PRENATAL AND POSTNATAL
EXPENSES WHEN (1) THERE WAS NOT A “PROPER SHOWING” AS PER TEX. FAM.
CODE §160.636(G) AND (2) IT UNFAIR SURPRISE
III. THE TRIAL COURT ABUSED ITS DISCRETION IN AWARDING ATTORNEY'S FEES TO
APPELLEE'S TRIAL COUNSEL WHEN NO EVIDENCE WAS PRESENTED ON FEES AND
FAILED TO DESIGNATE HERSELF AS AN EXPERT
CONCLUSION AND PRAYER...............................................................................................9
CERTIFICATE OF SERVICE.................................................................................................10
ii
INDEX OF AUTHORITIES
CASES: PAGE NO.
Charette v. Fitzgerald, 213 S.W.3d 505, 514–15
(Tex. App.-Houston [14th Dist.] 2006, no pet.................................................8
Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010)...................................6, 7
Hanson v. Lecky,
754 S.W.2d 292, 298 (Tex.App.-Tyler 1988, writ denied)................................6
Hirczy v. Hirczy,
838 S.W.2d 783, 786 (Tex.App.-Corpus Christi, 1992)..................................7
London v. London, 94 S.W.3d 139, 147–49
(Tex. App.-Houston [14th Dist.] 2002, no pet.); .............................................8
In the Interest of Q.D.T., Jr., A Child,
Case No. 14-09-00696-CV, 6 (Tx.Ct. App. 14, Nov. 4, 2010)............1, 5, 8, 9
Woollett v. Matyastik, 23 S.W.3d 48, 52–53, (Tex.App. 2000)........................8
STATUTES:
PAGE NO.
Tex. Civ. Prac. & Rem. Code §74.351(b)........................................................8
Tex. Fam. Code Ann. § 160.636(g)(h)……………………………………1, 4
Tex. R. App. Proc. 33.1(d)……………………………………......…6, 7, 8, 9
Tex.R.Civ.P. 324(a),(b)……………………………….......................………9
iii
TO THE HONORABLE FIRST COURT OF APPEALS:
ARGUMENT AND AUTHORITIES
I. The trial court erred in awarding the amount of retroactive child
support by adopting Appellee Counsel's Math
While there is broad discretion in family law matters, TEX. FAM. CODE §
160.636(h) is a “shall” statute which controls the trial court in ordering retroactive
child support. In the Interest of Q.D.T., Jr., A Child, Case No. 14-09-00696-CV, 6
(Tx.Ct. App. 14, Nov. 4, 2010). It is Appellant's contention that the trial did
attempt to order the retroactive child support amount after considering the factors
provided by the Texas Family Code.
It is clear by the trial court's award of the very specific dollar amount of
retroactive child support in the amount of $5,027.00 that the court adopted
Appellee's number. (1 RR 63, 11-20; RR 125, 5-7). It can be deduced that the trial
court was awarding Appellee the difference in child support for the 11 month
period from the time Appellant began a new job making more money than he was
ordered to originally pay in the temporary orders in the amount of $300 per month.
(1 RR 63, 7-9). Appellee attempts to avoid this point in her Reply Brief by citing
different factors the trial court could have taken into consideration in awarding
retroactive child support. By setting forth these factors in detail, Appellee attempts
to confuse the focus of the error, which is that the trial court adopted the exact
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number that trial counsel for Appellee provided to the court for retroactive child
support calculation. The trial court failed to review the math that totaled that
amount. The record reflects that the line of questioning to Appellant by Appellee's
trial counsel consisted of the following:
A. I'm not sure where you're getting --
Q. What you should have been paying and what you've been paying?
(1 RR 63, 7-9)
Further, Appellee specifically pled for retroactive child support in her
Counter-Petition in Suit Affecting Parent-Child Relationship as she reiterates in her
Brief as follows: “Specifically, Appellee requested that 'any order of child support
be made retroactive to the earlier time of service upon JARROD DALE YOUNG
or his appearance in this matter. (CR 25).'” Since Appellant was the
petitioner/counter-respondent in this case, Appellant appeared on the date the
counter-petition was served on August 20, 2012. (CR 23). As per the Agreed
Temporary Orders, Appellant was ordered to begin paying child support on
September 1, 2012. (CR 40). Appellee did not request any other retroactive child
support in her pleadings or during the course of the trial.
Appellee asserts that error was not preserved on this issue of $223.00 being
ordered versus $300.00 per month being ordered; however, there was not a need to
controvert Appellant's testimony as multiple pieces of evidence were offered and
admitted into the record by Appellee's counsel after the testimony that Appellee
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cites as uncontroverted. All other evidence specifically provided the correct
amount of $300.00 per month as being ordered and as being paid. (1 RR 100, 5-9).
Further, the amounts paid by Appellant were confirmed by Appellee's testimony
regarding such payments. (RR 100, 5-9). Specifically, RX - 4 the Harris County
Pay History was introduced by trial counsel for Appellee during Appellee's direct
examination. (2 RR 31-34). Additionally, all the evidence admitted supported
Appellant's testimony that he was paying approximately $70 per week. (1 RR 62,
4-7). The Agreed Temporary Orders, signed by both parties and counsel, were also
admitted into evidence subsequent to the specific testimony which Appellee asserts
was not controverted. The Agreed Temporary Orders ordered Appellant to pay
$300 per month beginning September 1, 2012. (2 RR 18).
Appellant recognizes that a trial court has authority to award retroactive
child support for almost anything, but the record indicates that the trial court
made its' decision based on a specific line of questioning by Appellee's trial
counsel. (1 RR 63, 11-20; RR 125, 5-7). Upon review of the record it is clear the
trial court's intent was to order the difference of what Appellant paid in child
support and what he should have been paying per guidelines for the 11 months he
had a higher paying job. The trial court erred by failing to review the evidence in
calculating those numbers and by blindly adopting the trial counsel's statement as
the correct calculation.
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II. The trial court abused its discretion in awarding prenatal and
postnatal expenses because (1) there was not a “proper showing”
as per Tex. Fam. Code 160.636(g) and (2) it was unfair surprise
Appellee responds in her Reply Brief that the $8,750 in medical insurance
premiums was properly supported by evidence and was not unfair surprise in this
case because she pled for prenatal and postnatal expenses in her counter-petition.
Appellee asserts that Appellant went outside of the record in his Brief regarding
discovery issues; however, the record reflects that there was testimony on the lack
of discovery in this case. Specifically, Appellant testified that discovery was
requested and that nothing was ever provided in response to requests for medical
bills. (RR 67, 13-19). Further, a Certificate of Discovery is on file with the court
regarding such requests dated November 12, 2012. (2 RR 56-57; CR 25). On the
other hand, Appellee admittedly goes outside the record in her Reply Brief to
provide only one of Appellant's discovery requests. Appellee further admits in her
Reply Brief that there was not any documents produced regarding the COBRA
premiums paid by Appellee's parents because that specific discovery question did
not request “insurance premiums.” Appellee fails to provide any other request(s)
as served by Appellant in that set of discovery.
More importantly, Appellee asserts she is entitled to prenatal and postnatal
expenses despite the lack of any evidence offered or admitted on these expenses.
The oral testimony and shorthand rendition written out by the mother of Appellee,
4
Mrs. Jaime Terral, was the only testimony presented in connection with the health
insurance premiums for Appellee and the child. Further, a copy of this hand
written rendition was not provided to Appellant's trial counsel at trial so that she
could properly cross-examine the witness. The original was admitted and taken
into the possession of the court. (1 RR 75, 25 – 76, 9). This was unfair surprise
since there had never been any mention of such premiums prior to the trial. At the
time of the offering the following objection was made by Appellant's counsel:
MS. LOVELESS: Objection, your Honor. This is just her
testimony on a sheet of paper.
THE COURT: That's all she's offering it for, is a shorthand
rendition of her testimony.
Similarly, In the Interest of Q.D.T., Jr., A Child, trial counsel for Appellee
did not offer into the record any evidence of the prenatal and postnatal expenses.
In that case, it is deduced by the Court of Appeals from the testimony that the
parties reviewed certain medical expense documents while certain witnesses were
testifying. That is not what happened in this case as the only witness who testified
to any prenatal and postnatal expenses was Appellee's mother. The only document
she referred to was her own hand written shorthand rendition on notebook paper.
There were no supporting documents offered with regards to the premiums being
paid. Specifically, no documents were produced such as a redacted bank statement
reflecting the payments made for the premiums, there was not a copy of the
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insurance policy itself offered, or an invoice breaking down the cost of the
premiums for what time period was covered or who was covered.
Further, the trial court essentially reimbursed Appellee's parents for health
insurance premiums for Appellee well past the postpartum period as well as a 6
month time period when the child was covered by Appellant's health insurance
obtained through his employer. (1 RR 75, 3-9, 1 RR 32, 4-6).
Again, as evidenced when the trial court made it's oral rendition, it adopted
the number it heard from trial counsel for Appellee (1 RR 125, 7). This tends to
support that the trial court relied solely on Appellee's counsel to provide figures
without reviewing the evidence. Appellee cites Hanson v. Lecky, 754 S.W.2d 292
(1988) in connection with the prenatal and postnatal expenses; however, the issue
dealt with in that case was whether there was evidence provided on attorney's fees.
The Hanson court found evidence of the attorney submitting evidence of such
attorneys fees, including detailed time slips. Hanson v. Lecky, 754 S.W.2d 292,
298 (Tex.App.-Tyler 1988, writ denied). The trial erred in awarding the cost of
health insurance premiums to Appellee as there was an absence of evidence to
support such an award. Lastly, Tex. R. App. Proc. 33.1 explicitly provides that in a
nonjury case, a complaint regarding the legal or factual insufficiency of the
evidence may be made for the first time on appeal. Tex.R.App.P. 33.1(d).
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III. The trial court abused its discretion in awarding attorney's fees to
Appellee's trial counsel when no evidence was presented on fees
and counsel failed to designate herself as an expert
Appellee cites Hirczy v. Hirczy in that a trial court may award attorney's fees
as costs in divorce cases; however, the Hirczy court found that the attorney
requesting fees provided evidence to the trial court support her request. Hirczy v.
Hirczy, 838 S.W.2d 783, 786 (Tex.App.1992). Appellee asserts in her Reply Brief
that “. . . it is a well established principle of law that an attorney may testify as to
reasonableness and necessity of attorney's fees citing Garcia v. Gomez. However,
the Garcia court found that the attorney had provided some evidence as to
attorney's fees incurred. Garcia v. Gomez, 319 S.W.3d 638, 642 (Tex. 2010)
(emphasis added). Moreover, the Garcia case dealt with a medical malpractice
claim in connection with Texas Civil Practice & Remedies Code §74.351(b). Here,
Appellee's trial counsel did not provide any testimony as to the reasonableness of
her fees in this case. The record merely reflects that she asked for attorney's fees
in the amount of $9,272.00 (1 RR 125, 22 – 126, 4).
Counsel for Appellee again goes outside of the record alleging that she
designated herself as an expert witness in responses to Request for Disclosure;
however, there was not a witness list offered to the court regarding experts.
Further, counsel for Appellant did state on the record that counsel for Appellee sent
Requested Relief to her on the Friday before the Monday trial and that Appellee's
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Request Relief requested that each party pay their own attorney's fees. (RR 168,
11-18). Trial counsel for Appellee acknowledged the document by stating, “But I
didn't introduce it.” (RR 168, 19). Trial counsel for Appellee did not designate
herself as an expert and did not provide any evidence to support her fees.
Appellee's Brief asserts that the judge could award attorney's fees for a
variety of reasons; however, that is not the issue being considered. The issue is
whether the trial court abused its discretion and awarded attorneys fees when
Appellee's trial counsel failed to comply with the prerequisites for such an award.
The record reflects the prerequisites for an award of attorney's fees in this matter
were not met.
Lastly, Appellee asserts that Appellant failed to preserve error on the issue of
attorney's fees citing Tex. R. Civ. Proc. 33.1. Appellant asserts that the issue of
attorney's fees was not one which required to be preserved at the time of trial. In
the Interest of Q.D.T., Jr., A Child, found the following:
In awarding attorney’s fees under the Family Code, the court
may not take judicial notice that usual and customary fees are
reasonable; the party must offer legally and factually sufficient
evidence on the issue. See, e.g., London v. London, 94 S.W.3d
139, 147–49 (Tex. App.-Houston [14th Dist.] 2002, no pet.);
Woollett, 23 S.W.3d at 52–53; see also Charette v. Fitzgerald,
213S.W.3d 505, 514–15 (Tex. App.-Houston [14th Dist.]
2006, no pet.) (stating that, in actions other than those
identified in section 38.001 of the Texas Civil Practice and
Remedies Code, the trial court may not take judicial notice
that the usual and customary fees are reasonable and the party
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must offer legally and factually sufficient evidence of
reasonableness).
In this case, there was not an action filed under Tex.Civ.Prac.Rem.Code §38.001,
and therefore, it required an offering of legally and factually sufficient evidence on
the issue of requested attorney fees in this case. Tex. R. App. Proc. 33.1 explicitly
provides that in a nonjury case, a complaint regarding the legal or factual
insufficiency of the evidence may be made for the first time on appeal.
Tex.R.App.P. 33.1(d). Further, In the Interest of Q.D.T. case, the Court holds that
“. . . a motion for new trial is not required to preserve a factual-sufficiency issue in
a bench trial. Tex.R.Civ.P. 324(a),(b). (1 RR 125, 22)
The award of the attorney's fees to Appellee is not supported by sufficient
evidence in this matter.
CONCLUSION AND PRAYER
This appeal concerns the trial court abusing its' discretion in arbitrarily
adopting trial counsel for Appellee's calculations for retroactive child support,
ordering prenatal and postnatal expenses where there was not evidence to support
such an award, and awarding attorney's fees when fees were not proven up before
the trial court. Appellant prays that this Court (1) reverse the judgment of the trial
court as to the the amount of retroactive child support ordered to $3,790.00, (2)
reverse the award of prenatal and postal expenses and (3) reverse the award of
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attorney's fees awarded to Appellee's counsel. Appellant additionally prays for any
and all other relief to which Appellant may be entitled.
Respectfully submitted,
Law Office of Melissa E. Loveless
9595 Six Pines Drive, Ste. 8210
The Woodlands, Texas 77380
Tel: (281) 973-8763
Fax: (832) 415-0123
By:_________________________________
Melissa E. Loveless
State Bar No. 24044326
melissa@lovelesslaw.com
Counsel for Appellant
CERTIFICATE OF SERVICE
As required by TEX. R. APP. P., I certify that on March 2, 2015, I served a true
and correct copy of the foregoing Brief for Appellant to all parties by e-serving as
follows:
Terisa Taylor
The Law Office of Terisa Taylor, P.C.
917 Franklin Street, Suite 510
Houston, Texas 77002
______________________________
Melissa E. Loveless
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Jarrod Dale Young v. Kathryn Renee Terral
Combined Opinion