Opinion issued April 11, 2019




                                        In The

                                Court of Appeals
                                       For The

                           First District of Texas
                              ————————————
                                NO. 01-18-00310-CV
                             ———————————
                   IN THE INTEREST OF S.E.W., A CHILD


                    On Appeal from the County Court at Law
                             Waller County, Texas
                       Trial Court Case No. 16-07-23814


                           MEMORANDUM OPINION

      Appellant Karen George-Baunchand (Baunchand) intervened in a child

custody proceeding to recover her attorney’s fees and costs. The trial court granted

a default judgment in favor of Baunchand and awarded her $6,000 in attorney’s fees.

In three issues on appeal, Baunchand argues that the trial court erred by not awarding

her the full amount of attorney’s fees that she requested, and that trial court violated
her Fifth and Fourteenth Amendment rights by reducing the amount of attorney’s

fees. We affirm the trial court’s judgment.

                                   Background

      In July 2016, Mother hired Baunchand to represent her in a child custody

dispute. According to Baunchand, the child was visiting Father in Arizona for the

summer and, despite Mother’s and Father’s agreement that the child would only stay

in Arizona until mid-July, Father was refusing to return the child to Mother in

Houston. Baunchand was employed by the International Center for Justice (ICFJ), a

non-profit legal organization, when Mother retained her services. Among other

things, Baunchand filed an original petition, an amended petition, and two

applications for writs of habeas corpus during her representation.

      On March 7, 2017, Baunchand filed a motion to withdraw as Mother’s counsel

because Mother was not communicating with her or paying her legal fees. On April

18, 2017, Baunchand and ICFJ filed a first amended petition in intervention seeking

to recover $18,000 in attorney’s fees and $80.00 in costs from Mother and Father.

In support of the motion, Baunchand attached her affidavit and two billing

statements that ICFJ had sent to Mother documenting the legal services that

Baunchand performed between July 1, 2016 and December 4, 2016. In her affidavit,

Baunchand averred that she regularly practiced immigration and family law in Texas

and was Mother’s attorney of record in the underlying Suit Affecting the Parent-


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Child Relationship (SAPCR). Baunchand stated in her affidavit that although her

normal and customary fees in such cases is $500 per hour, she reduced her rate to

$250 per hour based on Mother’s financial status. She further averred that she had

deducted time spent on phone calls and text messages, and was only seeking fees for

72 hours of work.

      On June 16, 2017, the trial court held a hearing on Mother’s and Father’s

Agreed Order in this case and Baunchand’s request for attorney’s fees. The hearing

was attended by Father’s attorney, the child’s amicus attorney, and Baunchand.

Mother did not appear at the hearing.

      Baunchand testified at the hearing in support of her request for $18,000 in

attorney’s fees. Specifically, Baunchand testified that Mother hired her in July 2016

and they executed a formal contract for services at that time. She handed the trial

judge the original contract during the hearing. The contract, however, was not

admitted into evidence during the hearing or attached to Baunchand’s affidavit.

Although Baunchand attached a copy of the purported agreement to her appellate

brief, we cannot consider it for purposes of her appeal because the document is not

included in the appellate record. See Samara v. Samara, 52 S.W.3d 455, 459 (Tex.

App.—Houston [1st Dist.] 2001, pet. denied) (holding appellate courts cannot

consider documents attached to briefs that do not appear in appellate record).




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      Baunchand testified that although her normal and customary charge is $450

an hour,1 she reduced her rate to $250 an hour because Mother claimed to be

indigent. She testified that she spent approximately 94 to 112 hours on the case, and

that she reduced her time to 72 hours because of Mother’s financial status.2 “These

hours were reasonable and necessary and -- I charge less than the customary rate of

350, my rate was 250 an hour.3 And I reduced everything that I could.” She explained

that although Mother made unreasonable demands on her time, she did not charge

Mother for the time she spent responding to Mother’s excessive text messages or

late-night phone calls. She also did not charge Mother for copies or faxes.

      Baunchand testified that Mother stopped making payments in November 2016

and stopped communicating with Baunchand in November or December 2016.


1
      Baunchand had averred in her affidavit that her customary rate was $500 per hour
      and she argues on appeal that $500 is her customary rate in cases like this one.
2
      On appeal, Baunchand argues that Mother lied when she claimed that she was
      indigent and that “[t]he final judgment failed to take [this fact] into account.”
      Baunchand also attaches supporting documentation to her appellate brief. First,
      Baunchand does not appear to have challenged Mother’s indigency claims in the
      trial court or argued that the court should take Mother’s true financial status into
      consideration when determining the amount of reasonable attorney’s fees in this
      case. See generally Garcia v. Alvarez, 367 S.W.3d 784, 788 (Tex. App.—Houston
      [14th Dist.] 2012, no pet.). Second, the documents attached to Baunchand’s brief
      are not included in the appellate record and, therefore, we cannot consider them for
      purposes of appeal. See Samara v. Samara, 52 S.W.3d 455, 459 (Tex. App.—
      Houston [1st Dist.] 2001, pet. denied) (holding appellate courts cannot consider
      documents attached to briefs that do not appear in appellate record).
3
      When the trial judge asked Father’s counsel “what the average ordinary fee per hour
      is in Waller County for an attorney in a comparable matter, counsel responded, “My
      guess would be around 350, 400. 300 to -- 300 to 400.”
                                           4
Baunchand, however, continued to participate in the case and attended

approximately six hearings after December 2016 and a mediation because she was

still Mother’s attorney of record. Baunchand did not bill Mother for any of those

hours.

         When the trial judge asked her about her relationship with ICFJ, Baunchand

told the court that she was working for ICFJ when Mother hired her in July 2016.

According to Baunchand, who was also on ICFJ’s board of directors, the non-profit

lost its 501(c)(3) tax status in August 2016 and she stopped working for them and

resigned her directorship in November or December 2016. When the trial judge

asked who paid her legal fees when she was employed by ICFJ, Baunchand told the

court, “the client is paying the nonprofit. If the client doesn’t pay the nonprofit, I do

not get paid.” Baunchand testified that she had not been paid by ICFJ for the services

she provided in this case. Baunchand also testified that she did not execute a new

contract with Mother after Baunchand left ICFJ because Baunchand believed that

the original July 2016 agreement was sufficient.

         Baunchand also testified about some of the specific services she performed in

this case. Specifically, Baunchand testified that after her first meeting with Mother

on July 3, 2016, she reviewed the text messages and e-mails that Mother and Father

had exchanged, along with other documents that Mother had sent to her, and she

“prepared an emergency petition, which is a writ of habeas for return of the child.”


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The first ex parte hearing on Mother’s application for a writ of habeas corpus and

request for temporary orders was recessed to allow Mother to amend her application.

After the application was amended, the court reconvened the hearing and issued

temporary orders directing Father to return the child. Baunchand stated that after she

filed the writ she “also filed an original SAPCR [on July 12th] at the request of the

visiting judge.” Baunchand billed Mother for two hours for each hearing.

      At that point, Father’s counsel questioned Baunchand on voir dire.

      MR. SHORT: Is it your testimony under oath, ma’am, that a judge
           advised you what to do as a lawyer about filing SAPCRs and that
           sort of thing? Is that what you’re telling this -- His Honor?

      MS. BAUNCHAND: A visiting judge gave me some instructions
           concerning the writ and also the SAPCR.

      MR. SHORT: Visiting judge instructed you [that] you had the wrong
           pleadings, right?

      MS. BAUNCHAND: She did not.

      Baunchand also billed Mother for the six hours she spent preparing and filing

a second writ of habeas corpus on July 20th. The judge asked Baunchand, “And it

took six hours to repeat the information that was in the first habeas corpus into

another habeas corpus?” Baunchand responded, “The [visiting] judge struck through

some of the first habeas corpus and gave me specific instructions concerning the

second one.”




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        Father’s counsel also challenged the necessity of the writs and told the trial

court that Baunchand had “started the case by sending kidnapping allegations to

[Father’s] NFL team” and “so a huge amount of the time and effort in this was as a

result of what I believe to be Rule 13 sanctionable actions.” Father’s counsel argued

that:

        A simple filing of a petition to begin this suit with an hour’s billing and
        a 106 is -- would have cost virtually nothing instead of suggesting that
        you needed to go through all this drama. And then from a nonprofit
        organization, which makes it even worse, Judge. I can’t imagine that
        attorney’s fees would be over 3 or $400.

The trial judge noted that the contract Baunchand had handed him set the minimum

fee in this case at $20,000.

        Baunchand denied making kidnapping allegations and testified that her

statements were based on the text messages between Mother and Father that Mother

had provided to Baunchand. Baunchand testified that she only filed the writs because

Father was refusing to return the child. The trial judge disagreed with Baunchand’s

characterization of the evidence and noted that he had reviewed the text messages

and the message “did not say that [Father] was not going to return the child.”

        Baunchand also testified that she “attended numerous hearings concerning

this case” and stated that there were “quite a few continuances” because Father was

not present at any court hearings, despite assurances that he would attend at least

two of the hearings, and his counsel filed numerous motions for continuance. Among


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other charges, Mother was billed four hours for a hearing on child support on August

18, 2016 and four hours for another hearing on September 3, 2016. Baunchand

explained that the August 18, 2016 hearing lasted for four hours because Mother was

late and there were questions about whether she had been given notice of the hearing.

      Father’s counsel questioned the necessity of a hearing on child support

because the parties had agreed that Father would pay $1,700 per month in child

support. He also told the trial court that some of the hearings had to be continued or

reset because Baunchand had attempted to serve Father incorrectly and had failed to

give proper notice.

      Baunchand’s paralegal also testified about the numerous text messages and

phone calls that Mother made to Baunchand that Mother was not billed for.

      At the end of the hearing, the trial court accepted Mother’s and Father’s

Agreed Order in Suit Affecting Parent-Child Relationship. The trial court further

stated that after reviewing and hearing Baunchand’s testimony regarding her request

for attorney’s fees, the court ordered Mother to pay Baunchand $6,000 in attorney’s

fees, i.e., $7,500 minus the $1,500 that Mother had already paid to Baunchand.

                                  Attorney’s Fees

      In her first and second issues, Baunchand argues that the trial court erred by

not awarding her $18,000 in attorney’s fees, which is the full amount she requested.




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A.    Standard of Review

      Baunchand argues on appeal that she has a right to recover her attorney’s fees

in this case pursuant to section 106 of the Texas Family Code and Chapter 38 of the

Texas Civil Practice and Remedies Code.4 See TEX. FAM. CODE § 106.002(a)

(authorizing award of reasonable attorney’s fees in SAPCR proceeding); TEX. CIV.

PRAC. & REM. CODE § 38.001(8) (authorizing award of attorney’s fees if claim is for

“an oral or written contract”). We review the amount of an award of attorney’s fees

under both Chapter 38 and section 106 for abuse of discretion. See Guimaraes v.

Brann, 562 S.W.3d 521, 551 (Tex. App.—Houston [1st Dist.] 2018, no pet.) (stating

trial courts have broad discretion to award reasonable attorney’s fees and expenses

in SAPCRs); see also Siam v. Mountain Vista Builders, 544 S.W.3d 504, 510 (Tex.

App.—El Paso 2018, no pet.) (stating trial court has discretion to determine amount

of reasonable and necessary attorney’s fees under Chapter 38).

      As the party seeking fees, Baunchand bore the burden to show her attorney’s

fees were reasonable and necessary. See Garcia v. Gomez, 319 S.W.3d 638, 646

(Tex. 2010). The reasonableness of attorney’s fees is a question of fact and an

appellate court may not substitute its judgment for that of the factfinder. Smith v.



4
      Although Baunchand’s appellate brief focuses almost exclusively on her right to
      recover attorney’s fees under Chapter 38, she does not appear to have raised this
      point in the trial court. Nevertheless, we will assume without deciding for purposes
      of this appeal that Baunchand is entitled to recover her fees under Chapter 38.
                                           9
Patrick W.Y. Tam Trust, 296 S.W.3d 545, 547 (Tex. 2009). A reasonable fee is one

that is not excessive or extreme, but rather moderate or fair. Garcia, 319 S.W.3d at

642. A request for attorney’s fees may be found unreasonable even if it is supported

by uncontradicted evidence. See Ragsdale v. Progressive Voters League, 801

S.W.2d 880, 882 (Tex. 1990).

      Factors that trial courts should consider when determining the reasonableness

of a fee include: the time, labor and skill required to properly perform the legal

service; the novelty and difficulty of the questions involved; the customary fees

charged in the local legal community for similar legal services; the amount involved

and the results obtained; the nature and length of the professional relationship with

the client; and the experience, reputation and ability of the lawyer performing the

services. See Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818

(Tex. 1997). “Trial judges can [also] draw on their common knowledge and

experience as lawyers and as judges in considering the testimony, the record, and

the amount in controversy in determining attorney’s fees.” McMahon v. Zimmerman,

433 S.W.3d 680, 693 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (quoting

Protect Envtl. Servs. v. Norco Corp., 403 S.W.3d 532, 543 (Tex. App.—El Paso

2013, pet. denied)).




                                         10
B.    Analysis

      Baunchand argues that the trial court erred by not awarding her the full

amount of attorney’s fees because her “hourly rate was half the going rate in the

community/locality” and, therefore, her “attorney fees and cost were more than

reasonable.” The amount of an attorney’s rate, however, is only one factor that a

court may consider when evaluating the reasonableness and necessity of attorney’s

fees in a case.

      Here, Baunchand requested $18,000 for six months of work in a child custody

dispute. Although Baunchand presented evidence in support of her request, the trial

court was not required to take her testimony at face value and award her all the

attorney’s fees she was requesting. See Ragsdale, 801 S.W.2d at 882 (stating that

request for attorney’s fees may be found unreasonable even if it is supported by

uncontradicted evidence).

      The hearing testimony raises questions about the reasonableness and necessity

of some of the legal services that Baunchand provided to Mother, including the

fourteen hours she spent preparing two writs of habeas corpus, and the hearings held

on the writs. The record reflects that Baunchand began the case by filing an

application for writ of habeas corpus, but the writ needed to be amended before the

court considered it. After Baunchand filed the amended writ, she “also filed an

original SAPCR at the request of the visiting judge.” The visiting judge also gave


                                        11
Baunchand specific instructions with regard to her second writ. Father’s counsel

disputed that the writs were necessary and argued Baunchand should have filed a

SAPCR petition first, which “would have cost virtually nothing.” Although

Baunchand argued that the writs were necessary because Father was refusing to

return the child, the trial judge disagreed with her assessment of the evidence and

noted that he had reviewed the text messages and the messages “did not say that

[Father] was not going to return the child.” The trial judge also expressed concern

regarding the amount of time Mother was charged for Baunchand’s preparation of

the second writ (“And it took six hours to repeat the information that was in the first

habeas corpus into another habeas corpus?”) and the amount of time Mother was

charged for various hearings.

      Baunchand requested $18,000 in attorney’s fees for six months’ work in this

child custody dispute; the trial court awarded her $6,000 in fees. Considering the

evidence presented during the hearing that contradicts or undermines Baunchand’s

testimony regarding the reasonableness and necessity of her fees, we conclude the

trial court’s award of $6,000 in attorney’s fees to Baunchand was not arbitrary or

unreasonable or without reference to guiding principles.

      We overrule Baunchand’s first and second issues.




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                             Constitutional Violations

      In her third issue, Baunchand argues that the trial court violated her Fifth and

Fourteenth Amendment rights by reducing the amount of attorney’s fees.

Baunchand, however, did not raise her constitutional claims below. To preserve a

complaint for appellate review, a party generally must present it to the trial court by

timely request, motion, or objection, stating the specific grounds, and obtain a ruling.

TEX. R. APP. P. 33.1(a). This rule applies to constitutional claims. See In re L.M.I.,

119 S.W.3d 707, 710–11 (Tex. 2003); Shaw v. County of Dallas, 251 S.W.3d 165,

174 (Tex. App.—Dallas 2008, pet. denied). Because Baunchand did not raise this

issue below, it presents nothing for our review. See In re L.M.I., 119 S.W.3d at 710–

11; Shaw, 251 S.W.3d at 174.

      We overrule Baunchand’s third issue.

                                     Conclusion

      We affirm the trial court’s judgment.




                                               Russell Lloyd
                                               Justice


Panel consists of Justices Lloyd, Kelly, and Hightower.




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