                                                                           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




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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


                                          1
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

                                            2
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.

                                         3
      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


                                         5
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).




                                         6
      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


                                           7
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


                                           8
             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


                                           9
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


                                         10
