      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                        NO. 03-17-00085-CV



                                    Dennis Sanders, Appellant

                                                   v.

                                  Krista Marie Merritt, Appellee


      FROM THE DISTRICT COURT OF HAYS COUNTY, 428TH JUDICIAL DISTRICT
          NO. 08-2106, HONORABLE WILLIAM HENRY, JUDGE PRESIDING



                              MEMORANDUM OPINION


                 Dennis Sanders appeals the trial court’s award under section 157.167(b) of the Texas

Family Code. See Tex. Fam. Code § 157.167(b). Sanders brought an enforcement proceeding

against Krista Merritt, the mother of his child.1 The parties reached a settlement on the substantive

issues and presented the issue of Sanders’ attorney’s fees and costs to the trial court for

determination. The trial court declined to award attorney’s fees and awarded $1,500 in costs.

Sanders argues on appeal that the trial court abused its discretion in refusing to award the full amount

of attorney’s fees that he sought. For the reasons that follow, we affirm the trial court’s order.




        1
            The record reflects that Sanders and Merritt were never married.
                                         BACKGROUND

               In 2009, the trial court rendered an Order in Suit to Modify Parent-Child Relationship,

and in 2010, the trial court rendered an Agreed Modified Order as to Possession and Access. In

September 2015, Sanders filed a Motion for Enforcement of Possession and Access, alleging that

Merritt had violated the prior orders on multiple occasions by refusing to allow him access to the

child during his periods of possession, and seeking attorney’s fees and costs. In addition, to

responding to Sanders’ motion, Merritt filed a counter-motion for enforcement, a petition to modify

the parent-child relationship, and a motion to modify child support. Sanders subsequently filed a

counter-petition to modify the parent-child relationship in which he sought, among other things, a

50/50 possession schedule. After somewhat contentious and protracted pre-trial discovery, a final

hearing was held in July 2016. During a recess of the hearing, the parties reached a settlement

agreement as to all issues except Sanders’ claim for attorney’s fees and costs. The agreement

included 11 “make-up” days of possession for Sanders, but no modified summer possession;

modified child support, though not retroactive to the filing of Merritt’s counter-motion; and the

offsetting of the parties’ claims for medical expenses.

               The issue of attorney’s fees and costs was presented to the trial court for

determination. Sanders’ attorney testified concerning his qualifications, experience, and hourly rate,

which he stated was reasonable and customary. He offered into evidence his fee bills and testified

that Sanders had incurred $45,313 in fees and $2,306.51 in costs for the entire proceeding. Of that

total, he testified that $8,820 in fees and $1,500 in costs were directly related to his motion for

enforcement. On cross-examination, Merritt’s attorney elicited testimony that Merritt had incurred

her own attorney’s fees, that Sanders did not obtain the modification of possession he had sought,

                                                  2
and that the settlement did not include retroactive child support. Sanders also offered into evidence

a copy of the deposition of Merritt, in which she admitted to one of the alleged violations of the

court’s order concerning possession. The trial court rendered an order finding that the parties had

agreed to modification and ordering the agreed modification. The trial court further found that the

parties had “reached an agreement pertaining to . . . alleged violations” regarding possession and

ordered that Sanders was awarded 11 “additional days of possession to compensate for his missed

periods of possession.” Under a subsection entitled “Attorney’s Fees,” the trial court ordered that

Merritt pay $1,500 in “costs.”

               The trial court subsequently issued an Order on Findings of Fact and Conclusions of

Law, in which it incorporated verbatim its prior findings. The order also contained additional

findings, including:


       3. Movant, Dennis Sanders, attended the contested hearing in person and with his
       attorney of record. At trial, Movant, with counsel, chose to settle all of the contested
       issues except for attorney’s fees, rather than participate in a complete trial that would
       have addressed all of the contested issues, in addition to attorney’s fees.

       4. The written Order was drafted by Dennis Sanders’ attorney of record and presented
       to Dennis Sanders for his review and signature, after Judge Bill Henry rendered his
       judgment in open Court, based on the parties’ multiple agreements and based on the
       child’s best interest.

       5. Dennis Sanders voluntarily signed the Order.

       6. Dennis Sanders did not present any credible evidence at the hearing to contravene
       the ultimate rulings of the Court pertaining to the parties’ agreements on
       conservatorship, possession/access, child support, and enforcement, or based on the
       issue of reasonable and necessary attorney’s fees as presented to the Court and
       commensurate with his causes of action as considered in the best interest of the child.

The trial court also made the following conclusions of law:



                                                  3
       1. The parties’ agreements on conservatorship, possession/access, child support, and
       Movant’s, Dennis Sanders, enforcement action, as ordered by the Court, are in the
       best interest of the child.

       2. Movant’s request for attorney’s fees, as presented to the Court, were [sic] not
       reasonable and necessary, in light of the causes of action, the circumstances of the
       parents and of the child, and as considered in the best interest of the child.

       3. The Court ordered reasonable and necessary attorney’s fees ($1,500.00) that were
       based on the pleadings, evidence, argument of counsel, and the circumstances of the
       parents and of the child, and as considered in the best interest of the child.2


This appeal followed.


                                            DISCUSSION

                In a single issue, Sanders argues that the trial court abused its discretion by failing to

award the full amount of reasonable and necessary attorney’s fees he incurred.3 Section 157.001(a)

of the Family Code authorizes the filing of a motion for enforcement of a final order in a suit

affecting the parent-child relationship, including an order for possession of or access to a child. See

id. § 157.001(a). Under section 157.167, a movant in an enforcement proceeding is entitled to

recover reasonable attorney’s fees “[i]f the court finds that the respondent has failed to comply

with the terms of an order providing for the possession of or access to a child.” Id. §157.167(b).

Upon such a finding, the award of attorney’s fees is generally mandatory. Id.; Tucker v. Thomas,

       2
           Although conclusion of law No. 3 states that the trial court ordered “reasonable and
necessary attorney’s fees ($1,500.00),” it appears from the record as a whole that the award was for
costs, not attorney’s fees. Sanders’ attorney testified that Sanders had incurred $1,500 in costs, and
all other record references are to the award of $1,500 in “costs.” In addition, the trial court made a
separate conclusion of law stating that Sanders’ request for attorney’s fees was not reasonable
and necessary.
       3
           Merritt did not file an appellate brief.

                                                      4
419 S.W.3d 292, 296 (Tex. 2013). “[F]or good cause shown, the court may waive the requirement

that the respondent pay attorney’s fees and costs if the court states the reasons supporting that

finding.”   Tex. Fam. Code § 157.167(c); see Russell v. Russell, 478 S.W.3d 36, 40 (Tex.

App.—Houston [14th Dist.] 2015, no pet.).

                 Here, the trial court made no finding that Merritt failed to comply with the terms of

the order providing for the possession of or access to the child. Sanders argues that he “successfully

prosecuted” his motion for enforcement because he testified to Merritt’s violations of the prior

orders, offered into evidence Merritt’s deposition testimony in which she admitted to one violation,

and was awarded 11 additional days of possession. However, before the trial court ruled, the parties

settled all issues except the issue of Sanders’ attorney’s fees and costs. The trial court made no

determinations regarding the enforcement and modification issues, finding only that the parties

entered into an agreement regarding the “alleged violations” and expressly finding that Sanders

“chose to settle all of the contested issues except for attorney’s fees, rather than participate in a

complete trial that would have addressed all of the contested issues, in addition to attorney’s fees.”

Sanders points us to the language in the trial court’s order stating that he was awarded 11 days of

additional possession time “to compensate for his missed periods of possession.” However, read

in context, the quoted phrase simply refers to what the parties agreed to in settlement of the

“alleged violations” and does not constitute a “finding” by the trial court that Merritt violated the

court’s order.

                 Absent a finding by the court that Merritt failed to comply with the terms of the prior

orders, the mandatory award of attorney’s fees under section 157.167(b) was not triggered. See

In the Interest of C.S., No. 11-12-00294-CV, 2014 Tex. App. LEXIS 2593, at *10–11 (Tex.

                                                   5
App.—Eastland Mar. 6, 2014, no pet.) (mem. op.) (applying analogous section 157.167(a), which

provides for mandatory attorney’s fees if court finds respondent failed to make child support

payments, and holding that where trial court did not find that respondent failed to make child support

payments, movant was not entitled to attorney’s fees); Lee v. Kaufman, No. 03-10-00148-CV,

2011 Tex. App. LEXIS 6969, at *11 (Tex. App.—Austin Aug. 26, 2011, no pet.) (mem.

op.) (concluding that where trial court denied motion to enforce, it did not err in failing to

award attorney’s fees under section 156.167); cf. Fedorov v. Cavuto, No. 03-14-00430-CV,

2016 Tex. App. LEXIS 4668, at *1, *10–12, *25–26 (Tex. App. —Austin May 4, 2016, pet. denied)

(mem. op.) (upholding trial court’s award of attorney’s fees under section 157.167 where, following

parties’ settlement on substantive issues, trial court incorporated terms of settlement agreement into

final order and expressly found that respondent had taken actions in violation of agreed divorce

decree). We conclude that the trial court did not err in failing to award attorney’s fees.

               Sanders also argues that the trial court failed to made a good cause finding before

declining to award attorney’s fees, as required by section 157.167(c). See Tex. Fam. Code

§ 157.167(c). However, because the award of attorney’s fees was not mandatory here, the trial court

was not required to make a good cause finding under section 157.167(c) before declining to award

Sanders attorney’s fees. See id. § 157.167(b), (c); In the Interest of L.R.S., No. 02-09-00244-CV,

2011 Tex. App. LEXIS 1589, at *24 (Tex. App.—Fort Worth Mar. 3, 2011, no pet.) (mem. op)

(concluding that where trial court determined that respondent had not violated order, trial court was

not required to make good cause finding before denying request for attorney’s fees under section

157.167). Further, even if the mandatory award of attorney’s fees had been triggered in this case,

the record reflects that the trial court stated its reasons for finding good cause to waive the

                                                  6
requirement that the trial court award attorney’s fees. See Tex. Fam. Code § 157.167(c). The trial

court found that Sanders “did not present any credible evidence at the hearing . . . based on the issue

of reasonable and necessary attorney’s fees as presented to the Court and commensurate with his

causes of action as considered in the best interest of the child.” And the trial court expressly stated

in its conclusions of law that Sanders’ request for attorney’s fees was “not reasonable and necessary,

in light of the causes of action, the circumstances of the parents and the child, and as considered in

the best interest of the child” and that the award of $1,500 was “reasonable and necessary based on

the pleadings, evidence, argument of counsel, and the circumstances of the parents and of the child,

and as considered in the best interest of the child.”

               Sanders does not challenge these findings and conclusions.              “We defer to

unchallenged findings of fact that are supported by some evidence.” Tenaska Energy, Inc. v.

Ponderosa Pine Energy, LLC, 437 S.W.3d 518, 523 (Tex. 2014); see Rich v. Olah, 274 S.W.3d 878,

884 (Tex. App.—Dallas 2008, no pet.) (“Unchallenged findings of fact are binding on the parties and

appellate court.”). On this record, we conclude that the trial court’s findings were supported by some

evidence. See Tenaska Energy, 437 S.W.3d at 523; Rich, 274 S.W.3d at 884. Further, the binding,

unchallenged findings support the trial court’s conclusions of law regarding attorney’s fees, and we

cannot conclude on this record that the conclusions were erroneous as a matter of law. See Condom

Sense, Inc. v. Alshalabi, 390 S.W.3d 734, 749 (Tex. App.—Dallas 2012, no pet.) (stating that

appellate court may reverse trial court’s judgment only if its conclusions are erroneous as matter of

law); Thomas v. Cornyn, 71 S.W.3d 473, 485 (Tex. App.—Austin 2002, no pet.) (same). Nor does

Sanders argue that these findings and conclusions were insufficient to meet the requirements of

section 157.167(c); rather, Sanders contends that the trial court made “[n]o good cause finding . . .

                                                  7
nor any statement as to the reasons supporting such a finding.” We cannot agree. Even if an award

of attorney’s fees had been mandated in this case, we would conclude that the trial court’s findings

and conclusions concerning attorney’s fees sufficiently stated a finding of good cause for waiving

the requirement of attorney’s fees and sufficiently explained the trial court’s reasons under the

requirements of section 157.167(c) for finding such good cause. See Tex. Fam. Code § 157.167(c)

(requiring that trial court state reasons to support finding of good cause for waiving requirement for

award of attorney’s fees, but not requiring use of terms “good cause” or “waive”). We overrule

Sanders’ issue.


                                           CONCLUSION

                  Having overruled Sanders’ sole issue, we affirm the trial court’s order.


                                                _____________________________________________
                                                Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Pemberton and Goodwin

Affirmed

Filed: August 2, 2017




                                                   8
