












 
 
 
 
 
 
                                               COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                        NO. 2-04-399-CV
 
 
IN THE
INTEREST OF B.B.R. A/K/A F.D.R.T.                                             
                                                    
                                              ------------
 
            FROM THE 393RD DISTRICT COURT OF DENTON COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
I. 
Introduction
Appellant, Family to Family Adoptions, Inc.,
appeals the trial court=s judgment in a parentage action
ordering it to pay the father=s attorney=s
fees.  Because we hold that the trial
court did not abuse its discretion in awarding attorney=s fees
against Family to Family, we affirm.
II. 
Factual Background




This appeal stems from the trial court=s award
of attorney=s fees in a suit to establish a
parent-child relationship between appellee Jose Luis Aguilar and his biological
son, AB.B.R.@  A few months before the baby was born, the
baby=s
mother, Jacqueline Denise Ray, located potential adoptive parents for the baby
boy and sought to have him placed with them. 
Appellant Family to Family Adoptions, Inc. was hired sometime in the
spring of 2003 to facilitate the adoption. 
The baby was born on June 17, 2003, the same day that Aguilar filed his
petition to establish parentage in Denton County.
Aguilar told Ray before the baby was born that he
did not want to relinquish his parental rights to his son.  Furthermore, Aguilar also told Debbie Seiler,
a Family to Family employee, a few days before the baby was born that he was
not willing to give up his parental rights. 
Nevertheless, Family to Family moved forward with the adoption by
preparing an affidavit for Ray=s
signature relinquishing her parental rights, which named Family to Family as
the baby=s
managing conservator.  Family to Family
also prepared an adoption plan to be signed by Ray and the potential adoptive
parents.  Ray and the potential adoptive
parents signed these documents on June 19, 2003; six days later, the potential
adoptive parents took the baby home with them to Maryland.




On June 20, 2003Cthree
days after Aguilar filed his suit in Denton CountyCFamily
to Family filed its own suit to terminate Ray=s and
Aguilar=s
parental rights in Fort Bend County.  The
record does not reveal how Aguilar became aware of Ray=s
affidavit, but one week later, Aguilar filed an amended petition in his Denton
County suit identifying Family to Family as a party entitled to citation
because A[t]he
mother signed a parental relinquishment affidavit naming [Family to Family] as
managing conservator of this child.@  The amended petition also named Family to
Family as a respondent.  On that same
day, June 27, 2003, Ray executed an affidavit purporting to revoke her
relinquishment of parental rights.  Then,
on July 18, 2003, the Denton County court ordered Family to Family to retrieve
the baby from Maryland and return him to Texas. 
Family to Family returned the baby and then nonsuited the Fort Bend
County action on or about July 21, 2003. 
Also on July 21, the potential adoptive parents intervened in Aguilar=s Denton
County suit to gain custody of the baby. 
They nonsuited this intervention on August 14, 2003.
Over the next year, Ray and Aguilar signed
several Rule 11 agreements regarding custody and support arrangements for the
baby.  The trial court signed an order on
September 22, 2004, adjudicating Aguilar to be the baby=s
father, appointing Aguilar and Ray joint managing conservators of the baby, and
giving Aguilar the right to determine the baby=s
primary residence.  This order also
directed Family to Family to pay $16,447.98 in fees and costs to Aguilar=s
attorney.  Family to Family now brings
this appeal.
 
 
 




III. 
Discussion
A. 
Standing
In its first four issues, Family to Family
complains that the trial court was without jurisdiction to award attorney=s fees
against it because Aguilar lacked standing to sue Family to Family in his
parentage action.  The issue of standing
focuses on whether a party has a sufficient relationship with the lawsuit so as
to have a justiciable interest in its outcome. 
Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex.
2005).  In other words, a party has
standing when it is personally aggrieved. 
Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d
659, 661 (Tex. 1996).  The standing
doctrine requires that there be (1) a real controversy between the parties that
(2) will be actually determined by the judicial declaration sought.  Id. at 662.  Without standing, a court lacks subject
matter jurisdiction to hear the case.  Tex.
Ass=n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 443 (Tex. 1993).




Family to Family argues that no real controversy
existed between it and Aguilar and that Aguilar could not Acreate@ a
justiciable controversy merely by naming Family to Family as a respondent in
his parentage action.  However, Aguilar
was not Acreating@ a
controversy by naming Family to Family as a respondent when he filed his
amended petition.  Instead, a controversy
already existed because Aguilar, as the baby=s
parent, sought managing conservatorship of the baby; yet Ray had named Family
to Family as the baby=s managing conservator, and
Family to Family was exercising conservatorship rights by delivering the baby
to the prospective adoptive parents and allowing them to take the baby out of
state to live with them.  
Family to Family also argues that Aguilar lacked
standing because once Family to Family dismissed its Fort Bend County
termination suit, any controversy with or adverse interest to Aguilar Awas
extinguished@ and Family to Family had no
legal interest in the outcome of the parentage action.  Family to Family further claims that it was
not a party to the suit because, after it nonsuited the Fort Bend County
action, it informed the parties and the court that it had no legal interest in
the suit=s
outcome and it did not sign any Rule 11 agreements filed by Ray and Aguilar
over the course of the suit.




These arguments fail to recognize, however, that
at the time Aguilar filed his amended petition, a real controversy did exist
between Family to Family and Aguilar over custody and possession of the baby
boy.  In that amended petition, Aguilar
claimed that he was entitled to recover attorney=s fees
because Family to Family=s actions in placing the child
with out-of-state adoptive parents over his objections forced him to file the
paternity suit.  Therefore, Family to
Family=s
subsequent act of dismissing the separate Fort Bend County caseCwhich
occurred only after the Denton County court ordered Family to Family to
have the child returned to TexasCdid not
extinguish this controversy in this paternity suit over entitlement to attorney=s fees.  Compare Tex.
R. Civ. P. 162 (providing that dismissal of claims pursuant to a party=s
request for nonsuit does not prejudice the right of the adverse party to be
heard on a pending claim for affirmative relief and does not extinguish a
request for attorney=s fees pending at the time of
dismissal).
We are not persuaded that Family to Family was
not a necessary party to this suit merely because it is not included in the
family code=s list of necessary parties to
parentage suits generally.  See Tex. Fam. Code Ann. ' 160.603
(Vernon 2002).  Naming Family to Family
as a party was necessary in this action because Ray had relinquished her rights
to the baby at the time the amended petition was filed; as between the parents
and the adoption agency, only Family to Family exercised control over
possession of the child and could direct the potential adoptive parents to
return the child to Texas.  Furthermore,
Family to Family filed an answer in this suit and never sought to have itself
dismissed from the case in the trial court. 
Accordingly, we conclude that Aguilar had standing to sue Family to
Family for his attorney=s fees in this controversy over
custody of the baby, and we overrule Family to Family=s first
four issues.
 




B. 
Attorney=s Fees Award
In its fifth issue, Family to Family argues that
the trial court abused its discretion by ordering it to pay Aguilar=s
attorney=s fees
in the parentage action.  The trial court
specified in its findings of fact and conclusions of law that it awarded these
attorney=s fees
pursuant to section 160.636 of the family code, which provides that the court Amay
assess@
attorney=s fees
in a parentage proceeding.[1]  Tex.
Fam. Code Ann. ' 106.002(a) (Vernon Supp.
2005).  
1.     Standard of Review




We review the trial court=s award
of attorney=s fees under an abuse of
discretion standard.  See In re
O.G.M., 988 S.W.2d 473, 478 (Tex. App.CHouston
[1st Dist.] 1999, pet. dism=d)
(applying abuse of discretion standard to trial court=s ruling
on attorney=s fees in parentage action); Adams
v. Stotts, 667 S.W.2d 798, 801 (Tex. App.CDallas
1983, no writ) (same); see also Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex.
1996) (holding that award of attorney=s fees
under section 106.002 in suit affecting the parent‑child relationship
lies within the trial court=s
discretion).  To determine whether a
trial court abused its discretion, we must decide whether the trial court acted
without reference to any guiding rules or principles; in other words, whether
the act was arbitrary or unreasonable.  Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert.
denied, 476 U.S. 1159 (1986).  An
abuse of discretion does not occur as long as some evidence of substantive and
probative character exists to support the trial court=s
decision.  Butnaru v. Ford Motor Co.,
84 S.W.3d 198, 211 (Tex. 2002).  Here,
the statute merely says that the court Amay
assess@
attorney=s fees
in a parentage action; the only statutory limitation placed on this discretion
is that the attorney=s fees assessed must be Areasonable.@  See Tex.
Fam. Code Ann. ' 160.636(c).
To be entitled to a discretionary award of
attorney=s fees,
the movant must file with the court an affirmative pleading requesting them
unless the issue is waived or tried by consent. 
Klaver v. Klaver, 764 S.W.2d 401, 405 (Tex. App.CFort
Worth 1989, no writ).  Here, Aguilar made
his affirmative request for attorney=s fees
against Family to Family in his first amended petition, which he filed when the
child was still outside Texas as a result of Family to Family=s
actions.
2.     Statutory Basis for Attorney=s Fees
Award




Family to Family argues that the statute
providing for payment of attorney=s fees
in parentage actions is intended to apply to parents only.  However, it does not cite, and we have not
found, any authority for this proposition when the parentage action is filed by
the father in an effort to contest a nonparent=s
attempts to terminate his parental rights. 
While the statute does exclude governmental agencies from having
attorney=s fees
assessed against them, see Tex.
Fam. Code Ann. ' 160.636(d), the mere fact that
governmental agencies are excluded does not establish that the statute allows
assessment of attorney=s fees against parents
alone.  Under section 160.002, the family
code=s
general provision for assessment of attorney=s fees
in all suits affecting the parent-child relationship, nonparents involved in
the suit are equally subject to having attorney=s fees
assessed against them.  See, e.g.,
In re Cassey D., 783 S.W.2d 592, 597 (Tex. App.CHouston
[1st Dist.] 1990, no writ) (affirming award of attorney=s fees
against friend of child=s mother); Garner v. Garner,
673 S.W.2d 413, 415, 418 (Tex. App.CFort
Worth 1984, writ dism=d w.o.j.) (affirming award of
attorney=s fees
against grandparents); Yancey v. Koonce, 645 S.W.2d 861, 864-65 (Tex.
App.CEl Paso
1983, writ ref=d n.r.e.) (same).  The family code does not limit the parties
against whom the trial court may assess reasonable attorney=s fees
in a parentage action, so we decline to hold that the trial court abused its
discretion by assessing attorney=s fees
against Family to Family merely because Family to Family is not the baby=s
parent.




3.     Findings of Fact
The trial court made the following findings of
fact that reveal Family to Family=s role
in the dispute over the baby and a lack of candor on the part of Family to
Family in its efforts to push the adoption through:
4.     Prior
to the birth of the child . . . , [Aguilar] spoke by telephone with [Family to
Family] and advised [Family to Family] that he would not agree to an adoption
of his child. [Aguilar] was returning telephone calls from [Family to Family],
who had his correct telephone number. [Family to Family] never asked [Aguilar]
for his correct address.
 
5.     [Ray]
voiced concern to agents of [Family to Family] that [Aguilar] would not consent
to an adoption. [Ray] was told by agents for [Family to Family] that they only
had to show Adue diligence@.  They further told [Ray] that they would
publish notice in an Aitty bitty@ article that didn=t have to be in the
county where [Aguilar] resided.
 
. . . .
 
7.     On
June 19, 2003[,] [Family to Family] was advised by [Aguilar=s] attorney that a
lawsuit had been filed in Denton County, Texas on June 17, 2003 to establish
the paternity of [Aguilar].  
 
8.     [Family
to Family] prepared an Affidavit In Support of Citation By Publication for
service of process on Mr. Aguilar. [Family to Family] induced [Ray] to sign the
affidavit on June 19, 2003 even though they had [Aguilar=s] telephone number and
had already spoken to him.
 
9.     [Ray]
advised [Family to Family] that the address listed for Mr. Aguilar in the
Affidavit In Support of Citation By Publication was incorrect. [Ray=s] warning was
disregarded by [Family to Family].




10.   Despite
being previously advised of the pending lawsuit filed in Denton County[,]
[Family to Family] filed Suit To Terminate The Parent-Child Relationship
between the child . . . and [Ray] and [Aguilar].  This suit was filed in Fort Bend County,
Texas[,] on June 20, 2003.  The address
shown for service of process on Mr. Aguilar was the office of his attorney in
the instant case that had advised [Family to Family] of the previous Denton
County filing.
 
11.   [Family to Family] then transferred
possession of the child . . . to the prospective adoptive parents, . . . who
then removed the child to the State of Maryland.




Family to Family disputes the trial court=s
consideration of its statements and actions regarding Adue
diligence,@ the Aitty
bitty@
article, and the affidavit in support of citation by publication because
Aguilar acquired personal knowledge of Family to Family=s intent
to seek termination before the suit was filed. 
It further asserts that the trial court erred by ordering it to pay
Aguilar=s
attorney=s fees
because Aguilar would have filed his parentage action even if an adoption had
never been contemplated and because Family to Family was legally entitled to
seek termination of Aguilar=s
parental rights even without Aguilar=s
consent.  Nevertheless, the trial court=s
findings of fact indicate that the urgent nature of this paternity suit=s
filing, the involvement of additional parties beyond the parents, and the
extent of the ensuing litigation were circumstances created by Family to Family=s
actions.  As the trial court observed at
the hearing, A[W]ho knows what would have
happened if that first step [by Family to Family] had not been taken?@  Therefore, we cannot say that, under these
facts, Family to Family=s actions had no role in or
impact on the filing and course of this paternity suit.[2]




Family to Family also disputes the trial court=s
finding that Family to Family received notice of Aguilar=s Denton
County parentage action before it filed its Fort Bend County termination suit,
claiming that the trial court based its finding on comments made by Aguilar=s
attorney over controverting testimony from Family to Family=s
witnesses.  But Aguilar=s
attorney also requested the court to take judicial notice of testimony from a
prior hearing in this case, in which a witness testified that she contacted Family
to Family on June 19, 2003Cthe day
before Family to Family filed its termination suit in Fort Bend CountyCto
inform Family to Family that Aguilar had filed his Denton County lawsuit two
days earlier.  Family to Family did not
object to this request.  Furthermore,
issues of credibility were left to the trial court, as the finder of fact in
this case, and it was free to disbelieve Family to Family=s
witnesses.  See Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003) (stating that the fact
finder Ais the
sole judge of the credibility of witnesses and the weight to be given to their
testimony@).  
4.     Reasonableness of Attorney=s Fees
Award
Finally, Family to Family argues that the
attorney=s fees
award was not reasonable because testimony as to the amount of fees incurred
was unclear.  We disagree.  The court admitted into evidence detailed
billing records from Aguilar=s
attorney substantiating the amount of fees claimed.  Furthermore, because Aguilar=s
fitness to be awarded custody of the baby was a pivotal issue in this lawsuit,
we find nothing unreasonable in his attorney=s billing
for conversations held with Aguilar=s mother
and another member of her household, particularly when, as the attorney
testified, Aguilar=s family was Avery
involved@ in this
custody dispute.




Family to Family also argues that the attorney=s fees
award was unreasonable because Aguilar=s
attorney did not segregate expenses incurred in the Fort Bend County lawsuit
from expenses incurred in the Denton County parentage action.  In support, Family to Family cites Goheen
v. Koester, 794 S.W.2d 830, 836 (Tex. App.CDallas
1990, writ denied), which held that the trial court abused its discretion in
awarding attorney=s fees to the mother in a
custody dispute when the evidence showed that a portion of those fees were
incurred not in the attorney=s
representation of the mother but rather in the attorney=s
representation of the child=s
stepfather, who was seeking to adopt the child in the same lawsuit.  
Here, however, all the attorney=s fees
awarded by the trial court were incurred in the attorney=s
representation of Aguilar alone in his efforts to establish parentage and gain
custody of the baby.  We are not
persuaded that the trial court abused its discretion in awarding fees incurred
in relation to the Fort Bend County lawsuit merely because Family to Family
chose to assert its termination cause of action in a separate lawsuit in Fort
Bend County rather than in Denton County, which already had dominant
jurisdiction over the custody dispute.  See
Curtis v. Gibbs, 511 S.W.2d 263, 267 (Tex. 1974) (A[T]he
court in which suit is first filed acquires dominant jurisdiction to the
exclusion of other coordinate courts.@).  Family to Family=s
subsequent lawsuit involved the same parties and subject matter as the Denton
County lawsuit, so Denton County was the appropriate venue for Family to Family=s cause
of action.  See id.  Family to Family cannot avoid attorney=s fees
incurred by Aguilar in the dispute over custody of the baby boy merely by
bringing its claims in a separate, subsequent lawsuit that more appropriately
belonged in the first-filed Denton County proceeding.




Our decision does not, as Family to Family
claims, Aopen the
door to unending litigation@ against
adoption agencies.  The only issue in
this case is whether, in a parentage action, the family code allows assessment
of attorney=s fees against an adoption
agency; we have determined that it does. 
But the attorney=s fees award is not automaticCthe
trial court still must act reasonably and not arbitrarily in deciding to assess
attorney=s fees
against an adoption agency.  Here, the
trial court found Family to Family=s
actions Asloppy
at best and unconscionable at worst@; under
the singular facts of this case, we cannot conclude that the trial court abused
its discretion in ordering Family to Family to pay Aguilar=s
attorney=s
fees.  We overrule Family to Family=s fifth
issue.
IV. 
Conclusion
Having overruled all of Family to Family=s
issues, we affirm the trial court=s
judgment.
 
 
BOB
MCCOY
JUSTICE
 
PANEL B:   DAUPHINOT,
WALKER, and MCCOY, JJ.
 
DELIVERED: March 2, 2006




[1]Furthermore, attorney=s fees may be awarded in any suit arising under title
5 of the family code.  Tex. Fam. Code Ann. '
160.636(c).  Proceedings to establish
parentage fall under title 5.  See id.
' 160.601 (providing procedure for adjudicating
parentage and falling under chapter 160 of title 5 of the family code).  


[2]Family to Family also argues that the trial court
abused its discretion by basing its attorney=s fees award on Aguilar=s unpleaded, unproven allegations of fraud.  However, nowhere in the trial court=s
findings of fact and conclusions of law does the court state that Family to
Family committed fraud.  Accordingly, we
are not persuaded by this argument.


