Opinion issued June 12, 2014




                                     In The

                              Court of Appeals
                                    For The

                          First District of Texas
                            ————————————
                              NO. 01-13-00848-CV
                           ———————————
                      NANCY C. KENDRICK, Appellant
                                        V.
                          PAUL SEIBERT, Appellee


                   On Appeal from the 311th District Court
                            Harris County, Texas
                      Trial Court Case No. 2009-30034


                                 OPINION

      Appellant, Nancy C. Kendrick, appeals the trial court’s judgment in a suit to

modify the parent-child relationship and agreement incident to divorce. In three

issues, Kendrick argues the evidence is legally insufficient to establish that the

attorney’s fees awarded were reasonable.
      We affirm.

                                    Background

      Paul Seibert and Nancy Kendrick’s divorce was finalized on December 22,

2009. Seibert and Kendrick agreed to the divorce decree, and both approved the

decree as to both form and substance. The agreement provides, “To the extent

permitted by law, the parties stipulate the agreement is enforceable as a contract.”

      The agreement gave Kendrick the right to maintain possession of their

children’s passports. The passports provision required Kendrick to deliver the

passports to Seibert within ten days of proper notification of intent to travel outside

the United States with the children. The passports provision also established that,

if Kendrick or Seibert violated those provisions, he or she would be liable for costs

incurred due to noncompliance, including attorney’s fees.

      In January 2013, Seibert provided Kendrick with notice of his intent to take

their children to Canada for three days in June 2013. Although she signed the

notice before a notary and returned it to Seibert, Kendrick told Seibert that she

would not deliver the children’s passports to him. Seibert sent Kendrick another

notice of his intent to take the children out of the country by certified mail. Seibert

then filed a suit to modify the parent child relationship and agreement incident to

divorce. Kendrick was served on June 3, 2013.




                                          2
      Kendrick did not file an answer to the suit, but she did deliver the children’s

passports to Seibert two days before the travel date. The trial court held a trial on

September 6, 2013. Kendrick did not appear. Among other matters, Seibert

testified about the attorney’s fees incurred due to Kendrick’s violation of the

passport provision in the agreed divorce decree. Seibert testified that he had paid

his attorney $2,500 in fees and $262 in other costs in his efforts to obtain the

passports from Kendrick.

      The trial court rendered judgment on the matter. In pertinent part, the trial

court ordered Kendrick to pay Seibert’s attorney $2,500 in attorney’s fees and

$262 in costs. Kendrick subsequently filed this notice of appeal.

                               Standard of Review

      “The final test for legal sufficiency must always be whether the evidence at

trial would enable reasonable and fair-minded people to reach the verdict under

review.”   City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005).             In

performing a legal-sufficiency review, we must credit favorable evidence if

reasonable fact finders could credit it and disregard contrary evidence unless

reasonable fact finders could not disregard it. Id. “If the evidence . . . would

enable reasonable and fair-minded people to differ in their conclusions, then [fact

finders] must be allowed to do so.” Id. at 822. “A reviewing court cannot

substitute its judgment for that of the trier-of-fact, so long as the evidence falls



                                         3
within this zone of reasonable disagreement.” Id. Although the reviewing court

must consider evidence in the light most favorable to the verdict, and indulge every

reasonable inference that would support the verdict, if the evidence allows only

one inference, neither fact finder nor the reviewing court may disregard the

inference. Id. An appellant attacking the legal sufficiency of an adverse finding

on an issue for which she did not have the burden of proof must demonstrate that

there is no evidence to support the adverse finding. Croucher v. Croucher, 660

S.W.2d 55, 58 (Tex. 1983).

                                 Attorney’s Fees

      In her three issues, Kendrick argues the evidence is legally insufficient to

support the award of attorney’s fees because there is no evidence that the fees were

reasonable.    Seibert acknowledges that there was no evidence of the

reasonableness of the attorney’s fees presented at trial but argues that such

evidence was not necessary to support the award.

      Generally, attorney’s fees are not recoverable from an opposing party unless

authorized by statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d

299, 310 (Tex. 2006). Critical to our inquiry, then, is the determination of under

what authority Seibert sought and obtained attorney’s fees. Seibert argues that the

agreed decree is enforceable as a contract, and, accordingly, he can recover

attorney’s fees pursuant to section 38.001 of the Texas Civil Practice and



                                         4
Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (Vernon 2008).

Kendrick argues that this section is inapplicable in this case because, “[t]his is a

suit to enforce court orders,” not “a suit based on contract.” We hold that those

two are not necessarily mutually exclusive.

       In a divorce proceeding, the parties can enter into an agreement over the

matters to be resolved in the divorce. See TEX. FAM. CODE ANN. § 7.006 (Vernon

2006).      Similarly, the parties can enter into agreements concerning matters

affecting the parent-child relationship. See TEX. FAM. CODE ANN. §§ 153.007,

154.124 (Vernon 2014). For matters concerning the divorce and determination of

the marital estate, the agreement is enforceable as a contract. Allen v. Allen, 717

S.W.2d 311, 313 (Tex. 1986); Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex.

App.—Dallas 2008); see also Rich v. Rich, No. 01-03-00078-CV, 2003 WL

21027940, at *2 (Tex. App.—Houston [1st Dist.] May 8, 2003, no pet.) (holding

agreed divorce decree is enforceable as contract and as judgment); Hicks v. Hicks,

348 S.W.3d 281, 283 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding,

because parties entered into agreed divorce decree, it is treated as contract between

parties).

       For matters concerning the parent-child relationship, terms of the agreement

concerning conservatorship, access to the child, or child support are not

enforceable as a contract. See TEX. FAM. CODE ANN. §§ 153.007(c), 154.124(c).



                                         5
Any other terms concerning the parent-child relationship can be enforced as a

contract. See In re W.R.B., No. 05-12-00776-CV, 2014 WL 1008222, at *4 (Tex.

App.—Dallas Feb. 20, 2014, no pet. h.) (holding term concerning post-majority

support is enforceable as contract).

      The divorce decree was agreed to by the parties. It was signed by Kendrick

and Seibert, both of them approving the decree as to form and substance. The

agreement specifically provides, “To the extent permitted by law, the parties

stipulate the agreement is enforceable as a contract.” The provision at issue—the

passport provision—concerns the parent-child relationship, but it does not concern

conservatorship, access to the child, or child support. Because the divorce decree

was agreed to by the parties and the passport provision does not concern a matter

that cannot be enforced as a contract, we hold it is enforceable as a contract.

      Section 38.001 provides, “A person may recover reasonable attorney’s fees

from an individual . . . in addition to the amount of a valid claim and costs, if the

claim is for . . . an oral or written contract.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 38.001(8). Kendrick argues that Seibert did not present any evidence to establish

that the $2,500 in attorney’s fees was reasonable. Siebert acknowledges that he did

not present any evidence of the reasonableness of the fees at trial but argues the

evidence is still legally sufficient. We agree.




                                           6
      “The court may take judicial notice of the usual and customary attorney’s

fees and of the contents of the case file without receiving further evidence in a

proceeding before the court.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.004(1)

(Vernon 2008). “It is presumed that the usual and customary attorney’s fees for a

claim of the type described in Section 38.001 are reasonable. The presumption

may be rebutted.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.003 (Vernon 2008).

“The trial court’s own proceedings together with the fact that it may take judicial

notice of usual and customary fees constitute some evidence to support the award

of appellate attorney’s fees.” Gill Sav. Ass’n v. Chair King, Inc., 797 S.W.2d 31,

32 (Tex. 1990). Appellate courts can presume that the trial court took judicial

notice of the case file and of the usual and customary fees pursuant to section

38.004. Vaughn v. Tex. Emp’t Comm’n, 792 S.W.2d 139, 144 (Tex. App.—

Houston [1st Dist.] 1990, no writ).       When there is no evidence to rebut the

presumption in section 38.003, “no further evidence [is] required to establish

reasonableness of attorney’s fees.” Id.

      Kendrick argues that these statutory provisions do not apply because the trial

court can only take judicial notice of the case file and usual and customary fees in

“a proceeding before the court” or “a jury case in which the amount of attorney’s

fees is submitted to the court by agreement.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 38.004. It is undisputed that there was no jury trial, so the second option is not



                                          7
applicable. See id. § 38.004(2). Kendrick argues the first option is not available

either, relying on cases establishing that these provisions do not apply to summary

judgment proceedings. See Coward v. Gateway Nat’l Bank of Beaumont, 525

S.W.2d 857, 858 (Tex. 1975); Gen. Elec. Supply Co. v. Gulf Electroquip, Inc., 857

S.W.2d 591, 601 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Seibert did

not obtain attorney’s fees in a summary judgment proceeding. Accordingly, these

cases are inapplicable.

      Regardless of whether the proceeding below is characterized as a hearing or

a trial, it indisputable that it was “a proceeding before the court.” There was no

jury. Evidence was presented.1 The trial court made factual determinations and

ruled accordingly. We hold section 38.004 applies. See TEX. CIV. PRAC. & REM.

CODE ANN. § 38.004(1).

      Kendrick and Seibert’s divorce decree was an agreed decree, making it both

a contract and a judgment. See Schwartz, 247 S.W.3d at 806; Rich, 2003 WL

21027940, at *2. Kendrick violated the contract’s terms concerning delivery of the

children’s passports.     Seibert filed suit seeking enforcement of the passport

provisions. Accordingly, Seibert’s suit included a claim for a written contract.

1
      Kendrick also relies on Garcia v. Martinez, 894 S.W.2d 806, 807 (Tex. App.—
      Corpus Christi 1994, no writ) for the proposition that a trial court cannot
      determine reasonableness of attorney’s fees based on judicial knowledge without
      the benefit of an evidentiary hearing on the matter of attorney’s fees. Given that
      evidence of attorney’s fees was presented, we hold this case also has no
      application here.

                                           8
Section 38.001 allows a party to recover reasonable attorney’s fees for such a

claim. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8). When section 38.001

applies, a trial court can take judicial notice of the case file and of the usual and

customary attorney’s fees, and the usual and customary fees are presumed to be

reasonable. See id. §§ 38.003, .004(1). Taking judicial notice of these two things

is legally sufficient to support a determination that the attorney’s fees award was

reasonable. Gill Sav. Ass’n, 797 S.W.2d at 32.

      We hold the evidence is legally sufficient to establish that the trial court’s

award of attorney’s fees incurred in enforcing the passport provision. We overrule

Kendrick’s three issues.

                                    Conclusion

      We affirm the judgment of the trial court.




                                             Laura Carter Higley
                                             Justice

Panel consists of Justices Jennings, Higley, and Sharp.




                                         9
