                           COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                              NO. 02-12-00397-CV


FABIAN THOMAS                                                      APPELLANT

                                        V.

DENISE DANIEL                                                       APPELLEE


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          FROM THE 431ST DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant Fabian Thomas appeals the trial court’s order awarding

attorney’s fees in favor of appellee Denise Daniel. We affirm.

                               I. BACKGROUND

      The final divorce decree between Thomas and Daniel was entered on

September 23, 2011. During the divorce, the parties agreed to equally distribute

their retirement accounts. On March 19, 2012, Thomas appealed, complaining of
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       See Tex. R. App. P. 47.4.
several property division issues.    On June 29, 2012, Thomas filed a motion

asking the trial court to enter three Qualified Domestic Relations Orders

(QDROs). Thomas stated that he attached the three proposed QDROs for the

trial court’s signature, but the record does not show that the proposed QDROs

were attached to the motion. Thomas further asserted that he had emailed the

proposed QDROs to Daniel’s attorney, Brook Stuntebeck, but Stuntebeck would

not agree to the proposed QDROs.

      Pursuant to Thomas’s request the trial court scheduled a hearing on his

motion for entry of the QDROs for July 27, 2012. Thomas did not appear at the

hearing, but Stuntebeck did. 2      Due to the pending appeal, the trial court

dismissed Thomas’s motion.

      Thomas filed a subsequent motion to enter QDROs on August 10, 2012, in

which he referenced his prior proposed QDROs and once again asserted that he

had delivered them to Stuntebeck.        Stuntebeck again requested significant

corrections to the proposed QDROs.

      We dismissed Thomas’s appeal regarding the property division issues on

August 23, 2012, after he moved to voluntarily dismiss. Thomas v. Daniel, No.

02-12-00107-CV, 2012 WL 3600060, at *1 (Tex. App.—Fort Worth Aug. 23,

2012, no pet.) (mem. op.). Stuntebeck responded to Thomas’s second motion to


      2
        Thomas later explained that he did not appear because his appeal from
the divorce decree was still pending. He did not cancel the hearing with the court
or notify opposing counsel of his intent not to appear.


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enter the QDROs on August 24, 2012 and requested attorney’s fees, stating that

she had made multiple requests for Thomas to correct the proposed QDROs.

Stuntebeck attached to her response her correspondence with Thomas in which

she requested that Thomas make substantial corrections to the proposed

QDROs.    Thomas made the requested changes to the proposed QDROs on

August 30, 2012.

      On August 31, 2012, the trial court held a hearing on Thomas’s motion. At

the hearing, Stuntebeck requested $1,862.50 in attorney’s fees for the time she

spent reviewing Thomas’s proposed QDROs and for appearing at the hearings.

To support her request, Stuntebeck testified as to (1) the hourly rates of

everyone who worked on the case and (2) the extensive corrections she

requested to the proposed QDROs. Thomas objected to the “entire admission of

the attorney’s fees.”   He specifically argued that he originally prepared the

proposed QDROs, Stuntebeck’s edits were negligible, and he made the edits

only to satisfy Stuntebeck.    The trial judge stated that he would compare

Thomas’s proposed QDROs with the agreed QDROs that were finally presented

at the hearing in order to determine if the requested attorney’s fees were

reasonable.

      The trial court ultimately ordered that Thomas pay Stuntebeck’s attorney’s

fees in the requested amount by October 5, 2012. Thomas appealed this award

and now argues that the trial court abused its discretion by ordering attorney’s




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fees that were not statutorily authorized and by considering Stuntebeck’s

unsworn testimony in support of the award of attorney’s fees.

                                 II. DISCUSSION

                             A. UNSWORN TESTIMONY

      In his second issue, Thomas argues that the trial court abused its

discretion by allowing Stuntebeck’s unsworn testimony as to the amount of

attorney’s fees. During the hearing, Thomas objected to Stuntebeck’s attorney’s

fees request and argued that the amount was unreasonable because Stuntebeck

did not prepare the proposed QDROs, did not perform the work necessary to

have them approved by the plan administrators, and did not require extensive

changes to his proposed QDROs.            He never objected that Stuntebeck’s

testimony was unsworn.

      To preserve a complaint for appellate review, a party must have presented

to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if they are not apparent from the context of the

request, objection, or motion. Tex. R. App. P. 33.1(a); see also Tex. R. Evid.

103(a)(1). If a party fails to do this, error is not preserved, and the complaint is

waived.   Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g).

Because Thomas failed to object, he failed to preserve his complaint concerning

any failure to administer the oath. See Olsen v. Comm’n for Lawyer Discipline,

347 S.W.3d 876, 890 (Tex. App.—Dallas 2011, pet. denied) (holding appellant’s

failure to object to lawyer’s unsworn testimony as to attorney’s fees waived any


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claim that the lawyer’s testimony was inadmissible); De La Garza v. Salazar, 851

S.W.2d 380, 383 (Tex. App.—San Antonio 1993, no writ) (“[B]y failing to object to

the informal presentation of evidence appellant has not preserved the right to

complain about the absence of sworn evidence.”) We overrule issue two.

                    B. REASONABLENESS OF ATTORNEY’S FEES

      In his first issue, Thomas argues that the trial court abused its discretion by

awarding attorney’s fees to Daniel. Specifically, Thomas argues that (1) there is

no applicable statute authorizing attorney’s fees and (2) there is no evidence to

support the demand for attorney’s fees.         When determining an award of

attorney’s fees, a trial court must examine the language of the applicable statute

in order to decide whether attorney’s fees are discretionary or mandatory. When

a trial court “may” award reasonable attorney’s fees, the award is discretionary;

thus, neither party is entitled to attorney’s fees as a matter of law. See Schneider

v. Schneider, 5 S.W.3d 925, 930 (Tex. App.—Austin 1999, no pet.). Under family

code section 9.106, which applies to post-decree QDRO issues, an attorney’s fee

award is discretionary. Tex. Fam. Code Ann. § 9.106 (West Supp. 2012). In

order to be entitled to a discretionary award of attorney’s fees, the requesting

party must file a pleading making that affirmative request. See Klaver v. Klaver,

764 S.W.2d 401, 405 (Tex. App.—Fort Worth 1989, no writ).

      We review a non-mandatory attorney’s fees award for an abuse of

discretion. Smith v. McCarthy, 195 S.W.3d 301, 304 (Tex. App.—Fort Worth

2006, pet. denied) (op. on reh’g); Ross v. 3D Tower Ltd., 824 S.W.2d 270, 273


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(Tex. App.—Houston [14th Dist.] 1992, writ denied).      A trial court abuses its

discretion if the court acts without reference to any guiding rules or principles,

that is, if the act is arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609,

614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex. 2004). A trial

court also abuses its discretion by ruling without supporting evidence.      Ford

Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012).           But an abuse of

discretion does not occur when the trial court bases its decision on conflicting

evidence and when some evidence of substantive and probative character

supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex.

2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). We cannot

conclude that a trial court abused its discretion merely because we would have

ruled differently in the same circumstances. E.I. du Pont de Nemours & Co. v.

Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620.

      The reasonableness of attorney’s fees, which is a question of fact, can be

based on several factors.    Thomas v. Thomas, 917 S.W.2d 425, 437 (Tex.

App.—Waco 1996, no writ) (stating factors that may be considered are nature

and complexity of case, amount in controversy, amount of time and effort

required, expertise of counsel in arriving at a reasonable amount of attorney’s

fees, and trial judge’s expertise). The trial court may look at the entire record

when considering attorney’s fees. Chavez v. Chavez, 12 S.W.3d 563, 566 (Tex.

App.—San Antonio 1999, no pet.); Bloom v. Bloom, 767 S.W.2d 463, 471 (Tex.

App.—San Antonio 1989, writ denied).


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      At the hearing, Stuntebeck testified as to the applicable hourly rates and

the amount of work done on Thomas’s proposed QDROs. She further submitted

her billing records. Finally, the trial court took judicial notice of the court’s file and

compared Thomas’s proposed QDROs to the QDROs ultimately entered. The

process of completing the QDROs lasted for approximately seven months with

Stuntebeck requesting substantive changes for that entire period, which were

finally made the day before the hearing. Stuntebeck appeared at the hearing

requested by Thomas in July, which Thomas failed to appear at, and thereby

incurred attorney’s fees chargeable to Daniel. Stuntebeck performed work on the

proposed QDROS, including completely re-drafting one of Thomas’s proposed

QDROs. The trial court did not abuse its discretion by awarding attorney’s fees

as requested in a properly filed pleading in this proceeding to enter a post-decree

QDRO. See Tex. Fam. Code Ann. § 9.106; Schneider, 5 S.W.3d at 930; see

also Chavez, 12 S.W.3d at 566.          The evidence sufficiently supports the trial

court’s order. We overrule Thomas’s first issue.

                                  III. CONCLUSION

      Having overruled Appellant’s two issues, we affirm the trial court’s order.




                                                       LEE GABRIEL
                                                       JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and GABRIEL, JJ.

DELIVERED: July 18, 2013


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