                                                                                       ACCEPTED
                                                                                   14-17-00938-CV
                                                                   FOURTEENTH COURT OF APPEALS
                                                                                HOUSTON, TEXAS
                                                                                 5/14/2018 2:19 PM
                                                                             CHRISTOPHER PRINE
                                                                                            CLERK




                                                                   FILED IN
                                                            14th COURT OF APPEALS
                                                               HOUSTON, TEXAS
                                                            5/14/2018 2:19:14 PM
                                                            CHRISTOPHER A. PRINE
           CAUSE NO. 14-17-00938-CV                                  Clerk




               IN THE FOURTEENTH COURT OF APPEALS
                        AT THE STATE OF TEXAS


                              REN V. ZHANG



              Original Proceeding from the 245th District Court,



                   The Honorable Roy L. Moore, Presiding



                      Appellee’s Brief on the Merits




Yi Ren
4114 Placid Stream Ct.,
Houston, Texas 77059
Telephone: 713-820-8964
Email: yirenlegal@gmail.com
Pro Se Litigant




                                      1
                                         TABLE OF CONTENTS

IDENTITY OF PARTIES .......................................................................................3

TABLE OF AUTHORITIES ..................................................................................4

REFERENCE CITATION GUIDE .......................................................................5

STATEMENT OF FACTS ......................................................................................8

SUMMARY OF THE ARGUMENT ...................................................................19

ARGUMENT ..........................................................................................................21

  1. Tong Zhang waived any complaint about the
  adequacy of Yi Ren’s pleadings by failing to raise its
  objection to the trial court. ....................................................................................21
  2. Tong Zhang presumed that the trial court awarded
  attorney’s fees based upon Texas Family Code 106.002
  and ignored the other authorities of fees award as
  sanctions. No proof of necessity and reasonableness of
  attorney’s fees is required when attorney’s fees are
  assessed as a sanction............................................................................................22
  3. The trial court had more than a scintilla of evidence
  to award attorney’s fees. .......................................................................................23
  4. The trial court did not abuse its discretion in
  awarding amicus attorney’s fees in a non-enforcement
  suit characterized as child support. .......................................................................24
PRAYER .................................................................................................................27




                                                            2
IDENTITY OF PARTIES


Appellant:
             Tong Zhang
             418 Starleaf Lane,
             Pearland, Texas 77584


Appellant Counsels:
Xenos Yuen                                 David J. Mullican, Jr.
State Bar No. 22232550                     State Bar No. 14651200
Seigel Yuen & Honore, PLLC                 Seigel Yuen & Honore, PLLC
6100 Corporate Drive, Suite 580            6100 Corporate Drive, Suite 580
Houston, Texas 77036                       Houston, Texas 77036
Tel: 713-541-6256                          Tel: 713-541-6256
Email: Litxy@yuenlawoffice.com             Email: dm@yuenlawoffice.com

Trial Counsel:
David J. Mullican, Jr.
State Bar No. 14651200
Seigel Yuen & Honore, PLLC
6100 Corporate Drive, Suite 580
Houston, Texas 77036
Tel: 713-541-6256
Email: dm@yuenlawoffice.com

Appellee:
             Yi Ren
             Pro Se Party
             4114 Placid Stream Court
             Houston, Texas 77059
             Tel: 713-820-8964
             Email: yirenlegal@gmail.com



                                      3
TABLE OF AUTHORITIES
Cases

Lowther v. Lowther, 578 S.W.2d 560, 562 (Tex. Civ.
  App.—Waco 1979, writ ref’d n.r.e.) ....................................................................20
Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d
  537, 575-76 (Tex. App.—San Antonio 2011, no pet.) .........................................21
Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004) .......................................22
Nath, 446 S.W.3d at 361 ..........................................................................................22
Holt Atherton Industries, Inc. v. Heine, 835 S.W.2d 80,
  83 (Tex.1992)........................................................................................................22
In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)......................................................22
Unifund, 299 S.W.3d at 97.......................................................................................22
Tucker v. Thomas, 419 S.W. 3d 292 (Tex., 2013) ...................................................23
Hardin, 161 S.W.3d at 24-27 ...................................................................................24
In re H.V., 252 S.W.3d at 327, n. 55........................................................................24
In re J.A.D., 2010 WL 2649961, at *4.....................................................................24
In re W.J.S, 35 S.W.3d at 277-278...........................................................................24

Statutes

Texas Rules of Appellate Procedure 38.2 (a)(1)(B) ......................................... 5, 6, 7
Texas Rules of Appellate Procedure 38.1 (d) ............................................................5
Texas Rules of Appellate Procedure 38.1(f) ..............................................................7
Texas Family Code section 106.002 ................................................................. 18, 21
Texas Rules of Appellate Procedure 33.1. ...............................................................20
Texas Rules of Civil Procedure 90. .........................................................................20
Texas Family Code section 156.005 ........................................................................21
Tex. Fam. Code section 151.001(c) .........................................................................24

                                                           4
Texas Family Code section 107.023(d) ............................................................ 24, 25




REFERENCE CITATION GUIDE
In lieu of using the full name of the parties, this Brief may refer to the parties as
follows:

Tong Zhang                 “Appellant”

Yi Ren                     “Appellee”

This Brief uses the term “Appellant” or “Tong Zhang” to refer both to Tong Zhang
and his attorneys of records.



The Record on Appeal

This brief will refer to the record as follows:

Clerk’s Record                                                                 “CR_”

Deposition Testimony in Clerk’s Record                                         “CR_, [Name] Dep”

Reporter’s Record                                                              “RR_”

Appellant’s Brief                                                               “App’s Br.”




                                                   5
                          STATEMENT OF THE CASE

        Yi Ren objects to the Statement of the Case in Tong Zhang’s Brief of

Appellant. See Tex. R. App. P. 38.1 (d). Pursuant to Rule 38.2 (a)(1)(B) of the

Texas Rules of Appellate Procedure, Yi Ren offers the following Statement of the

Case:

Nature of the Case:

        This is an appeal of awarding attorney’s fees and characterizing amicus

attorney’s fees as additional child support. The appellant alleged that the trial court

err in awarding attorney’s fees because appellee was not entitled an award of

attorney’s fees. In addition, the appellant alleged that the trial court abused its

discretion in awarding amicus attorney’s fees as additional child support.

Respondent:

        Honorable Roy L. Moore, 245th Judicial District Court, Harris County,

Texas

Respondent’s Action:

        On October 30, 2017, the trial court granted Tong Zhang’s voluntary

nonsuite for modification of conservatorship and heard Yi Ren’s counterpetition

for modification of child support and medical provision for the child. The trial


                                          6
court entered a final judgement in favor of Yi Ren. The trial court ordered Tong

Zhang to (1) pay increased child support, (2) pay retroactive child support, and (3)

provide health insurance for the child. The trial court also awarded Yi Ren $10,000

of attorney’s fees as debt and $9,693.17 of amicus attorney’s fees as additional

child support.




                              ISSUES PRESENTED

     Pursuant to Rule 38.2(a) of the Texas Rules of Appellate Procedure, Yi Ren

objects to Tong Zhang’s characterization of the issues presented in this appeal. Yi

Ren identifies the following issues in this appeal:

  1. Did Tong Zhang waive its complaint about the adequacy of Yi Ren’s

     pleading by failing to raise its objection to the trial court?

  2. Did the trial court err in awarding attorney’s fees as sanctions without proof

     of reasonableness and necessity of attorney’s fees?

  3. Did the trial court have more than a scintilla of evidence to award attorney’s

     fees?

  4. Did the trial court abuse its discretion in awarding amicus attorney’s fees in a

     non-enforcement suit characterized as child support?


                                           7
                           STATEMENT OF FACTS

      Yi Ren objects to the Statement of Facts in Tong Zhang’s Brief of Appellant.

See TEX. R.APP. P. 38.1(f). Pursuant to Rule 38.2(a)(1)(B) of the Texas Rules of

Appellate Procedure, Yi Ren offers the following Statement of Facts:

      A. Introduction

      Appellant Tong Zhang and Appellee Yi Ren divorced in November 2010.

The Final Agreement of Decree, entered on November 1, 2010, ordered that Tong

Zhang and Yi Ren have joint managing conservatorship of the child (Daniel

Zhang), and Yi Ren has exclusive rights to designate Daniel Zhang’s primary

residence within Harris County. See CR1, page 19, 22. The decree also ordered

that Tong Zhang pay $300 child support per month without medical provision

obligation. See CR1, page 38, 42, 43.

      In September of 2015, Tong Zhang started his new employment at

University of Houston. See CR2, page 253-254. On September 24, 2015, the same

month he started his new employment, Tong Zhang filed his Petition for

Modification of Parent-Child Relationship to seek sole managing conservatorship,

or in the alternative, joint managing conservatorship with the exclusive right to

designate the child’s primary residence. See CR1, page 68-75.




                                        8
      On September 29, 2015, Yi Ren filed her Answer to generally deny all of

Tong Zhang’s pleaded allegations. She also filed her counterpetition to seek an

increase of child support and Tong Zhang’s medical provision for the child. See

CR1, page 91-99. Both parties requested the trial court to award attorney’s fees in

their pleadings. See CR1, page 74, 91, 98.

      The trial court appointed an Amicus Attorney, Amy N. Lacy, on April 28,

2016. The lawsuit of modifying conservatorship experienced 24-month discovery.

Both parties participated oral depositions in August 2016. The final trial was set on

October 30, 2017. On October 6 and October 24, 2017, Tong Zhang filed two

motions for continuance. See CR2, page 349-352, 401-404. Both two motions were

denied by the trial court after hearings.

      On October 30, 2017, the day of the trial, Tong Zhang did not appear at the

trial in person. His attorney of record, David J. Mullican Jr., represented Tong

Zhang to announce that Tong Zhang voluntarily nonsuited his petition for

modification of conservatorship. See CR2, page 415; RR1. The trial court moved

to Yi Ren’s counterpetition. David J. Mullican Jr. represented Tong Zhang to

announce ready for trial. See RR1.

      At trial, Yi Ren testified that she spent $4,292 of attorney’s fees because

Tong Zhang and his attorneys failed to comply with the discovery rules and abused


                                            9
the discovery process, including failure to appear at hearings, being late at hearings,

failure to respond discovery requests, and failure to comply with the court order.

She also testified that she spent $7,306 attorney’s fees to defense Tong Zhang’s

allegations which had no merits, such as Tong Zhang testified in his deposition that

he had no any evidence to prove his allegation of child abuse. Tong Zhang did not

rebut Yi Ren’s testimonies; he presented no evidence at all. See RR1.

      The trial court entered a final judgement to order Tong Zhang: 1) pay

guideline child support, 2) pay retroactive child support, 3) provide health

insurance for the child, Daniel Zhang, 4) pay Yi Ren $10,000 of attorney’s fees

with interest of 5% per annual until paid in full, 5) pay Yi Ren $9693.17 of amicus

attorney’s fees with interest of 6% per annual as additional child support until paid

in full, and 6) pay amicus attorney $3667.7 of amicus attorney’s fees with interest

of 6% per annual as additional child support until paid in full. See CR2, page 443-

445, 454-456.

      Tong Zhang appealed to overturn the trial court’s judgement in awarding

$10,000 of attorney’s fees as debt and characterizing awarded amicus attorney’s

fees as additional child support. The amicus attorney Amy Lacy was not identified

as appellee in this appeal. To date, neither Motion for New Trial nor Request for

Findings of Fact and Conclusions of Law has been filed.



                                         10
      B. Discovery Violations

1. Yi Ren filed her first Motion to Compel Discovery and for Sanctions on January

   6, 2016, and identified that Tong Zhang incompletely respond Yi Ren’s request

   for disclosure under Rule 194. See CR1, page107-110.

2. Yi Ren filed her second Motion to Compel Discovery and for Sanctions on

   December 15, 2016, and identified that Tong Zhang (1) failed to comply with

   signed Rule 11 Agreement and (2) failed to respond Yi Ren’s Second Request

   for Production and Inspection. See CR1, page 128-130.This motion was heard

   and granted on March 28, 2017. See CR2, page 463.

3. Yi Ren filed her third Motion to Compel Discovery and for Sanctions on May 1,

   2017, and identified that Tong Zhang failed to respond her third request for

   production and inspection. See CR1, page 155-157.

4. Yi Ren filed her Motion for Contempt on May 2, 2017. Yi Ren identified that

   Tong Zhang failed to comply with the court’s discovery order entered on April

   12, 2017. See CR1, 158-159.

5. In Yi Ren’s objection, filed on October 9, 2019, to Tong Zhang’s motion for

   continuance, she identified that Tong Zhang and his counsels: “(1) appeared

   two-hour late at hearing on Motion for Mediation and Motion to Compel

   Production on January 29, 2016; (2) failure to appear at the Temporary Orders

   hearing on March 9, 2016. Judge Cooper advised that if requested, attorney’s


                                       11
  fees would be awarded on final orders for Petitioner’s failure to appear at this

  hearing; (3) several-hour late appeared at hearing on the Temporary Order

  hearing on March 30, 2016. The hearing had to be reset due to the late arrival of

  Tong Zhang and his counsel; (4) spent significant time in Yi Ren’s deposition

  to ask irrelevant questions and argued with Yi Ren purely for the purpose of

  harassment. Yi Ren filed Motion for Protective Order on August 1, 2016; (5)

  failure to appear at hearing on Tong Zhang’s Motion to Compel Mental

  Examination on April 21, 2017; (6) filed frivolous Motion to Compel Mental

  Examination purely for the purpose of delay. The motion was denied by court

  on May 12, 2017 for a lack of factual basis.” See CR2, page 357-360.

6. In Yi Ren’s objection, filed on October 24, 2017, to Tong Zhang’s Second

  Motion for Continuance, she alleged that Tong Zhang hired six attorneys to take

  turns to make efforts to delay the case:

     “Ms. Davina Carson Wittick made improper objections to unobjectable

     discovery requests, failed to appear at hearings, and seriously late to appear

     at hearings. When Respondent filed her motion to compel discovery and for

     sanctions, Mr. Andrew Gass replaced Ms. Davina Carson Wittick. Mr.

     Xenos Yuan spent significant time to ask a bunch of irrelevant questions to

     harass Respondent in her oral deposition. When Respondent filed Motion for

     Protective Order to against Mr. Yuen, Mr. Gass took the case alone. Mr.


                                        12
     Gass signed Rule-11 Agreement, but failed to comply with the agreement.

     When Respondent filed her second motion to compel discovery and for

     sanctions, Ms. Kelley Austin replaced Mr. Gass. Ms. Kelley Austin failed to

     respond Respondent’s second set of interrogatories, requests for disclosure,

     and requests for production. Ms. Kelley also filed a frivolous motion for

     sanctions for the purpose of harassment. When Respondent filed her Motion

     for Sanction to against Ms. Kelley Austin, Mr. Eric Gruetzner replaced Ms.

     Kelley Austin. Mr. Eric Gruetzner failed to respond any of Respondent’s

     requests for discovery. After three months, Mr. Xenos Yuen replaced Mr.

     Eric Gruetzner again. Mr. Yuen failed to comply with the Court’s order to

     compel discovery, failed to appear at his hearing on Motion for Mental

     Examination, and made improper objections to Respondent’s requests for

     admission. When Respondent moves to motion for sanctions to against Mr.

     Xenos Yuen, Mr. David Mullican replaced Mr. Xenos Yuen. Six days before

     the trial, Mr. David Mullican claimed that he has mental disability to

     prosecute the litigation and sought continuance of discovery.” See CR2,

     page 395-396.

     C. Allegations without merit

     On June 4, 2015, the ATTORNEY GENERAL OF TEXAS filed a suit for

Modification of Child Support Order and requested Tong Zhang to produce his

                                      13
financial documents, Pursuant to Texas Rules of Civil Procedure 196. See CR1,

page 60-63. Tong Zhang’s counsel of record, Xenos Yuen, represented Tong

Zhang and filed Answer to generally deny all requests of ATTORNEY GENERAL

OF TEXAS. See CR1, page 66.

      On September 24, 2015, the same month he started his new employment,

Tong Zhang filed his original petition to seek modification of conservatorship. In

his original petition, Tong Zhang alleged that (1) Yi Ren “admitted” that her

husband had abusive behaviors against the child; (2) the child was living in an

unstable living environment because Yi Ren moved several times; (3) Yi Ren

emotionally hurt the child’s relationship with Tong Zhang; (4) it is in the best

interest of the child if the child lived with Tong Zhang because Tong Zhang took

care of the child when the child was an infant, as well as (5) Tong Zhang made

every effort for parental cooperation. See CR1, page 68-75.

      On October 11, 2017, Tong Zhang filed his 1st amended petition, and limited

his allegations to: (1) Yi Ren moved numerous times since November 1, 2010,

which resulted in changes of the child’s living environment and child care

programs; and (2) Yi Ren “admitted” that her husband had emotional abusive

behaviors against the child. See CR2, page 376-381. All the other allegations in

original petition were omitted.



                                        14
        Yi Ren raised her objection to Tong Zhang’s allegation of child abuse, and

claimed that Tong Zhang made a false statement that Yi Ren “admitted” her

husband’s abusive behavior against the child. See CR2, page 383.

        On October 21, 2017, ten days after his 1st amended petition, Tong Zhang

filed his 2nd amended petition. He kept two allegations in 1st amended petition, and

added one more allegation that there is very little communication, interaction and

bonding between the child and his step-father (Yi Ren’s husband). See CR2, page

386-392.

              1. Emotional child abuse

        On August 24, 2016, Tong Zhang attended an oral deposition. In his

deposition, he testified that he had no evidence as to child abuse. He did not know

what specific abusive behavior had been conducted, and the child had not

complained the step-father’s behaviors to him. He alleged child abuse because Yi

Ren used the term of “emotional abuse” in a conversation with him in April of

2014.

        See CR2, page 233-237, Tong Zhang Dep:

              Q. Okay. Okay. You mentioned some concerns that you
                 have about Yi Ren's husband and him being abusive
                 to Daniel. Can you go into detail about how he
                 abuses Daniel?


                                         15
A. It's 2000- I think it's -- I think it's April of 2014. I
   don't remember exactly. But he called me.
Q. I'm sorry. You say he called you?
A. Yeah. He called me. She said it. It separated husband.
   I said why? Because, you know, I think if Daniel
   have a good family, it's good for him. But she abused
   Daniel.
Q. And did she go into about what this abuse was?
A. I asked her, but she refused to come for me.
……
Q. Has she ever told you –since then, has she told you
   he’s continuing to abuse Daniel?
A. No.
Q. And she didn’t go into detail that day about what she
   meant by abuse?
A. I asked, but she didn’t answer me.
Q. Has Daniel ever expressed to you that he’s being
   abused by Yi Ren’s husband?
A. Daniel just tell me she don’t—she don’t talk with—
Q. Who doesn’t talk?
A. Daniel don’t talk with too many child.
……
Q. Has Daniel ever told you that Yi Ren’s husband
   physically abuses him?
A. Daniel, no.
……
Q. Has Daniel ever said that Yi Ren’s husband called him
   names?
A. No.


                            16
             Q. Has he ever said that Yi Ren’s husband makes fun of
                him?
             A. No.
             Q. Has he ever said that he shouts at him or screams at
                him?
             A. No.
             Q. Other than Yi Ren telling you in April of 2014, that
                her husband abused Daniel, do you have any other
                evidence that may support that Yi Ren’s husband
                emotionally abuses Daniel?
             A. You mean the evidence, right?
             Q. Right.
             A. Right now, I don’t know. But we will figure out later.
                We will discover it.
             Q. Okay. And how do you plan to do that?
             A. Right now, no.
             ……
             Q. That’s what your entire case is based on, is a comment
                 two years ago where she said he abused Daniel?
             A. Yes.


      By reviewing the record, no other evidence as to child abuse. No cause has

been disclosed why Tong Zhang waited for 17 months to allege child abuse if Yi

Ren used the term of “emotional abuse” in April of 2014. Except the parties, no

witness was identified to testify child abuse.

             2. Unstable living environment of the child



                                          17
      In Tong Zhang’s deposition, he testified that the last time the child changed

school was in January of 2014. The child was able to stay at the same school since

his Kindergarten program. Tong Zhang thought it was good to the child.

      See CR2, page 229-233, Tong Zhang Dep.:

            Q. Do you know the last time Daniel changed schools
               was?
            A. It’s January 2014 I think. Yeah. Because—
            Q. In kindergarten?
            A. Yes. Since he changed schools, I moved to my house.
            ……
            Q. When he started kinder? Where was he?
            A. Kindergarten is the Brookwood.
            Q. Was he at Brookwood in 1st grade?
            A. Yes.
            Q. Is he at Brookwood now?
            A. Yes.
            Q. So he’s been at the same school for—
            A. Since Kindergarten.
            ……
            Q. Okay. Does it show some stability—consistency that
               he’s been at the same school for about two years?
            A. Yeah. I think it’s good for him because I always
               encourage him, you know, have a good relationship
               with his classmates, also education, make friends.




                                        18
      At trial, Yi Ren testified that she had not moved for years but Tong Zhang

recently moved before the trial. See RR1. No other evidence in record was related

to the allegation of unstable living environment. No cause has been disclosed why

Tong Zhang waited for 21 months to allege unstable living environment if the

child’s last time change of school was occurred in January of 2014. Except the

parties, no witness was identified to testify the child’s living environment.

             3. The child’s relationship with his step-father

      In Tong Zhang’s deposition, he testified that he only met the step-father

once. See CR2, page 238, Tong Zhang Dep.:

             Q. Have you ever met Yi Ren’s husband?
             A. Yes. I think one time, only one time.
      By reviewing the record, no other evidence related to Tong Zhang’s

allegation of the child’s relationship with his step-father. Except the parties, no

witness was identified to testify the relationship between the child and his step-

father.


                       SUMMARY OF THE ARGUMENT

1. Yi Ren was entitled an award of attorney’s fees.

      Tong Zhang argued that the trial court erred in awarding Yi Ren attorney’s

fees, because Yi Ren was not entitled an award of attorney’s fees under Texas


                                          19
Family Code section 106.002. Specifically, Tong Zhang argued that Yi Ren (1)

failed to identify the specific authority and facts for attorney’s fees in her pleading,

and (2) failed to prove the necessity and reasonableness of attorney’s fees.

      Here, there were no findings of fact and conclusions of law entered to

support Tong Zhang’s theory that the trial court awarded attorney’s fees based

upon Texas Family Code section 106.002. Yi Ren disagrees with Tong Zhang’s

theory because his presumption ignores authorities for the fee award as sanctions.

Tong Zhang waived any complaint about the adequacy of Yi Ren’s pleading by

failing to raise its objection to the trial court. Moreover, proof of necessity and

reasonableness is not required when assessing attorney’s fees as sanctions. By

reviewing the record, the trial court had more than a scintilla of evidence to award

attorney’s fees. As conclusion, Yi Ren was entitled an award of attorney’s fees.

2. The trial court did not abuse its discretion in awarding amicus attorney’s

fees in modification suit characterized as child support.

      Tong Zhang argued that the trial court abused its discretion in awarding

Amicus attorney’s fees in modification suit characterized as child support, because

the Supreme Court in Tucker reasoned that the trial courts have no inherent

authority to characterize attorney’s fees as additional child support. Yi Ren

disagrees with Tong Zhang’s argument because Tong Zhang applied improper case


                                          20
law. The Supreme Court in Tucker only reviewed attorney’s fees as additional

child support, and expressed no opinion on amicus attorney’s fees as additional

child support. The trial courts in modification suits under Chapter 156 of the

Family Code had discretion to characterize an award of amicus attorney’s fees as

necessaries and, as necessaries, had discretion to award fees as additional child

support. Therefore, the trial court did not abuse its discretion in awarding amicus

attorney’s fees as additional child support. This issue should be overruled by this

court.


                                    ARGUMENT

   1. Tong Zhang waived any complaint about the adequacy of Yi Ren’s
      pleadings by failing to raise its objection to the trial court.



         Absent fundamental error, an appellant may not complain about any alleged

error that it failed to bring to the attention of the trial court “by a timely request,

objection or motion.” Tex. R. App. P. 33.1. Pleading defects do not rise to the

level of fundamental error. Any alleged “insufficiency of a pleading cannot be

raised for the first time on appeal.” Lowther v. Lowther, 578 S.W.2d 560, 562

(Tex. Civ. App.—Waco 1979, writ ref’d n.r.e.). See Tex. R. Civ. P. 90.

         If Tong Zhang truly believed that Yi Ren’s failed to identify authorities and

facts for recovery of attorney’s fees, then Tong Zhang should raise his objection


                                           21
and give Yi Ren opportunity to amend its pleadings. Tong Zhang, however, never

raised any timely objection claiming, as it does now on appeal, that Yi Ren failed

to identify authorities and facts for attorney’s fees. Having failed to preserve error

in the trial court, Tong Zhang waived any complaint that Yi Ren’s pleading was

defective.

   2. Tong Zhang presumed that the trial court awarded attorney’s fees based
      upon Texas Family Code 106.002 and ignored the other authorities of fees
      award as sanctions. No proof of necessity and reasonableness of attorney’s
      fees is required when attorney’s fees are assessed as a sanction.

      In his brief, Tong Zhang argued that Yi Ren was not entitled an award of

attorney’s fees under Texas Family Code section 106.002, because Yi Ren failed to

prove the necessity and reasonableness of attorney’s fees. Tong Zhang’s entire

argument is premised on the basic theory that the trial court awarded attorney’s

fees based upon Texas Family Code section 106.002. Here, there were no findings

of fact and conclusions of law entered to support Tong Zhang’s theory. Yi Ren

disagrees with Tong Zhang’s theory because his presumption ignores authorities of

fees award as sanctions.

      In Texas litigation, trial courts can grant sanctions based upon: Texas Rules

of Civil Procedure 13, 18a(h), 21b, 166a(h), 215, Chapters 9 and 10 of the Texas

Civil Practice and Remedies Code, and the court’s inherent power to sanction.

Texas Family Code section 156.005 also authorizes trial courts to tax attorney’s

                                         22
fees as costs against the offending party in modification suits if the court finds that

the suit was “filed frivolously or is designed to harass a party.” Tex. Fam. Code §

156.005.

      No proof of necessity or reasonableness is required when attorney’s fees are

assessed as a sanction. Prize Energy Res., L.P. v. Cliff Hoskins, Inc., 345 S.W.3d

537, 575-76 (Tex. App.—San Antonio 2011, no pet.).




   3. The trial court had more than a scintilla of evidence to award attorney’s fees.

      A trial court abuses its discretion by imposing sanctions without reference to

guiding rules and principles, such that its ruling was arbitrary or unreasonable.

Nath, 446 S.W.3d at 361; Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004).

"The trial court does not abuse its discretion if it bases its decision on conflicting

evidence and some evidence supports its decision." Unifund, 299 S.W.3d at 97

(citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)). If there were no findings

of fact entered to support the award of attorney’s fees and costs, the appellate court

must presume the trial court made all findings necessary to support its order. Holt

Atherton Industries, Inc. v. Heine, 835 S.W.2d 80, 83 (Tex.1992).

      By reviewing the record, the trial court had more than a scintilla of evidence

to award attorney’s fees. Tong Zhang had numerous discovery violations. One of

                                          23
Yi Ren’s Motion to Compel Discovery and for Sanctions was heard and granted.

Tong Zhang made numerous allegations but failed to offer sufficient evidence to

support any of them. He hired six attorneys for his lawsuit but the whole case was

extremely neglected by all of six attorneys. On the trial date, Tong Zhang

voluntarily nonsuited his petition. It is reasonably to assume that Tong Zhang’s

lawsuit for modification of conservatorship was designed for the purpose of

harassment or in order to welsh on his obligation of child support, as well as that

Tong Zhang’s nonsuit is to avoid an unfavorable judgement.

      Based on the evidences in record, Yi Ren should be entitled an award of

attorney’s fees.

   4. The trial court did not abuse its discretion in awarding amicus attorney’s
      fees in a non-enforcement suit characterized as child support.



      In his brief, Appellant cited the Supreme Court’s ruling in Tucker and

argued that trial courts have no inherent authority to characterize amicus attorney’s

fees as additional child support. Here, Yi Ren argues that Tong Zhang applied

improper case law to this case.

      The Supreme Court in Tucker only reviewed the issue of whether attorney’s

fees could be awarded as additional child support, but expressed no opinion as to

whether the amicus attorney’s fees could be awarded as additional child support.

                                         24
See Tucker v. Thomas, 419 S.W. 3d 292 (Tex., 2013) (Noting that “Tucker

abandoned his challenge to the trial court’s award of the amicus attorney’s fees as

additional child support. Therefore, our review in this case is limited to whether the

trial court had discretion to ward attorney’s fees incurred by Thomas as additional

child support.”; “[w]e therefore express no opinion as to whether the amicus

attorney’s fees could be awarded as additional child support…”)

      The Supreme Court in Tucker reasoned that “neither the Legislature nor our

case law related to the common law doctrine of necessaries has recognized trial

court authority to characterize attorney’s fees in non-enforcement modification

suits as necessaries”, but reaffirmed that “the Legislature has given trial courts

discretion to characterize attorney’s fees awarded to an amicus attorney or attorney

ad litem under section 107.023 as ‘necessaries for the benefit of the child.’ Id. §

107.023(d).”

      Texas Family Code section 107.023(d) provides that “[t]he court may

determine that fees awarded under this subchapter to an amicus attorney, an

attorney ad litem for the child, or a guardian ad litem for the child are necessaries

for the benefit of the child.” Under the unambiguous language of this statute, the

trial courts have authority to determine the amicus attorney’s reasonable fees were

necessaries for the children’s benefits.



                                           25
        Further, the Texas Legislature has stated in the Family Code that a parent's

duty to support minor children includes a duty to provide them with

necessaries. See Tex. Fam. Code Ann. § 151.001(c). In addition, the Supreme

Court of Texas and this court have concluded that a parent's duty of support

includes a duty to pay for the necessaries of the parent's children. See In re

H.V., 252 S.W.3d at 327, n. 55; In re W.J.S, 35 S.W.3d at 277-278. Under section

151.001(c) and this court's opinion in Hardin, a trial court's finding that attorney's

fees are necessaries for the benefit of the child supports a trial court's order that a

parent pay these fees as additional child support. See Tex. Fam.Code Ann. §

151.001(c); Hardin, 161 S.W.3d at 24-27; see also In re J.A.D., 2010 WL

2649961, at *4 (holding that trial court properly assessed "[mother's] attorney's

fees as `necessaries' against [father]" in case in which trial court ordered father to

pay mother's attorney's fees as "child support" but did not state that the fees were

"necessaries").

        The only reasonable construction of section 107.023(d) is that a trial court

has discretion to find that attorney's fees awarded to an amicus attorney, attorney

ad litem, or guardian ad litem are necessaries for the benefit of the child that may

be awarded as additional child support. Thus, the trial court did not abuse its

discretion in awarding amicus attorney’s fees as additional child support in this

case.

                                          26
                                     PRAYER


      Appellee, Yi Ren, respectfully, for the reason stated above, asks this Court

of Appeal:

      (1) to affirm the judgement of the trial court in awarding attorney’s fees to

         Yi Ren;

      (2) to affirm the judgement of the trial court in awarding amicus attorney’s

         fees as additional child support.

      (3) to grant Yi Ren any relief it may be entitled.




                                 Respectfully submitted,
                                              /s/ Yi Ren
                                       By:
                                              Yi Ren
                                              Appellee, Pro Se
                                              4114 Placid Stream Ct.,
                                              Houston, TX 77059
                                              Email: yirenlegal@gmail.com




                                         27
                        CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of APPELLEE’S BRIEF was

served on each attorney of record or party on May 14, 2018, pursuant to Texas

Rules of Appellate Procedure.

      Via E-Service:


Xenos Yuen                                David J. Mullican, Jr.
Counsel for Appellant                     Counsel for Appellant
State Bar No. 22232550                    State Bar No. 14651200
Seigel Yuen & Honore, PLLC                Seigel Yuen & Honore, PLLC
6100 Corporate Drive, Suite 580           6100 Corporate Drive, Suite 580
Houston, Texas 77036                      Houston, Texas 77036
Tel: 713-541-6256                         Tel: 713-541-6256
Email: Litxy@yuenlawoffice.com            Email: dm@yuenlawoffice.com




                                           /s/ Yi Ren

                                           Yi Ren
                                           Respondent, Pro Se
                                           4114 Placid Stream Ct.,
                                           Houston, TX 77059
                                           Email: yirenlegal@gmail.com




                                     28
