

Opinion filed August 23,
2012
 
                                                                       In The
                                                                              
  Eleventh
Court of Appeals
                                                                   __________
 
                                                         No. 11-11-00142-CV 
                                                    __________
 
                             BRYON
BRANDON RIGGS, Appellant
 
                                                             V.
 
                           LAURA
ELIZABETH PILLANS, Appellee

 
                                   On
Appeal from the 259th District Court
                                                              Jones
County, Texas
                                                     Trial
Court Cause No. 022445
 

 
                                            M
E M O R A N D U M   O P I N I O N
            The
mother of L.E.P. retained an attorney to file a petition for writ of habeas
corpus and an application for writ of attachment to have the child returned to
her when the father refused to return the child.  The trial court entered an
order for issuance of writ of attachment and ordered that a hearing be held to
determine the right of possession of the child.  At the hearing on the petition
for writ of habeas corpus, the trial court entered an order to return the child
to the mother as the person entitled by law to possession of the child.  The
trial court also awarded the attorney for the mother attorney’s fees in the
amount of $2,500 and costs in the amount of $365.  The father appeals from the
judgment.  His issue on appeal is that there was no evidence to support the
award of the mother’s attorney’s fees and costs against him.  We affirm.     
Standard
of Review
            Section
106.002(a) of the Texas Family Code provides that a “court may render judgment
for reasonable attorney’s fees and expenses and order the judgment and
postjudgment interest to be paid directly to an attorney” in a suit affecting
the parent-child relationship.  Tex. Fam.
Code Ann. § 106.002(a) (West 2008).  The reasonableness of attorney’s
fees is a question of fact to be determined by the trier of fact and must be
supported by competent evidence.  Tull v. Tull, 159 S.W.3d 758 (Tex.
App.—Dallas 2005, no pet.).  To support an award of reasonable attorney’s fees,
there normally should be evidence of the time spent by the attorney on the
case, the nature of the preparation, the complexity of the case, the experience
of the attorney, and the prevailing hourly rates.  Hardin v. Hardin, 161
S.W.3d 14, 24 (Tex. App.—Houston [14th Dist.] 2004, no pet.).  However,
evidence on each of these factors is not necessary to determine the amount of
an attorney’s fee award.  In re M.A.N.M., 231 S.W.3d 562, 567 (Tex. App.—Dallas
2007, no pet.).
            A
court can also look at the entire record, the evidence presented on
reasonableness, the common knowledge of the lawyers and judges, and the
relative success of the parties.  In re A.B.P., 291 S.W.3d 91, 98 (Tex.
App.—Dallas 2009, no pet.); In re M.A.N.M., 231 S.W.3d at 567. 
Documentary evidence is not a prerequisite to an award of attorney’s fees.  In
re A.B.P., 291 S.W.3d at 99.  It is within the trial court’s sound
discretion to award reasonable attorney’s fees in a suit affecting the parent-child
relationship.  Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002).
            Appellant’s
issue is a legal-sufficiency challenge.  In City of Keller v. Wilson,
168 S.W.3d 802, 827 (Tex. 2005), the supreme court concluded as follows:
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. . . . [L]egal-sufficiency
review in the proper light must credit favorable evidence if reasonable jurors
could, and disregard contrary evidence unless reasonable jurors could not.
 
This was a bench
trial; however, the supreme court’s admonition applies here as well.
Testimony
at the Hearing
Laura
Elizabeth Pillans is the mother of L.E.P.  Bryon Brandon Riggs is her father.  L.E.P.
was born on January 23, 2010.  On July 28, 2010, the County Court at Law of
Williamson County entered an order establishing parent-child relationship that
named Laura as the primary joint managing conservator and Bryon as a joint
managing conservator of L.E.P.  Because Bryon kept L.E.P for more than thirty
days after Laura had let him have her for a visit and he had refused to return
her to Laura, Laura retained an attorney to file a petition for writ of habeas
corpus and an application for writ of attachment to obtain the return of L.E.P.
to Laura.
            The
petition and application were served on Bryon, who was living in Jones County. 
Laura alleged that she was entitled to possession of L.E.P. based on the terms
of the Williamson County court order.  She alleged that she believed that the
child was in danger with Bryon because he was on felony probation and because
the child was only fifteen months old and needed to be with Laura, the primary
caretaker.  In addition to the return of L.E.P., Laura requested judgment
against Bryon for travel and other expenses incurred by her, reasonable
attorney’s fees, expenses, and costs of court.  On March 30, 2011, the trial
court issued an order for issuance of a writ of attachment with respect to L.E.P. 

            A
hearing was held on April 4, 2011, on the petition for writ of habeas corpus to
determine the right of possession of the child.  The only witnesses were Laura
and Bryon.  Laura testified that their custody was governed by the Williamson
County court order and submitted that order as the only exhibit.  Laura stated that
Bryon’s mother had picked L.E.P. up on Thursday, March 24, and that Bryon was
to return her to Laura on the following Sunday.  Instead, Bryon kept L.E.P. for
thirty-six days.  Laura attempted to pick L.E.P. up twice, but was told to
leave Bryon’s property.
            Laura
testified that it was necessary to hire an attorney to get L.E.P. back.  She
was required to pay reasonable and necessary attorney’s fees in the amount of
$2,500 to have the petition and application filed because Bryon refused to
return L.E.P.  Even with the writ of attachment, the sheriff was not able to immediately
retrieve L.E.P.; Bryon refused to tell the sheriff the location of L.E.P. 
Laura testified that she had to wait over six hours before the police were able
to obtain possession of L.E.P.  Laura testified that this was the second
hearing where her attorney had represented her.  The attorney had filed the
documents for her and had been with her to obtain from the trial court the
order for issuance of a writ of attachment.
            In
answer to her attorney’s question, Laura testified that she and the attorney
had agreed to a flat fee of $2,500.  For that fee, the attorney agreed that he would
obtain Laura’s child through habeas and writ of attachment proceedings and that
he would pay all costs out of his fee.
            In
his testimony, Bryon stated that he had been at work when the sheriff’s deputy
had come for L.E.P., and he agreed that there was a delay of six hours before
he turned the child over to the sheriff’s deputy.  He acknowledged that he had originally
planned to take L.E.P. back to Laura on the Sunday following March 24.  Bryon
testified that Laura asked him to take L.E.P. to Laura’s mother in
Throckmorton; Laura was out of the state at the time.  Bryon said that he
refused to take L.E.P. to Laura’s mother because he and Laura’s mother did not
get along.  Bryon admitted that Laura had walked in his front door to pick up L.E.P.
and that he had called the police, who told Laura that she had to leave the
premises.
              Bryon’s
attorney asked him if he thought that it was appropriate for him to be
responsible for Laura’s attorney’s fees in this case.  Bryon’s response was,
“No, I’m out the same amount.”
            At
the end of the hearing, the trial court admonished Bryon that he should not
ignore court orders such as the order from Williamson County.  
Analysis
            Before
discussing Bryon’s issue, we should address Laura’s failure to file a brief. 
An appellee need not raise cross-points or even file a brief to have this court
consider what was presented to the trial court; the burden rests on the
appellant to establish grounds for reversal.  Richardson-Eagle, Inc. v. William
M. Mercer, Inc., 213 S.W.3d 469, 478 n.6 (Tex. App.—Houston [1st Dist.]
2006, pet. denied); Sullivan v. Booker, 877 S.W.2d 370, 373 (Tex. App.—Houston
[1st Dist.] 1994, writ denied).
There
was no testimony about Laura’s attorney’s hourly rate or the number of hours he
spent on the case.  Although the attorney should have testified as to his fee, there
is no rigid requirement that there must be evidence on both of these facts to
make a determination of attorney’s fees.  Sandles v. Howerton, 163
S.W.3d 829, 839 (Tex. App.—Dallas 2005, no pet.).  It was undisputed that Laura’s
attorney represented her at the March 30 hearing on her application for writ of
attachment and at the April 4 hearing on her petition for writ of habeas
corpus.  The attorney also spent time on drafting the petition, application,
and court orders and meeting with Laura.
            It
was obvious that Laura was required to employ an attorney to get her child
back.  She testified that she and her attorney agreed that $2,500 was a
reasonable fee for his services.  Because it was an agreed flat fee, there was
the possibility that her attorney might have incurred a loss if the litigation
had escalated.  
            Bryon
did not challenge the reasonableness of the $2,500 fee.  He simply expressed
his opinion that he should not have to pay Laura’s attorney because he had paid
about the same amount to his attorney.  His statement was an implicit
acknowledgement that the attorney’s fee was reasonable.
            The
supreme court in Smith v. Patrick W.Y. Tam Trust, 296 S.W.3d 545 (Tex.
2009), involving an award of attorney’s fees, pointed out “that where the
testimony of an interested witness is not contradicted by any other witness, or
attendant circumstances, and the same is clear, direct and positive, and free
from contradiction, inaccuracies, and circumstances tending to cast suspicion
thereon, it is taken as true, as a matter of law.”  Id. at 547.  The
supreme court went on to say, “The court, as a trier of fact, may award
attorneys’ fees as a matter of law in such circumstances, especially when the
opposing party has the means and opportunity of disproving the testimony or
evidence and fails to do so.”  Id. at 547 (quoting Ragsdale v.
Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990)).  
            The
award by the trial court also met the admonition by the supreme court in Arthur
Andersen & Co. v. Perry Equipment Corp., 945 S.W.2d 812, 818 (Tex.
1997), that the factfinder should consider “the amount involved and the results
obtained.”  Smith, 296 S.W.3d at 548.  We have considered the entire
record and the common knowledge of the lawyers and the judge in this case.  In
addition to the undisputed testimony that the flat fee was reasonable, the
judge was entitled to evaluate the attorney’s fees in terms of his knowledge of
fees charged in Jones County.  We find that the order awarding Laura’s attorney
his attorney’s fees and costs was reasonable and necessary.
This
Court’s Ruling
            The order
of the trial court is affirmed.
 
 
                                                                                                TERRY
McCALL
                                                                                                JUSTICE
August 23, 2012
Panel consists of: Wright, C.J., 
McCall, J., and Kalenak, J.                                                                                         

