REVERSE and REMAND; Opinion Filed March 16, 2015.




                                          S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-14-00233-CV

             IN THE INTEREST OF: A.K.S., J.L.S., AND R.G.S., CHILDREN
                       On Appeal from the 301st Judicial District Court
                                    Dallas County, Texas
                            Trial Court Cause No. DF-09-07242

                              MEMORANDUM OPINION
                           Before Justices Lang, Stoddart, and Schenck
                                   Opinion by Justice Stoddart
       This appeal arises out of an order in a suit to modify the parent-child relationship. In two

related issues, James Romig Smith, the children’s father, contends the mother, Donnelle Smith

Vallejo, did not provide legally sufficient evidence to support an order awarding attorney’s fees

in the amount of $25,000. Because no evidence supports the attorney’s fee award, we reverse

that portion of the trial court’s order and remand this case to the trial court for redetermination of

attorney’s fees.

                                     FACTUAL BACKGROUND

       After Smith and Vallejo divorced, Smith filed a motion to modify the parent-child

relationship. The parties entered into a mediated settlement agreement resolving most issues,

and reserving the issue of attorney’s fees for trial. When Smith’s and Vallejo’s attorneys

appeared for trial, the trial court held an in-chambers, off-the-record conference with the

attorneys. After the conference, the trial court issued an order, which stated: “[Vallejo] has
incurred reasonable and necessary attorney’s fees for the safety and welfare of the minor children

the subject of this suit. IT IS ORDERED that good cause exists to award [Vallejo’s counsel] a

judgment in the amount of [$25,000] for attorney’s fees. . . .” Vallejo subsequently filed a partial

motion for new trial on the issue of attorney’s fees, in which she argued “the evidence is legally

and factually insufficient to support [the trial court’s order] based on the fact that there is no

record of the agreements between counsel and of the evidence presented to the [trial court] in

chambers.” The trial court held a hearing on the motion. At the hearing, the parties’ attorneys

and the trial court acknowledged the prior determination of attorney’s fees occurred in-chambers

and without a court reporter. At the hearing, Smith’s attorney did not object to the amount of

attorney’s fees awarded but stated Smith did not agree with the “safety and welfare” language in

the order. The trial court denied Vallejo’s partial motion for new trial.

                                        LAW & ANALYSIS

       In his first issue, Smith argues the evidence is legally insufficient to support the trial

court’s award of attorney’s fees. A trial court has discretion to award attorney’s fees in a suit

affecting the parent-child relationship. TEX. FAM. CODE ANN. § 106.002 (West 2014). We

review the award for an abuse of discretion. Gonzalez v. Gonzalez, 331 S.W.3d 864, 866 (Tex.

App.—Dallas 2011, no pet.).

       A trial court abuses its discretion if it acts in an arbitrary or unreasonable manner, or if it

acts without reference to any guiding rules or principles. Downer v. Aquamarine Operators,

Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); In re Marriage of C.A.S., 405 S.W.3d 373, 382 (Tex.

App.—Dallas 2013, no pet.). Because the traditional sufficiency standards of review overlap

with the abuse of discretion standard in family law cases, legal sufficiency is not an independent

ground of error but is a relevant factor in our assessment of whether the trial court abused its

discretion. Gonzalez, 331 S.W.3d at 866. To determine whether the trial court abused its

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discretion, we consider whether the trial court (1) had sufficient evidence upon which to exercise

its discretion, and (2) erred in its exercise of that discretion. Id. at 866–67. We conduct the

applicable sufficiency review with regard to the first question. Id. at 867. We then proceed to

determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id.

       As the party seeking fees, Vallejo bore the burden to show the attorney’s fees she

incurred were reasonable and necessary. See In re B.N.L.-B., 375 S.W.3d 557, 566 (Tex. App.—

Dallas 2012, no pet.). Vallejo conceded in her motion for new trial “the evidence is legally and

factually insufficient to support [the trial court’s order] based on the fact that there is no record

of the agreements between counsel and of the evidence presented to the [trial court] in

chambers.” Because the conference in chambers was conducted without a court reporter, there is

no record for our review. Similarly, there is no evidence in the clerk’s record Vallejo incurred

attorney’s fees. As the record fails to show that Vallejo incurred attorney’s fees or any fees were

reasonable and necessary, there is insufficient evidence in the record supporting the trial court’s

determination of attorney’s fees. See id. at 566; TEX. FAM. CODE ANN. § 106.002. We conclude

the trial court abused its discretion by awarding attorney’s fees to Vallejo’s counsel.

       Vallejo does not argue the evidence of attorney’s fees is legally sufficient. Instead, she

argues Smith acquiesced to the procedure used to determine the amount of the fees—the in-

chambers, off-the-record conference—and, because Smith acquiesced to the procedure, he

invited the error and is estopped from seeking relief on appeal. Her brief states:

               The trial court did not abuse its discretion [by awarding attorney’s fees]
       because [Smith] acquiesced to the procedure. . . .[Smith] should be estopped from
       challenging the award of attorney’s fees while accepting the benefit of the child
       support determination made using the same off-record procedure. If the trial court
       did commit error in following the parties’ directives, it was error which [Smith]
       invited by requesting a procedure which resulted in a lack of a record.




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“The invited error doctrine applies to situations where a party requests the court to make a

specific ruling, then complains of that ruling on appeal.” In re Dep’t of Family & Prot. Servs.,

273 S.W.3d 637, 646 (Tex. 2009) (citing Tittizer v. Union Gas Corp., 171 S.W.3d 857, 862 (Tex.

2005)). Nothing in the appellate record indicates Smith requested the in-chambers, off-the-

record conference.      Nor is Smith complaining about the conference on appeal.                 Smith’s

complaint is that there is no evidence to support the trial court’s award of attorney’s fees to

Vallejo’s counsel. We conclude the invited error doctrine is inapplicable.

        Moreover, Smith is only estopped “from asserting a position in an appellate court based

on actions [he] took in the trial court, [if he] . . . ‘unequivocally [took] a position in the trial court

that is clearly adverse to [his] position on appeal.’” In re Dep’t of Family & Prot. Servs., 273

S.W.3d at 646 (quoting Tittizer, 171 S.W.3d at 862). Again, Smith complains there is legally

insufficient evidence to support the trial court’s award of attorney’s fees. He does not complain

on appeal about the in-chambers, off-the-record procedure. Even if we assume Smith agreed to

the in-chambers, off-the-record conversation with the judge about attorney’s fees, that does not

stop him from challenging whether any evidence supports the attorney’s fee award. His position

on appeal is not adverse to his position in the trial court.

        To the extent Vallejo’s brief may argue Smith failed to preserve his complaint for appeal

because he did not object to the sufficiency of the evidence in the trial court, we conclude Smith

was not required to do so. See TEX. R. APP. P. 33.1(d).

        We sustain Smith’s first issue.

        In his second issue, Smith argues there was legally insufficient evidence to award

attorney’s fees for the “safety and welfare of the minor children.”             Having concluded the

evidence was insufficient to support the attorney’s fee award, we need not address the merits of

Smith’s second issue. See TEX. R. APP. P. 47.1.

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                                           CONCLUSION

        Appellate courts have broad discretion to remand for a new trial on attorney’s fees where

evidence to support attorney’s fees was legally insufficient. In re Marriage of Pyrtle, 433

S.W.3d 152, 168 (Tex. App.—Dallas 2014, pet. denied) (citing In re A.A.L., No. 12–11–00161–

CV, 2012 WL 1883763, at *4 (Tex. App.—Tyler May 23, 2012, no pet.) (mem. op.)); see also

TEX R. APP. P. 43.3 (“When reversing a trial court’s judgment, the court must render the

judgment that the trial court should have rendered, except when . . . the interests of justice

require a remand for another trial.”). We reverse that portion of the trial court’s order awarding

Vallejo’s counsel in this lawsuit a judgment for attorney’s fees in the amount of $25,000 and

remand this case to the trial court for redetermination of attorney’s fees.



140233F.P05




                                                      / Craig Stoddart/
                                                      CRAIG STODDART
                                                      JUSTICE




                                                –5–
                                          S
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

IN THE INTEREST OF: A.K.S., J.L.S.                    On Appeal from the 301st Judicial District
AND R.G.S., CHILDREN                                  Court, Dallas County, Texas
                                                      Trial Court Cause No. DF-09-07242.
No. 05-14-00233-CV                                    Opinion delivered by Justice Stoddart.
                                                      Justices Lang and Schenck participating.


        In accordance with this Court’s opinion of this date, we reverse that portion of the trial
court’s Order in Suit to Modify Parent-Child Relationship awarding Donnelle Smith Vallejo’s
counsel in this lawsuit a judgment of attorney’s fees in the amount of $25,000 and remand this
case to the trial court for redetermination of attorney’s fees.

       It is ORDERED that each party bear its own costs of this appeal.


Judgment entered this 16th day of March, 2015.




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