IN THE INTEREST OF S.E.C., A CHILD

AFFIRM and Opinion Filed October 20, 2009
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-08-00781-CV
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IN THE INTEREST OF S.E.C., A CHILD
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On Appeal from the 296th Judicial District Court
Collin County, Texas
Trial Court Cause No. 296-52214-05
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MEMORANDUM OPINION
Before Justices Morris, Murphy, and Fillmore
Opinion By Justice Murphy
        Lacey Elizabeth Smith a.k.a. Lacey Elizabeth Cesarz appeals from the $8000 attorney's fees award under family code section 9.014 in favor of appellee Daniel T.A. Cotts. See Tex. Fam. Code Ann. § 9.014 (Vernon Supp. 2009). We affirm the trial court's judgment and issue this memorandum opinion pursuant to Texas Rule of Appellate Procedure 47.4.
BACKGROUND
 
        Cotts filed his original motion for enforcement of the community property division ordered in the parties' final decree of divorce. Cotts alleged Smith had committed thirty-seven violations of the decree by failing to pay mortgage, tax, and homeowner debts. Cotts originally sought over $7000 in reimbursement for Smith's debts, $5000 for damage to his credit, penalties, interest, attorney's fees, and costs. At the time of the final hearing, Cotts's live pleading alleged forty-five monetary violations, as well as denial of visitation. Smith filed a counter-motion asserting six violations for a tax payment, mortgage payment, and four untimely support payments. Smith sought damages of over $4000 for the mortgage and tax payments.
        Before the hearing, Smith agreed to reimburse Cotts the sum of $7355 for mortgage and credit card payments, and Cotts agreed to pay Smith for half the property taxes incurred for 2006. Cotts proceeded with his request for compensatory damages, attorney's fees, and visitation. At the hearing, Cotts's attorney introduced an attorney's fees affidavit and testified to fees and costs exceeding $21,000. The trial court granted a final judgment in favor of Cotts and against Smith in the sum of $3013.48, attorney's fees of $8000, interest, and costs of court. The trial court also awarded Cotts two additional visitation days. The only relief granted Smith was an offset to the total amount awarded Cotts.
        No party requested findings of fact or conclusions of law, and the trial court made none.
DISCUSSION
        We review a trial court's decision to grant or deny attorney's fees under section 9.014 for an abuse of discretion. Cook v. Cameron, 733 S.W.2d 137, 141 (Tex. 1987); de la Garza v. de la Garza, 185 S.W.3d 924, 931 (Tex. App.-Dallas 2006, 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. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985).
        In three issues, Smith argues the trial court abused its discretion because the attorney's fees awarded were not reasonable and necessary, were not equitable and just, and Cotts was not the prevailing party in the dispute. We address these issues together.
        Section 9.014 of the Texas Family Code broadly provides the trial court “may award reasonable attorney's fees in a proceeding under this subchapter.” Tex. Fam. Code Ann. § 9.014. Section 9.014 does not require that Cotts prevail on his claims. See id. Rather, by its express language, the statute's only requirements are that the award be “reasonable” and in connection with a proceeding to enforce a decree of divorce or annulment providing for a division of property . Id. §§ 9.014, 9.001 (Enforcement of Decree).
        When attorney's fees are authorized, the reasonableness of attorney's fees is a fact question. Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998). We must assume the trial court made the necessary fact findings to support the judgment when neither party requests findings of fact or conclusions of law. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) (holding findings should be implied in favor of order modifying child support). Where the implied findings are supported by the evidence, we are required to uphold the judgment on any theory of law applicable to the case. Id.; Point Lookout W., Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987) (per curiam).
        Here, Cotts's attorney presented an affidavit in support of attorney's fees, which was admitted into evidence without objection. Smith also stipulated to the qualifications of Cotts's counsel as an expert. The affidavit showed the total fees and costs incurred and detailed the attorneys and legal assistants working on the case, their hourly rates, and the amount of time they worked on the case. The affidavit stated the requested sum of $21,368.75 was reasonable as required by the family code. At trial, counsel testified the fees requested in this enforcement action were “incredibly high” but she had “done a lot in this case.” She stated the amount was due to Smith's actions, including continued avoidance of the debts eventually stipulated just before trial, filing a summary judgment motion, and serving discovery. Counsel testified that she spent time responding to Smith's discovery requests, which also required supplementation because of the “tons of documents” that “kept coming in and coming in” in the period before trial. She also testified to significant correspondence and introduced e-mails evidencing difficult communications between the parties, including the failure of Smith to pick up certified mail. On cross examination, Cotts's counsel admitted that $3000 of the requested amount was related to a previous motion to clarify and the trial court had denied that request. Smith did not contest the remaining amount of more than $18,000 or offer any evidence to controvert Cotts's evidence supporting attorney's fees. Nor did Smith object when the trial court announced the reduced attorney's fees award of $8000. On this record, the trial court's implied findings that Cotts incurred reasonable and necessary attorney's fees of $8000 are supported by the evidence.   See Footnote 1  See Whorton, 742 S.W.2d at 278.
        We next address Smith's assertion the fees awarded are not equitable and just under Bocquet v. Herring, 972 S.W.2d 19 (Tex. 1998). Bocquet involved a claim under the Declaratory Judgments Act, a statute that provides “the court may award costs and reasonable and necessary attorney's fees as are equitable and just.” See Tex. Civ. Prac. & Rem. Code Ann. § 37.009 (Vernon 2008). As emphasized by the supreme court in Bocquet, two of the four express limitations on a court's discretion to award attorney's fees under section 37.009 are that the fees “must be equitable and just.” Bocquet, 972 S.W.2d at 21. No such limitation exists under section 9.014, which requires only reasonableness. See Tex. Fam. Code Ann. § 9.014. Were such a standard applicable to this case, however, the trial court's implicit findings also are supported by the evidence. See Whorton, 742 S.W.2d at 278.
        Finally, Smith asserts Cotts was not the prevailing party and, as a result, the trial court was required to state good cause for awarding fees to Cotts. Cotts cites Jenkins v. Jenkins, 991 S.W.2d 440, 450 (Tex. App.-Fort Worth 1999, pet. denied), which in turn relies on Marichal v. Marichal, 832 S.W.2d 797, 798 (Tex. App.-Houston [14th Dist.] 1992, no writ), for the suggestion a court must state on the record or in its judgment the good cause substantiating an attorney's fees award to a nonprevailing party. Marichal was not decided under section 9.014, and we do not reach the question of whether the ruling is applicable because we conclude Cotts was the prevailing party in this case.
        The prevailing party is the one vindicated by the judgment rendered. See Taylor Elec. Servs., Inc. v. Armstrong Elec. Supply Co., 167 S.W.3d 522, 532 (Tex. App.-Fort Worth 2005, no pet.). In determining the prevailing party, our focus is the successful party on the merits of the case. Id. A party can be the prevailing party entitled to attorney's fees even where the amount recovered is offset by an amount awarded to the opposing party. Id. at 533 (citing Blizzard v. Nationwide Mut. Fire Ins. Co., 756 S.W.2d 801, 806 (Tex. App.-Dallas 1988, no writ)).
        Here, under decretal paragraph eight of the trial court's order on the petition for enforcement, titled “Offset and Judgment,” it states:
 
IT IS ORDERED that DANIEL T.A. COTTS is granted a cumulative judgment against LACEY ELIZABETH SMITH in the amount of $3,013.48, such judgment bearing interest at 6 percent simple interest per ear [sic] from the date this Order is signed. DANIEL T.A. COTTS may enforce this judgment by any means available for the enforcement of a judgment for debt.
 
In the next paragraph, titled “Attorney's Fees,” the trial court awarded Cotts attorney's fees of $8000, plus interest, and again declared Cotts “may enforce this judgment for fees, expenses, and costs in his own name by any means available for the enforcement of a judgment for debt.” The only judgment rendered was in favor of Cotts after offsetting amounts Cotts owed Smith. Although the trial court was not required to find Cotts as the prevailing party to award attorney's fees under section 9.014, the evidence supports the trial court's implicit finding in support of the award.
        We conclude the evidence supports all implied findings necessary to support the trial court's judgment and the award of attorney's fees was not an abuse of discretion. Smith's three issues are overruled.
 
 
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                                                          MARY MURPHY
                                                          JUSTICE
 
 
 
080781F.P05
 
 
        
 
Footnote 1 Smith also states in her issue regarding reasonableness that the fees were not segregated. Smith has waived any complaint by failing to object to the trial court. See Tex. R. App. Proc. 33.1 (a prerequisite to presenting complaint on appeal is timely complaint to the trial court); see also Green Int'l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997) (failure to object to jury question regarding attorney's fees not segregated between projects and claims constituted waiver). Smith has further waived any complaint by failing to brief or argue the issue of segregation on appeal. See Tex. R. App. Proc. 38.1(i) (to present issue for appeal, appellant's brief must contain, among other things, clear and concise argument for appellant's contentions with appropriate citations to authorities and the record). Accordingly, we do not reach the question of whether fees must be segregated under section 9.014. See, e.g., Smith v. Deneve, 285 S.W.3d 904, 918 (Tex. App.-Dallas 2009, no pet.) (the broad language of family code section 6.708 allowing discretionary fees in a suit for dissolution of marriage does not require segregation).