Einkauf, Keith v. Warren, Lisbeth C.--Appeal from 308th District Court of Harris County

Affirmed and Memorandum Opinion filed September 23, 2003

Affirmed and Memorandum Opinion filed September 23, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-01161-CV

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KEITH EINKAUF  , Appellant

V.

LISBETH C. WARREN, Appellee

On Appeal from the 308th District Court

Harris  County, Texas

Trial Court Cause No. 00-46745

M E M O R A N D U M O P I N I O N

Appellant, Keith Einkauf, appeals the trial court=s child support order. On appeal, appellant contends the trial court abused its discretion when it (1) failed to enter findings pertaining to its order, (2) granted $88,311 in retroactive child support, and (3) awarded $12,500 in attorney fees. We affirm.

Background

Lisbeth Cathryn Warren became pregnant in 1985. At the time, she lived with appellant, and informed him that he was the father of her unborn child. They continued to live together until appellant moved out in February or March of 1986. On June 4, 1986, Lisbeth gave birth to M.W. Although appellant had contact with Lisbeth over the following years, he failed to financially support M.W.

In September 2000, Lisbeth filed suit to establish the parent-child relationship between appellant and M.W. Biological tests proved appellant is M.W.=s father, and the case proceeded to trial. At the conclusion of trial, the court ordered appellant to pay $987 per month in child support, $88, 311 in retroactive child support, and $12,500 in attorney fees.

Standard of Review

We review a trial court=s setting of child support, granting of retroactive child support, and award of attorney fees under an abuse of discretion standard. In re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002, no pet.) (reviewing trial court=s order of child support under abuse of discretion standard); Holley v. Holley, 864 S.W.2d 703, 707 (Tex. App.CHouston [1st Dist.] 1993, writ denied) (reviewing trial court=s order of retroactive child support under abuse of discretion standard); Ragsdale v. Progressive Voters League, 801 S.W.2d 880, 881 (Tex. 1990) (reviewing trial court=s allowance of attorney fees under abuse of discretion standard). Under an abuse of discretion standard, the question is whether the court acted arbitrarily or unreasonably; that is, without reference to guiding rules or principles. In re D. S., 76 S.W.3d at 516. In answering this question, we view the evidence in the light most favorable to the trial court=s actions and indulge every legal presumption in favor of that judgment. Id.

Child Support

In his first issue, appellant contends the trial court abused its discretion (1) by failing to enter written findings of fact pertaining to its child support order and (2) by exceeding the amount of child support recommended by the statutory guidelines. See Tex. Fam. Code Ann. '154.129 (Vernon 2002). Under the Family Code, a trial court must make specific findings if: (1) a party files a written request with the court not later than 10 days after the date of the hearing; (2) a party makes an oral request in open court during the hearing; or (3) the amount of child support ordered by the court varies from the amount computed by applying the percentage guidelines. Tex. Fam. Code Ann. '154.130(a) (Vernon 2002).

Here, appellant failed to comply with section 154.130(a) because he did not request the findings in a timely manner. After a hearing on the issue, the trial court announced its judgment on July 11, 2002. Appellant failed to request findings at that time. He did not make his written request for findings until August 12, 2002, over a month after the hearing. Thus, appellant=s request was untimely because he failed to make the request at the hearing, and his written request was not made at or within 10 days from the hearing. See Tex. Fam. Code Ann. '147.130(a) (Vernon 2002); Hatteberg v. Hatteberg, 933 S.W.2d 522, 528 (Tex. App.CHouston [1st Dist.]1994, no writ) (finding wife failed to make timely request for findings when she failed to make a request at hearing where trial court determined the amount of child support rendered or within 10 days of that hearing).

Appellant further argues that whether he requested specific child support findings, the trial court was required to make such findings because the amount awarded deviated from the amount computed by applying the Family Code=s percentage guidelines. See Tex. Fam. Code Ann. '154.129 (Vernon 2002). The record reflects, however, that the trial court did apply the percentage guidelines. Under the statutory guidelines, the court takes into account whether the obligor=s children live in more than one household, the number of children before the court, and the number of children the obligor has an obligation to support that are not before the court. Id.

The trial court calculated child support by applying 172% to appellant=s net resources. This percentage takes into account that appellant=s children live in more than one household, i.e., one child was before the court, and he was obligated to support a second child as well. Id. Appellant points out that he also pays $250 per month in child support for a third child which the trial court did not include in calculating the amount of child support he should pay for M.W. However, under section 154.129 of the Family Code, the court considers the number of children the obligor has a duty to support. Tex. Fam. Code Ann. ' 154.129 (Vernon 2002). Under Section 154.001 of the Family Code, a court can order a parent to support their child until:

(1) the child reaches 18 years of age or until graduation from high school, whichever occurs later; (2) the child is emancipated through marriage, through removal of the disabilities of minority by court order, or by other operation of law; (3) until the death of the child; or (4) if the child is disabled as defined in this chapter, for an indefinite period.

Tex. Fam. Code Ann. ' 154.001(a) (Vernon 2002).

Here, the record shows the third Achild@ is actually a twenty-one-year old son that has three children of his own. Because appellant failed to pay child support for that child when ordered, he is presently paying $250 per month to reduce the arrearage on support payments that should have been made before his son reached majority. We find the trial court properly excluded this Achild@ and the arrearage payments under the statutory guidelines.[1] Because the trial court established the amount of child support by applying the percentage guidelines under the Family Code, it was not required to make findings of fact. See Tex. Fam. Code Ann. ' 154.130(a)(3) (Vernon 2002). Accordingly, appellant=s first issue is overruled.

Retroactive Child Support

In his second issue, appellant contends the trial court abused its discretion in awarding $88, 311 for retroactive child support because it places an undue burden on appellant and his family. A court may order retroactive child support when the parent: (1) has not previously been ordered to pay support for the child; and (2) was not a party to a suit in which support was ordered. Tex. Fam. Code Ann. '154.009(a) (Vernon 2002). Once paternity has been established, the trial court may order child support retroactively to the time of birth. State v. Johnican, 830 S.W.2d 215, 217 (Tex. App.CHouston [14th Dist.] 1992, no writ). When determining whether to order retroactive child support, the judge should consider the net resources of the obligor during the relevant time period and whether:

(1) the mother of the child had made any previous attempts to notify the biological father of his paternity or probable paternity;

(2) the biological father had knowledge of his paternity or probable paternity;

(3) the order of retroactive child support will impose an undue hardship on the obligor or the obligor=s family; and

(4) the obligor has provided actual support or other necessaries before filing of the action.

Tex. Fam. Code Ann. ' 154.131(b) (Vernon 2002).

Appellant has never been ordered to pay child support for M.W., nor been a party to a case in which child support was ordered for M.W., and thus, the trial court proceeded to determine what amount, if any, of retroactive child support should be awarded. After the trial court reviewed appellant=s net income from the time of M.W.=s birth, the court ordered appellant to pay $88,311 in retroactive child support, in payments of $450 per month, until the child reaches eighteen years of age in June 2004. At that point, child support will terminate and thereafter, appellant will pay $1,437 per month toward the remaining retroactive child support. Appellant argues that this payment in addition to a $548 child support payment on a second child, and $250 retroactive child support payment on a third child creates an undue hardship on him and his family.

The evidence, however, establishes the trial court correctly ordered retroactive child support. In October of 1985, Lisbeth informed appellant that she was having his child. Appellant and Lisbeth lived together for several months during her pregnancy until appellant moved out in February or March of 1986. After Lisbeth gave birth to M.W. in June 1986, she stayed in contact with appellant, but he never supported the child. In September 2000, Lisbeth filed a petition to establish a parent-child relationship between appellant and M.W. In April of 2001, medical examinations established appellant as M.W.=s father. Seven months later, in December of 2001, appellant, along with his wife Carol, purchased a $297,000 house. They made a $157,000 cash down payment, and financed the remaining balance.

Considering that at the time of trial appellant had known about M.W. for sixteen years, and never financially supported M.W., coupled with the fact he put down $157,000 cash for a house a few months after medical examinations established he fathered M.W., we do not find that trial court abused its discretion in awarding $88,311 in retroactive child support. Accordingly, appellant=s second issue is overruled.

Attorney Fees

In his third issue, appellant contends the trial court abused its discretion in awarding unreasonable attorney fees in the amount of $12,500 to Ms. Warren=s attorney, Vonda Russell Covington. A trial court may assess reasonable attorney fees incurred in a suit adjudicating parentage. Tex. Fam. Code Ann. ' 160.636(c) (Vernon 2002). The trial court should consider the following factors in determining the reasonableness of attorney fees:

(1) the time and labor required, and the skill required to perform the legal service properly;

(2) the likelihood . . . that the acceptance of the particular employment will preclude other employment by the lawyer;

(3) the fee customarily charged in the locality for similar legal services;

(4) the amount involved and the results obtained;

(5) the time limitations imposed by the client or by the circumstances;

(6) the nature and length of the professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services were rendered.

Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812, 818 (Tex. 1997).

Lisbeth=s attorney testified as to the reasonableness of the attorney fees and the payments she had received at the time of trial:

My name is Vonda Covington. I am the attorney representing Lisbeth Warren in this case. I have been licensed since 1993. I practice in and around Harris County and I am familiar with the attorney fees in the area. My normal fee is $175 an hour which is reasonable for the amount of B for the length of time I have been practicing law in and for Harris County. Since Ms. Warren is the sister of an attorney in my office, I gave her a discount and I only charge B I have only charged $112.50 per hour. I also charged her $65 an hour for paralegal work. I normally charge $85 . . . .

Lisbeth=s attorney bill amounted to almost $25,000. Ms. Covington admitted this was high for this type of case, but explained that the case was extremely complicated for several reasons, and presented the trial court with thirty-five pages of invoices documenting her fees. Lisbeth=s attorney billed for, among other things, a hearing on temporary orders that had been rescheduled several times and two trials. Opposing counsel questioned Ms. Covington on those invoices, and the trial court discounted $5,000 for the time Ms. Covington acquainted herself with the law applicable to this case. After hearing all the relevant evidence, the trial court awarded attorney fees of $12,500 for services rendered to Lisbeth by Ms. Covington.

Considering the circumstances of this case, we find the trial court=s order of attorney fees did not constitute an abuse of its discretion. See Ragsdale, 801 S.W.2d at 881. Accordingly, appellant=s third issue is overruled.

The judgment of the trial court is affirmed.

/s/ J. Harvey Hudson

Justice

Judgment rendered and Memorandum Opinion filed September 23, 2003.

Panel consists of Justices Yates, Hudson, and Frost.

[1] We also observe that appellant made no objection in the trial court to the amount of the monthly payment he was ordered to pay.