Elizabeth Ann Bryan v. Benjamin Mark Bryan--Appeal from 225th Judicial District Court of Bexar County

MEMORANDUM OPINION
No. 04-06-00553-CV
Elizabeth Anne BRYAN,
Appellant
v.
Benjamin BRYAN,
Appellee
From the 225th Judicial District Court, Bexar County, Texas
Trial Court No. 2005-CI-10951
Honorable Joe Frazier Brown, Judge Presiding (1)

Opinion by: Sandee Bryan Marion, Justice

 

Sitting: Alma L. L pez, Chief Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

 

Delivered and Filed: July 18, 2007

 

AFFIRMED AS MODIFIED

 

BACKGROUND

 

Appellee, Benjamin Mark Bryan (hereinafter Benjamin), filed for divorce on July 6, 2005 from appellant, Elizabeth Anne Bryan (hereinafter Elizabeth). On August 4, 2005, the trial court granted temporary orders allowing Elizabeth and the children to remain in Missouri and granting Benjamin visitation in Texas once a month. On November 10, 2005, the trial court held a hearing to consider various motions filed by Benjamin. In particular, Benjamin alleged Elizabeth had failed to provide him overnight access to the children since August of 2005. Also, during the November 10th hearing, Benjamin's attorney, Carmen Rojo, testified regarding the attorney's fees she incurred attempting to get Benjamin visitation with his children.

On November 17, 2005, the trial court signed an order directing Elizabeth to pay $4,500 in attorney's fees. On January 4, 2006, an additional order was signed awarding $900 in attorney's fees to Benjamin. The final divorce decree incorporated both orders and awarded Benjamin a total of $5,400 in attorney's fees. The decree characterized the award of attorney's fees as "child support." In two issues, Elizabeth asserts the fees should not be characterized as "child support" and the evidence is insufficient to support the $4,500 award. (2)DISCUSSION

In her first issue, Elizabeth asserts the trial court erred in characterizing the award of attorney's fees as "child support." On appeal, Benjamin concedes error on this issue and agrees that the proper remedy is to modify the judgment to delete all characterizations of attorney's fees as "child support." We agree. Accordingly, we sustain Elizabeth's first issue and modify the trial court's judgment to strike all parts of the judgment that characterize the attorney's fees as "child support."

In her second issue, Elizabeth contends the trial court erred in awarding $4,500 of the $5,400 in attorney's fees because no evidence was presented in support of the $4,500 award. An award of attorney's fees in a suit affecting the parent-child relationship is discretionary with the trial court. See Tex. Fam. Code Ann. 106.002 (Vernon Supp. 2006); Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002). The decision to grant or deny an award of attorney's fees and costs is within the sound discretion of the trial court. Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996). The award will be upheld unless we find the trial court's decision is arbitrary, unreasonable, and without reference to any guiding rules and principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

Under the Family Code, the trial court has broad discretion in awarding attorney's fees and costs, particularly in matters pertaining to the parent-child relationship. 106.002; Bruni, 924 S.W.2d at 368. Any award of attorney's fees must be supported by evidence. See Thomas v. Thomas, 895 S.W.2d 895, 898 (Tex. App.--Waco 1995, writ denied). Testimony should be presented regarding the experience of the attorney, the prevailing hourly rates, the nature of the preparation, the complexity of the case, and the number of hours spent on the case. Goudeau v. Marquez, 830 S.W.2d 681, 683 (Tex. App.--Houston [1st Dist.] 1992, no writ); see also In re C.Z.B., 151 S.W.3d 627, 635 (Tex. App.--San Antonio 2004, no pet.); MCI Telecommunications Corp. v. Crowley, 899 S.W.2d 399, 403 (Tex. App.--Fort Worth 1995, no pet.).

We disagree with Elizabeth's contention there was no evidence to support the trial court's $4,500 award for attorney's fees. During the November 10, 2005 hearing, Benjamin's attorney, Carmen Rojo, testified she has been licensed to practice law in the State of Texas since 1991, her practice is mainly in the area of family law, she has been board certified in the area of family law for over six years, and she charges $250 per hour for legal services rendered. Rojo described the legal work she performed on the case and she testified she spent over twenty-five hours of her time "attempting to get" Benjamin visitation with his children. Based on this testimony, we hold the evidence is sufficient to support the court's $4,500 award.

CONCLUSION

We modify the Decree of Divorce to strike any characterization of the award for attorney's fees as child support. As modified, we affirm the trial court's judgment.

 

Sandee Bryan Marion, Justice

 

1. The Honorable Peter Sakai is the presiding judge of the 225th Judicial District Court, Bexar County, Texas. However, the Honorable Joe Frazier Brown, the presiding judge of the 57th Judicial District Court, Bexar County, Texas, presided over the underlying divorce proceeding and signed the judgment that is at issue in this appeal.

2. Elizabeth does not contest the $900 award of attorney's fees.