Opinion
No. 04-15-00453-CV
05-11-2016
Stanley FREEMAN, Appellant v. Sumiko FREEMAN, Appellee
MEMORANDUM OPINION
From the 408th Judicial District Court, Bexar County, Texas
Trial Court No. 1998-CI-13915
Honorable Larry Noll, Judge Presiding Opinion by: Sandee Bryan Marion, Chief Justice Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice AFFIRMED
Stanley Freeman appeals the trial court's order on a motion to enforce decree of divorce. In his first issue, Stanley asserts the trial court erred in refusing to award him the appellate attorney's fees he incurred in prosecuting two prior appeals of domestic relations orders entered in the underlying cause. In his second issue, Stanley contends the trial judge who entered the orders that were previously appealed should have considered his request for attorney's fees instead of a new trial judge assigned to consider the cause after the second remand. We affirm the trial court's order.
BACKGROUND
The appellate history of the underlying cause and the dispute over the two prior domestic relations orders entered by the trial court are detailed in the two opinions issued in the prior appeals. See Freeman v. Freeman, No. 04-12-00541-CV, 2013 WL 3279535 (Tex. App.—San Antonio June 26, 2013, no pet.) (mem. op.); Freeman v. Freeman, 387 S.W.3d 772 (Tex. App.—El Paso 2012, no pet.). The nature of that dispute is not relevant to the issues presented in this appeal because the parties entered into an agreed domestic relations order after the second remand.
The first appeal was transferred from this court to the El Paso court pursuant to the Supreme Court's docket equalization program. Freeman, 387 S.W.3d at 776. --------
Also after the second remand, Stanley filed a motion for final hearing on his motion to enforce. In his motion, Stanley requested that he be awarded the appellate attorney's fees he incurred in pursuing the two prior appeals. At the hearing before the trial court, the trial court explained its reason for denying Stanley's request as follows:
With regard to the legal fees, it seems to me that both of you had to expend legal fees in this thing. And, unfortunately, I can't explain — if you went to three different courts, and the Courts of Appeals, including the Supreme Court, couldn't figure this out, there was definitely a problem. I can't answer for that.Consistent with this pronouncement, the trial court's order on the motion to enforce decree of divorce did not award attorney's fees to either party.
But here you are here today and it seems to me that both of you had to pay your fees. So, I'm not going to make any award of attorney's fees.
DISCUSSION
In his first issue, Stanley contends the trial court erred in refusing to award him the appellate attorney's fees he incurred in prosecuting the two prior appeals. Our resolution of Stanley's first issue is governed by the Texas Supreme Court's holding in Varner v. Cardenas, 218 S.W.3d 68 (Tex. 2007). In that case, the trial court refused to award the plaintiffs attorney's fees for appeal, "and the court of appeals affirmed because no evidence was offered regarding a reasonable fee for those services." Varner, 218 S.W.3d at 69. On appeal to the Supreme Court, the plaintiffs could cite no such evidence but asked the court "to change Texas procedure to allow post-judgment fees to be determined after appeal by remand to the trial court." Id. at 69-70. The Supreme Court declined that invitation. Id. at 70. As a result, "the party requesting attorney's fees for an appeal must present evidence regarding a reasonable fee for those services at the original trial." Kurtz v. Kurtz, No. 14-08-00351-CV, 2010 WL 1293769, at *11 (Tex. App.—Houston [14th Dist.] Apr. 6, 2010, no pet.) (mem. op.); see also In re Lesikar, 285 S.W.3d 577, 586 (Tex. App.—Houston [14th Dist.] 2009, orig. proceeding) (concluding appellant "waived any claim to appellate attorneys' fees on remand because in the initial trial, she failed to request appellate fees, present any evidence to support an award of appellate fees, or procure a finding or judgment on fees for appellate legal services"); Guajardo v. Tex. Waste Sys., No. 04-06-00639-CV, 2008 WL 182871, at *1 n.1 (Tex. App.—San Antonio Jan. 23, 2008, no pet.) (mem. op.) (rejecting appellant's request for a remand to allow trial court to award attorney's fees incurred in appeal noting appellant "had to obtain a conditional award of appellate attorney's fees in the county court judgment"). In this case, it does not appear Stanley presented evidence to support an award of appellate attorney's fees during the initial trial or the trial after the first remand. In addition, the orders that were previously appealed did not contain a conditional award of appellate attorney's fees. Accordingly, Stanley waived or forfeited his claim to an award of the attorney's fees he incurred in the two prior appeals. Therefore, we overrule Stanley's first issue.
In his second issue, Stanley contends the trial judge who entered the orders that were previously appealed should have considered his request for attorney's fees instead of a new trial judge assigned to consider the cause after the second remand. Because no trial judge could have awarded Stanley the fees he requested, we also overrule Stanley's second issue.
CONCLUSION
The trial court's judgment is affirmed.
Sandee Bryan Marion, Chief Justice