Opinion
No. 14-09-00696-CV
Opinion filed November 4, 2010.
On Appeal from the 310th District Court Harris County, Texas, Trial Court Cause No. 2008-61628.
Panel consists of Justices BROWN, SULLIVAN, and CHRISTOPHER.
MEMORANDUM OPINION
In this appeal, the father of Q.D.T., Jr. ("Father") challenges the trial court's judgment awarding retroactive child support, prenatal and postnatal healthcare expenses, and attorney's fees to the child's mother ("Mother"). Father also contends the trial court abused its discretion in unduly limiting his possession of and access to the child. Finding merit in Father's challenges to the awards of healthcare expenses and attorney's fees, we modify the judgment to omit those awards, and affirm the judgment as modified.
I
Q.D.T., Jr. was born June 13, 2008. Father and Mother were not married, and were not in a dating relationship when the child was conceived. Initially, neither parent was pleased about the pregnancy.
Father was present for the birth of the child and signed a written acknowledgement of paternity. Father also agreed to voluntarily pay child support of $90 every two weeks. Father made one or two payments, but stopped when Mother limited his access to the child. Father also obtained health insurance for the child, effective August 15, 2008.
Father sought the intervention of the Attorney General's office to establish his parentage, set child support, and provide for terms of his possession of and access to the child. The parties were unable to reach an agreement, however, and on October 17, 2008, Father initiated this action to adjudicate his parentage and to establish his parental rights. Mother answered and filed a counter-petition seeking, among other things, an order granting her sole managing conservatorship, child support, and attorney's fees. Neither party asserted the other was unfit to parent or mistreated the child.
Following a trial on the petition to adjudicate parentage and counter-petition, the trial court found that Father was the biological father of Q.D.T., Jr. and appointed Mother and Father joint managing conservators. Mother was given primary custody, control, and possession of the child. The Court also ordered that the standard possession order was not in the best interest of the child, and provided for Father to have possession as follows:
On the first, third and fifth Saturday of each month, beginning on June 6, 2009 and continuing on each subsequent first, third and fifth of each succeeding month thereafter beginning at 10 A.M. and terminating at 3:00 P.M. on that same day.
On the first, third and fifth Sunday of each month, beginning on June 7, 2009 and continuing on each subsequent first, third and fifth of each succeeding month thereafter beginning at 10 A.M. and terminating at 3:00 P.M. on that same day;
On the child's birthday on June 13, 2009 from 2 P.M. to 4 P.M. the same day;
On Christmas Day 2009 from 12 P.M. to 4 P.M. the same day;
On Easter Sunday 2010 from 2 P.M. to 6 P.M. on the same day;
On Thanksgiving Day 2010 from 10 A.M. to 6 P.M. on the same day;
On Christmas Day 2011 from 12 P.M. to 6 P.M. the same day;
All pick up and delivery of the child shall be made at the Barnes and Noble Book store located at 1029 W. Bay Area Blvd, Webster Texas 77598.
Beginning on January 1, 2012, Petitioner shall have visitation beginning on January 7, 2012 and continuing each subsequent first, third and fifth weekend of each successive month at 10:00 A.M. on that Saturday and terminating on the next successive Sunday following such Saturday at 6 P.M.
Beginning on January 7, 2012 and thereafter continuing on each successive period of access and/or visitation, such pick up of the child and delivery of the child at the conclusion of such access or visitation shall be made by [Father] to the residence of [Mother].
The trial court ordered that, beginning April 1, 2012, the parties were to comply with a standard possession order. The trial court also ordered Father to pay child support of $316 per month, and retroactive child support of $1,580 to be paid in installments of $50 per month. In addition, the court ordered Father to pay prenatal and postnatal healthcare expenses of $2,971.55 and Mother's attorney's fees of $4,000 as additional child support. Father moved to set aside the order and for a new trial, which the trial court denied. This appeal followed.
II
On appeal, Father raises five issues: (1) the trial court erred in awarding a judgment for retroactive child support when there were no specific pleadings making a request for that relief; (2) the trial court erred in awarding a judgment for retroactive child support without considering the factors set forth in section 154.131 of the Family Code; (3) the evidence is legally and factually insufficient to support a judgment for prenatal and postnatal healthcare expenses; (4) the trial court abused its discretion in unduly limiting the father's possession of or access to the child; and (5) the evidence is factually insufficient to support the award of attorney's fees.
III A
We review the trial court's award of child support, including retroactive child support, for abuse of discretion. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Garza v. Blanton, 55 S.W.3d 708, 710 (Tex. App.-Corpus Christi 2001, no pet.). A trial court abuses its discretion when it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc. 701 S.W.2d 238, 241-42 (Tex. 1985); Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.-Houston [14th Dist.] 2004, no pet.). Under an abuse-of-discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex. App.-Houston [14th Dist.] 2002, no pet.). A trial court does not abuse its discretion when some evidence of a substantive and probative character supports the trial court's order. Newberry, 146 S.W.3d at 235.
B
Father addresses his first and second issues together. First, Father contends that although Mother's answer and cross-petition include a general request for child support, there is no pleading specifically requesting an award of retroactive child support. Father cites two cases for the proposition that specific notice is required when retroactive child support is being sought. See Martinez v. Martinez, 61 S.W.3d 589, 590 (Tex. App.-San Antonio 2001, no pet.); In re J.G.Z., 963 S.W.2d 144, 148 (Tex. App.-Texarkana 1998, no pet.). Father also contends the issue was not tried by consent, because the entire record concerning retroactive support is contained in one question and answer. See In re A.B.H., 266 S.W.3d 596, 600 (Tex. App.-Fort Worth 2008, no pet.) (stating that trial by consent is a doctrine that is only intended to cover the exceptional case in which it clearly appears from the record as a whole that the parties tried the unpleaded issue). Mother responds that, among other things, her affirmative pleading was sufficient to support an award of retroactive child support. On these facts, we agree with Mother.
Texas follows a "fair notice" standard for pleading. Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 896 (Tex. 2000); see also Tex. R. Civ. P. 45 ("All pleadings shall be construed so as to do substantial justice."). In the absence of special exceptions, a petition should be construed liberally in favor of the pleader. Id. at 897; Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993) (op. on reh'g); London v. London, 192 S.W.3d 6, 13 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). Here, Father initiated this action for the purpose of adjudicating parentage and child support. In her counter-petition, Mother requested that the court order Father "to make payments for the support of the child in the manner specified by the Court" and also requested an order for temporary child support. The Family Code specifically provides for an award of retroactive child support on a finding of parentage. See Tex. Fam. Code §§ 154.009; 160.636(g). Father did not specially except to Mother's petition for affirmative relief. Additionally, Father received notice that Mother was requesting retroactive child support when she sought it at trial, and Father did not object to the lack of a specific pleading at trial. Only after the trial court's judgment was signed did Father object in an amended motion for new trial.
On these facts, we conclude that Mother's pleading was sufficient to support the trial court's award of retroactive child support. See Auld, 34 S.W.3d at 897; London, 192 S.W.3d at 13; see also Taylor v. Taylor, ___ S.W.3d ___, No. 02-09-255-CV, 2010 WL 3618717 at *2-3 (Tex. App.-Fort Worth Sept. 16, 2010, no pet. h.) (trial court abused its discretion by refusing to allow mother to introduce evidence concerning retroactive child support when mother pleaded for child support and father did not file special exceptions); Aguilar v. Barker, 699 S.W.2d 915, 917 (Tex. App.-Houston [1st Dist.] 1985, no pet.) (in involuntary paternity suit, mother's petition requesting affirmative relief of child support was sufficient to support award of retroactive child support).
C
Father next complains that the trial court failed to consider the factors specified in Family Code § 154.131 when it ordered Father to pay retroactive child support in the amount of $1,580.
Section 160.636 of the Texas Family Code provides that upon a finding of parentage in a paternity action the trial court may order retroactive child support as provided by Family Code chapter 154. Tex. Fam. Code § 160.636(g); see also id. §§ 154.009, 154.131(a). In rendering an order for retroactive support under this section, the court "shall use the child support guidelines" provided by chapter 154, "together with any relevant factors." Id. § 160.636(h); see also id. § 154.009(b) ("[i]n ordering retroactive child support, the court shall apply the child support guidelines provided by this chapter.").
When ordering retroactive child support, a court must consider the net resources of the obligor during the relevant time period and whether (1) the mother had made previous attempts to notify the obligor of his paternity; (2) the obligor had knowledge of probable paternity; (3) the order will impose an undue hardship on the obligor; and (4) the obligor provided actual support prior to the filing of the action. Id. §§ 154.131(b) (1)-(4). But section 154.131 does not limit the trial court to the listed factors in determining retroactive child support; it merely provides that "the child support guidelines are intended to guide the court in determining the amount of retroactive child support, if any, to be ordered." Id. § 154.131(a).
Here, Father contends the trial court's findings of fact and conclusions of law do not address section 154.131(b), which Father argues indicates "that the trial court failed to consider those factors, or alternatively, that the record does not support the trial court's decision." Father points out that he was unemployed and the Houston Volunteer Lawyer's Program determined him to be without financial resources. He also points out that he was the one who initiated the proceedings to formalize his rights and duties. Father contends the trial court did not consider whether its order would impose an undue hardship on him.
The record shows that Father took odd jobs to help support the child, provided cash support when the child was born, obtained health insurance for the child, and has consistently paid his court-ordered support. Father also testified that he was offering to pay $316 in monthly child support, which was the amount he had been paying under the temporary orders, despite his lack of regular employment. The trial court's award equals five months of the support Father was offering to continue to pay. Q.D.T, Jr. was born June 2008, and according to the record, Father was first ordered to pay $316.78 in monthly child support in January 2009 — seven months after the child was born, and about a month after DNA test results confirmed Father was the child's biological father. Before this, Father had made only one or two payments of $90 in voluntary child support. The court could have concluded that, despite a lack of regular employment, Father was able to afford the monthly payments, and therefore could afford to retroactively pay the same amount.
Further, although Father testified that he was qualified and experienced as a truck driver, he refused to seek employment in that profession because he did not want to be away from the child. The trial court could have reasonably inferred from this testimony that Father was intentionally underemployed. See Tex. Fam. Code § 154.066 (trial court may consider intentional unemployment or underemployment); In re D.S., 76 S.W.3d 512, 520 (Tex. App.-Houston [14th Dist.] 2002, no pet.) (stating that if the actual income of a parent is significantly less than his potential income because of intentional underemployment, the court may consider earning potential in setting child support). On this record, we cannot say the trial court abused its discretion in awarding the retroactive child support.
We overrule Father's first and second issues.
D
In his third issue, Father contends the evidence is legally and factually insufficient to support a judgment for prenatal and postnatal health care expenses. Specifically, Father contends no exhibits were offered or received into evidence and Mother's testimony does not specify any amount of expenses incurred or the nature of the expenses. Thus, he argues there is a complete absence of evidence to support the trial court's finding and order that Father pay prenatal and postnatal expenses of $2,971.55. In response, Mother contends the reporter's record references to parenting plans presumably submitted to the court, but not admitted into evidence, support the award.
Family Code section 160.636 provides that, "on a proper showing," the trial court may order a party to pay an equitable portion of all the prenatal and postnatal health care expenses of the mother and the child. Tex. Fam. Code § 160.636(g). The entirety of the testimony concerning Mother's healthcare expenses is contained in the following portion of Mother's direct examination:
Q. Okay. Now, you're also in your proposal asking for certain things, one of them that the child support be made retroactive back to the date of the child. Obviously, you're willing to give credit for any money that may have been paid voluntarily, whatever amounts [sic] that is?
A. Right.
. . .
Q. You've also included a copy which is all of the medical bills that have been incurred. And you've given a summary to the Court and to opposing counsel?
A. Yes.
Q. Now, that summary is the actual money that you're out, not the money that's owed or paid or anything else?
R. Right. Correct. That is only what I have actually paid out of my own money. . . .
No supporting exhibits were admitted into evidence. The trial court's findings of fact included findings that (1) Mother incurred medical expenses for the birth of the child in excess of $6,000 and Father should assume fifty percent of all unreimbursed medical expenses, and (2) Father should pay and is ordered to pay to Mother $2,972.55 for medical costs incurred on behalf of the child.
Father argues that it is impossible to calculate from the record any amount, much less the amount the trial court determined. Mother responds that the record is "replete" with references from both parties as to a proposed parenting plan "which had been presented to the Court and both trial counsel" but was not admitted into evidence and is not in the clerk's record. Mother points out that her attorney referred to Father's parenting plan when he examined Father concerning the amount of child support he proposed to pay, and Father corrected the attorney by explaining that the amount he proposed was $316 per month, not $315 per month as the attorney had stated. Mother also points out that Father's counsel did not object to the testimony concerning medical bills or challenge the assertion that copies of the bills had been provided to opposing counsel and the court.
Consequently, the record contains Father's testimony that he proposed to pay $316 per month, as provided in his proposed parenting plan, and that this amount was what he was currently paying. Therefore, the record contains evidence, in the form of Father's testimony, concerning the amount he proposed to pay. In contrast, there is no testimony by Mother of any amount of expenses she had incurred.
Generally, courts have held that documents not introduced into evidence at trial are not properly included in the record and cannot be considered on appeal. See, e.g., Barnard v. Barnard, 133 S.W.3d 782, 789 (Tex. App.-Fort Worth 2004, pet. denied); Reyes v. Reyes, 946 S.W.2d 627, 630 (Tex. App.-Waco 1997, no writ). Father acknowledges the line of cases recognizing an exception for "evidence that is not objected to and that the trial court and the parties treat as admitted." See, e.g., Sanchez v. Bexar County Sheriff's Dep't, 134 S.W.3d 202, 203 (Tex. 2004); Tex. Health Enters., Inc. v. Tex. Dep't of Human Servs., 949 S.W.2d 313, 314 (Tex. 1997); see also In re A.G.C., 279 S.W.3d 441, 450 (Tex. App.-Houston [14th Dist.] 2009, no pet.) (stating that when both parties treated their mediated settlement agreement as evidence in the trial court and no contested issues were presented, appellant could not complain on appeal that agreement was not in evidence).
Here, however, the parties' references to "proposed parenting plans" are intermittent and do not indicate that the parties agreed to their contents. Although it is unclear, the parties appear to have each prepared their own proposed parenting plans — presumably because they could not reach an agreement — indicating that they contested each other's plan. Cf. Tex. Fam. Code § 153.007 (authorizing parties to enter written "agreed parenting plan").
Further, no parenting plans or medical bills are included in the clerk's record for us to review. In the cases cited above, the document at issue was filed with the trial court and the appellate courts either had the document in the record before them or were directed to file it. See Sanchez, 134 S.W.3d at 203 (certified copy of administrative record filed as exhibit to motion for summary judgment); Tex. Health Enters., 949 S.W.2d at 313-14 (administrative record filed with court clerk); In re A.G.C., 279 S.W.3d at 444, 450 (mediated settlement filed with the court). Although it appears from Mother's testimony that her parenting plan and copies of her medical bills were "presented" to the trial court and opposing counsel, there is no indication they were actually filed with the court, and Mother does not represent on appeal that her parenting plan was in fact filed and therefore could have been included in the record. Moreover, in its findings of fact the trial court specifically states that Father, "prior to the commencement of trial, submitted a `Proposed Parenting Plan,'" but the court does not correspondingly state that Mother also submitted a proposed parenting plan. Nor does the trial court state that it relied on Mother's proposed parenting plan or any other documents in determining the amount of expenses awarded.
Mother contends that the Father has waived this issue because he failed to bring forward a complete record. The only case Mother cites as support, however, is an unreported opinion that apparently was withdrawn and replaced with an opinion on rehearing that does not contain the cited proposition. Further, although Mother notes in her brief that the unpublished opinion cites two other cases, those cases are distinguishable because in both the court found waiver when the appellant failed to provide a reporter's record and the issues raised required reviewing the evidence below. See Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.-Houston [1st Dist.] 2007, no pet.); Aguero v. Aguero, 225 S.W.3d 236, 237-38 (Tex. App.-El Paso 2006, no pet.). In contrast, Father provided a complete reporter's record for consideration on appeal.
On this record, we conclude that Mother has not made "a proper showing" of her expenses as contemplated under Family Code section 160.636(g). In the absence of any evidence to support the trial court's findings and judgment that Father pay $2,971.55 of Mother's prenatal and postnatal healthcare expenses, we conclude the trial court abused its discretion and sustain Father's third issue.
IV
In his fourth issue, Father contends the trial court abused its discretion in "unduly limiting" Father's possession of or access to the child. We review an order for conservatorship or possession of a child for abuse of discretion. Roosth v. Roosth, 889 S.W.2d 445, 451 (Tex. App.-Houston [14th Dist.] 1994, writ denied).
Father contends that the trial court deviated from Family Code section 153.251, which provides that "the standard possession order is designed to apply to a child three years of age or older" when it ordered that a standard possession order would not be applied until April 1, 2011, when the child is almost four years old. Father also complains of the limited time he is allowed possession until January 7, 2012. Specifically, Father argues that if he is able to exercise every single hour allowed, "he will have access to his son less than 13 full days per year until the child is approximately 3½ years old."
Father also complains that the trial court failed to make written findings that its limitations on his rights and duties were in the best interest of the child. See Tex. Fam. Code § 153.072. Father asserts the findings of fact and conclusions of law the trial court filed provide "no guidance" concerning its variance from the standard possession order. But the record does not reflect that Father ever requested the court make findings stating the specific reasons for the variance. See Tex. Fam. Code § 153.258 ("[I]n all cases in which possession of a child by a parent is contested and the possession of the child varies from the standard possession order, on written request made or filed with the court not later than 10 days after the date of the hearing or on oral request made in open court during the hearing, the court shall state in the order the specific reasons for the variance from the standard order."). Therefore, the trial court was not required to enter the findings.
Father notes that the Family Code codifies the public policy of Texas to "(1) assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child; (2) provide a safe, stable, and nonviolent environment for the child; and (3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage." Id. § 153.001(a). Father also suggests that the trial court's order reflects a preference given to the mother over the father that is contrary to Family Code section 153.003 which provides that, when determining whether to appoint a party as joint managing conservator, the court "shall consider the qualifications of the parties without regard to their marital status or to the sex of the party or the child." Id. § 153.003.
Father points out that Mother testified to no specific concerns about Father's parenting skills, except that she felt both Father and son needed to get to know each other gradually:
Q. Why do you believe your son needs limited time with his father simply because he's under three?
A. I don't feel like he needs limited time. I just think that he needs to be kind of how can I put this: [Q.D.T., Jr.] is used to being just around our family. I think it's very important for [Father] to see [Q.D.T., Jr.]. And I think that since he wasn't there for basically the first four months of his life, that, you know, it need[s] to be kind of a progression for him to get to know him. We started off with the visitations and I think that that was a really good starting point. And now [Father's] getting him on the first, third, and fifth, so I think we're just going about a natural progression for him to be sending more time with him and not just throw him out there, as well as allowing [Father] a chance to become acclimated to becoming a father.
It's hard. It's a hard job. And I wouldn't want to just throw that on him because the only person that would suffer would be [Q.D.T., Jr.].
Father also points out that he was the one who initiated the proceedings with both the Attorney General's Office and the trial court because Mother was withholding the child, and it is disingenuous for her to now say that Father's access should be restricted because the child needs time to adjust to his father. Father also urges us to consider, in addition to the best interest of the child, the interests of a "devoted father, a doting grandmother, and an aging great grandmother" and the importance of spending time with a young child.
Under the Family Code, the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child. Id. § 153.002. Our courts have recognized numerous facts the courts consider when determining the best interest of the child. See, e.g., Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (listing factors); In re C.A.M.M., 243 S.W.3d 211, 221 (Tex. App.-Houston [14th Dist.] 2007, pet. denied) (same). Further, concerning possession orders for children under three years old, the court is to render an order "appropriate under the circumstances" for possession of the child and is to render a prospective order that takes effect on the child's third birthday, which presumptively will be the standard possession order. Tex. Fam. Code § 153.254. Here, the trial court's order concerning possession at the time the child turns three is more restrictive than the standard possession order for the first ten months of his third year.
In ordering terms of possession other than a standard possession order, the trial court shall be guided by the guidelines established by the standard possession order and may also consider: (1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor. Id. § 153.256. A trial court may find that it is in the best interest of the child that a parent does not have overnight visitations. In re R.D.Y., 51 S.W.3d 314, 324 (Tex. App.-Houston [1st Dist.] 2001, pet. denied). When a trial court denies a parent overnight visitations with the child, it has not denied the parent's visitation rights. Id.
The record shows that Father was present for the birth of his child and saw him several times until August 14, 2008. After the trial court entered temporary orders, Father consistently saw his child as ordered and as the parties agreed. At the time of trial, Father was seeing Q.D.T., Jr. on the first, third, and fifth weekend of every month from 10:00 a.m. to 3:00 p.m. Some of Father's early visits were supervised by the SAFE program, but later visits were unsupervised. According to Mother, the record shows that Father has seen his child only twenty-six times since August 14, 2008. Mother testified that Father had never asked her if he could see his child at any time other than the court-ordered times.
In addition to Mother's testimony about her reasons for limited visitation, Mother testified that Father threatened to commit suicide upon learning of her pregnancy. She also testified that during her pregnancy and when the child was first born, Father would "get mad and then he would disappear" and she was afraid he would continue that pattern. Mother also testified that she was concerned for the child's safety at Father's home because the home was in poor condition. There was also evidence that Mother and Father had difficulty communicating concerning visits and the child's care. Thus, there was evidence of factors the trial court could have considered in limiting Father's visitations until the child was older. Accordingly, we cannot say that the trial court abused its discretion in determining that the standard possession order was unworkable or inappropriate for Q.D.T., Jr. and providing for limited possession until the child was three years and ten months old.
We overrule Father's fourth issue.
V
In his fifth issue, Father contends the evidence is factually insufficient to support the trial court's award of $4,000 in attorney's fees to Mother. Specifically, he contends the direct testimony of Mother's attorney "took a mere 15 lines" in the reporter's record, no itemized invoices or summaries were offered into evidence, there was no meaningful description of the services performed, and no opinion as to whether the amounts sought in this case are reasonable or necessary.
The reasonableness of attorney's fees is a question of fact to be determined by the trier of fact and must be supported by competent evidence. Reyna v. Reyna, 584 S.W.2d 926, 927 (Tex. App.-Houston [14th Dist.] 1979, no writ); Woollett v. Matyastick, 23 S.W.3d 48, 52 (Tex. App.-Austin 2000, pet. denied). The party seeking to recover attorney's fees carries the burden of proof. Stewart Title Guar. Co. v. Sterling, 822 S.W.2d 1, 10 (Tex. 1991). We review an award of attorney's fees for an abuse of discretion. Hardin v. Hardin, 161 S.W.3d 14, 24 (Tex. App.-Houston [14th Dist.] 2004, pet. granted, judgm't vacated w.r.m.).
We agree with Father that the record contains no evidence that the attorney's fees awarded were reasonable. At trial, Mother's attorney testified as follows:
I've been licensed in the State of Texas since 1976. I'm familiar with these type of cases and the normal charges that are charged in such cases. My hourly rate is $250.00. I have expended approximately 18 hours on this case including mediation, as well as temporary hearings on December 23rd, as well as filing cross actions, discussions, [and] exchanges with the attorney.
I am asking this Court to award $5,500.00. Although that's less than the rate if we were to multiply 250 by 18 hours, but that is presently what's being billed and what she's obligated for. And I would ask that [Father] be ordered as additional child support to reimburse [Mother] for those attorney's fees.
On cross-examination, Mother's attorney agreed that $250 multiplied by 18 was $4,500, not $5,400, and clarified that he was requesting $4,500. He also stated he brought no itemized bills with him.
In awarding attorney's fees under the Family Code, the court may not take judicial notice that usual and customary fees are reasonable; the party must offer legally and factually sufficient evidence on the issue. See, e.g., London v. London, 94 S.W.3d 139, 147-49 (Tex. App.-Houston [14th Dist.] 2002, no pet.); Woollett, 23 S.W.3d at 52-53; see also Charette v. Fitzgerald, 213 S.W.3d 505, 514-15 (Tex. App.-Houston [14th Dist.] 2006, no pet.) (stating that, in actions other than those identified in section 38.001 of the Texas Civil Practice and Remedies Code, the trial court may not take judicial notice that the usual and customary fees are reasonable and the party must offer legally and factually sufficient evidence of reasonableness).
Mother responds that Father's attorney did not file a motion below complaining about the attorney's-fee award and it is therefore waived, citing Texas Rule of Appellate Procedure 33.1. But a motion for new trial is not required to preserve a factual-sufficiency issue in a bench trial. Tex. R. Civ. P. 324(a), (b). Moreover, Texas Rule of Appellate Procedure 33.1 expressly provides that in a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence may be made for the first time on appeal in the complaining party's brief. Tex. R. App. P. 33.1(d).
Because the attorney's fee award is not supported by sufficient evidence that the fees were reasonable, we conclude that the trial court abused its discretion in awarding attorney's fees in the amount of $4,000. We sustain Father's fifth issue.
* * *
We overrule Father's first, second, and fourth issues, and we sustain his third and fifth issues. We therefore modify the trial court's judgment to vacate the awards to Mother of prenatal and postnatal healthcare expenses of $2,971.55 and attorney's fees of $4,000. We affirm the judgment as modified.