Opinion
NO. 01-17-00394-CV
08-01-2019
STEPHANIE ZOANNI, Appellant v. LEMUEL DAVID HOGAN, Appellee
On Appeal from the 246th District Court Harris County, Texas
Trial Court Case No. 2010-34811
MEMORANDUM OPINION
After Stephanie Zoanni and Lemuel David Hogan agreed to a modification of the custody arrangements for their child, the trial court signed a judgment that embodied those terms and awarded Hogan $93,303.11 in attorney's fees and court costs. In this appeal, Zoanni challenges the attorney's-fee award, contending that Hogan failed to segregate fees incurred in a separate defamation action against Zoanni from those incurred in the custody modification proceeding. We affirm.
BACKGROUND
In 2014, Zoanni and Hogan filed cross-petitions to modify the terms of child custody set forth in their 2011 divorce decree. In July 2015, Hogan amended his petition to include various tort claims arising from defamatory statements that Zoanni had made about him. These claims were severed and tried under a separate case number, and most recently were the subject of this court's opinion and judgment in Zoanni v. Hogan, 555 S.W.3d 321 (Tex. App.—Houston [1st Dist.] 2018, pet. filed).
The custody modification judgment challenged in this appeal reflects that the parties waived a jury trial, and "all questions of fact and law" were submitted to the trial court. The judgment recites that the court reporter made a record of the testimony and other evidence presented to the trial court, but the record on appeal does not include the reporter's record.
After entry of the judgment, Zoanni filed a motion for new trial challenging the propriety of the attorney's-fee award, but the clerk's record contains no evidence either supporting or contesting the amount of fees sought, nor does it demonstrate that the motion was ever submitted or argued to the trial court.
We may not consider the excerpts of the fee agreement between Hogan and his counsel included in Zoanni's brief. According to the brief, the agreement is contained in a supplemental clerk's record, but no supplemental record was ever filed in this court. "The attachment of documents as exhibits or appendices to documents filed by a party in an appellate court is not formal inclusion in the record on appeal and, therefore, such documents cannot be considered." Fox v. Alberto, 455 S.W.3d 659, 668 n.5 (Tex. App.—Houston [14th Dist.] 2014, pet. denied).
DISCUSSION
In response to Zoanni's issues on appeal, Hogan contends, among other things, that Zoanni filed an incomplete record on appeal and, as a result, this court must presume that the evidence supports the trial court's judgment, including the fee award. The appellant bears the burden to bring forward on appeal a sufficient record to show the error committed by the trial court. Huston v. United Parcel Serv., Inc., 434 S.W.3d 630, 636 (Tex. App.—Houston [1st Dist.] 2014, pet. denied) (citing Nicholson v. Fifth Third Bank, 226 S.W.3d 581, 583 (Tex. App.—Houston [1st Dist.] 2007, no pet.)); see also Christiansen v. Prezelski, 782 S.W.2d 842, 843 (Tex. 1990) (per curiam) ("The burden is on the appellant to see that a sufficient record is presented to show error requiring reversal."). "The appellate record consists of the clerk's record and, if necessary to the appeal, the reporter's record." TEX. R. APP. P. 34.1. The lack of the reporter's record, which ostensibly contains testimony and evidence supporting Hogan's request for attorney's fees, makes it impossible for this court to review the challenged ruling. See Huston, 434 S.W.3d at 636 (citing Brown Mech. Servs., Inc. v. Mountbatten Sur. Co., 377 S.W.3d 40, 44 n.1 (Tex. App.-Houston [1st Dist.] 2012, no pet.)).
In the absence of a reporter's record, "[w]e indulge every presumption in favor of the trial court's findings." Bryant v. United Shortline Inc. Assur. Servs., N.A., 972 S.W.2d 26, 31 (Tex. 1998); see also Willms v. Am. Tire Co., 190 S.W.3d 796, 803 (Tex. App.—Dallas 2006, pet. denied) ("[W]hen an appellant fails to bring a reporter's record, an appellate court must presume the evidence presented was sufficient to support the trial court's order.").
Because we do not have the reporter's record, we have no way of ascertaining what evidence the court considered when it made its determination on the amount of attorney's fees to award or whether Hogan's request for fees was limited to the fees he incurred in the custody modification proceeding. See Huston, 434 S.W.3d at 636 (remarking that appellant's failure to obtain reporter's record containing challenged ruling makes it impossible for appellate court to determine whether trial court abused its discretion). We therefore presume, in the absence of a reporter's record, that the evidence before the trial court supports its finding that Hogan is entitled to recover $93,202.11 for reasonable and necessary attorney's fees and costs incurred in the custody modification proceeding. See Bryant, 972 S.W.2d at 31; Willms, 190 S.W.3d at 803; see also In re J.W., 97 S.W.3d 818, 825 (Tex. App.—Dallas 2003, pet. denied) (holding that because there was no record of evidence adduced at trial concerning child support, appellant presented nothing for review on his claim for additional retroactive child support).
CONCLUSION
We affirm the judgment of the trial court.
Gordon Goodman
Justice Panel consists of Justices Keyes, Goodman, and Landau.