Full Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN NO. 03-23-00787-CV Patricio Hernandez, Appellant v. Amber Frithiof, Appellee FROM THE COUNTY COURT AT LAW NO. 2 OF WILLIAMSON COUNTY NO. 08-2922-FC2, THE HONORABLE JOHN B. MCMASTER, JUDGE PRESIDING MEMORANDUM OPINION Patricio Hernandez appeals the order modifying child support and awarding attorney’s fees to Amber Frithiof. He challenges the failure to order a step-down in child support when a child reaches majority, the failure to segregate attorney’s fees between enforcement and modification, and the sufficiency of the evidence to support the award. He contests findings of fact and conclusions of law made after an abatement and remand. We will modify the judgment consistent with Frithiof’s motion for remittitur to effectuate the proper step-down in child support, reverse the award of attorney’s fees, and remand for further proceedings. BACKGROUND The parties are parents together of two children—one born in 2006 and the other born in 2007. The parties were the subject of multiple orders in suits affecting the parent-child relationship (SAPCR) beginning with an agreed SAPCR order in which they were named joint managing conservators with Hernandez permitted to determine the children’s residence; Frithiof was ordered to pay Hernandez child support. In 2020, while considering cross-motions to modify, the court issued temporary orders making Frithiof sole managing conservator, barring Hernandez from contacting the children, and requiring Hernandez to pay $1,750 in monthly child support to Frithiof. Hernandez separately filed protective orders concerning his children. In November 2022, he was divorced from a subsequent wife after a trial. In December 2022, he was convicted of sexually assaulting his stepdaughter and sentenced to twenty-eight years in prison. He also stopped paying child support to Frithiof in December 2022. His live pleading maintained a claim to be appointed sole managing conservator through the May 2023 hearing, though his lawyer reportedly informed Frithiof’s counsel the week before the hearing that he would not assert that claim. The main contested issue at the hearing was child support. Hernandez’s counsel explained at the resumption of the hearing in July 2023 that, as noted in May 2023 testimony, Hernandez had been terminated as an employee from his company, was no longer receiving income, and could no longer provide health insurance for the children through the company. Testimony revealed, however, that Hernandez was paying $600 in monthly child support to the mother of a three-year-old child. This appeal arises from a 2023 order modifying the parent-child relationship supplemented by findings of fact and conclusions of law filed on remand during an abatement. The trial court used the child-support guidelines to require Hernandez to pay $1,750 per month in child support for the twenty-two months until their last child emancipated. This amounted to a total of $38,500, which the court ordered Hernandez to pay in a lump sum. The court also ordered him to pay $26,400 in a lump sum for medical and dental insurance for the same period. The court also awarded $12,500 in child-support arrearages and $15,000 in unreimbursed 2 medical and dental expenses. The court also awarded Frithiof $20,000 in attorney’s fees enforceable as child support plus $35,000 in attorney’s fees enforceable as a civil judgment. In its later findings of fact and conclusions of law, the court listed the support amounts as $33,950 in child support, $18,600 in medical support, $15,000 in uncovered medical support, and $12,500 in child-support arrearages. The court reiterated the attorney’s fees awards. DISCUSSION Hernandez’s eighteen points of error—four from his original brief and fourteen supplemental points—fall into three general categories: child and medical support, attorney’s fees, and findings regarding actions allegedly taken to obscure his assets and non-meritoriously oppose Frithiof’s suit. I. Excessive child support and medical support Frithiof agrees with Hernandez’s Point of Error 1 urging that the trial court erred by failing to reduce the amount of child and medical support due when their elder child reached majority. Frithiof filed a motion for remittitur of the excess award and calculated the amount. She proposed that the proper lump-sum amount of the child support is $33,950 1 and the proper lump-sum amount of medical support is $18,600. 2 These amounts match those contained in the findings of fact and conclusions of law. Hernandez did not contest these decreased amounts in his supplemental points of error. 1 This total is based on nine months at $1,750 for a subtotal of $15,750 and thirteen months at $1400 for a subtotal of $18,200 for a combined total of $33,950 in child support. 2 This total is based on nine months at $1,200 for a subtotal of $10,800 plus thirteen months at $600 for a subtotal of $7,800 for a combined total of $18,600. 3 We conclude that the trial court abused its discretion by requiring Hernandez to pay child and medical support for the elder child after she reached majority and by failing to reduce the support awards consistent with amounts urged by Frithiof’s motion for remittitur and found by the trial court in its findings and conclusions. See Newberry v. Bohn-Newberry, 146 S.W.3d 233, 237 (Tex. App.—Houston [14th Dist.] 2004, no pet.). Our modification of the judgment resolves Point of Error 1. II. Attorney’s fees Hernandez’s initial brief included Point of Error 4, complaining of the absence of findings of fact and conclusions of law. This Court abated and remanded this cause to allow the trial court to make findings of fact and conclusions of law, mooting Point of Error 4. By Point of Error 3 and Supplemental Points of Error 6 and 7, Hernandez complains that the trial court erred in awarding $20,000 in attorney’s fees enforceable in the same manner as child support because of the absence of evidence segregating those fees from other attorney’s fees (Point 3), in implicitly finding that Frithiof properly segregated enforcement fees from modification fees (Supp. Point 7), and in concluding that Hernandez was ordered to pay $20,000 fees collectible in the manner of child support (Supp. Point 6). However, parties opposing attorney’s fees awards on the grounds that the requestor failed to segregate types of work done to earn the fees must object to that failure at the trial—even in a bench trial. See Green Int’l, Inc. v. Solis, 951 S.W.2d 384, 389 (Tex. 1997); Horvath v. Hagey, No. 03-09-00056- CV, 2011 WL 1744969, at *6 (Tex. App.—Austin May 6, 2011, no pet.) (applying Green to a non-jury trial). We overrule Point of Error 3 and Supplemental Points of Error 6 and 7. 4 The fees awards are subject to review for the sufficiency of the evidence supporting them. Green, 951 S.W.2d at 390. By Point of Error 2, Hernandez contends that the court abused its discretion by awarding Frithiof $55,000 in attorney’s fees because there was legally or factually insufficient evidence that the awarded fees were reasonable and necessary. By Supplemental Points of Error 1 and 2, Hernandez contends that findings of fact that the attorney’s fees awarded to enforce the child-support orders ($20,000) and the modification case ($35,000) are reasonable and necessary are supported by no evidence or insufficient evidence; 3 he contends by Supplemental Point of Error 5 that any implied finding that the fees were reasonable and necessary is supported by no or insufficient evidence. He contends by Supplemental Points of Error 3 and 4 that conclusions of law ordering him to pay those amounts are erroneous. Frithiof urges that Hernandez failed to preserve his complaints about the sufficiency of the evidence because he did not object to her attorney’s fees exhibit. We are not persuaded by this argument because we conclude that Hernandez did not waive the complaint and because Frithiof bears the burden to prove her entitlement to attorney’s fees. In the July 2023 hearing, Hernandez’s attorney stated, “So we certainly have stipulated to the admissibility of the exhibits, and perhaps reasonable and necessary, but certainly not that I agree in any way, shape or form that he should have to pay any attorney’s fees.” Hernandez’s attorney did not object when Frithiof’s attorney offered his redacted attorney’s fees exhibit and did not cross-examine him, though she did object during the attorney’s presentation. The absence of objection to the exhibit waived only a complaint about the admissibility of the exhibit. See Tex. 3 In the context of Hernandez’s briefs, we understand he means the term “no evidence, or alternatively, insufficient evidence” to mean legally or factually insufficient evidence. 5 R. App. P. 33.1(a) (generally parties must preserve appellate issues by first presenting them to trial court and getting a ruling). In a nonjury civil trial, an appellant is not required to preserve allegations of legal or factual insufficiency. Tex. R. App. P. 33.1(d); Bass v. Walker, 99 S.W.3d 877, 883 (Tex. App.—Houston [14th Dist.] 2003, pet. denied). An argument that there was no evidence during a bench trial that attorney’s fees were reasonable is a sufficiency-of-the- evidence complaint that may be raised for the first time on appeal. Gipson-Jelks v. Gipson, 468 S.W.3d 600, 604 (Tex. App.—Houston [14th Dist.] 2015, no pet.). In his original brief, Hernandez objected to the lack of expert testimony supporting the reasonableness and necessity of the fees requested. He asserts that Frithiof’s attorney did not testify. However, when the trial court asked, “Do you have any testimony you wish to proffer?” Frithiof’s counsel replied, “A little bit,” then spoke about his attorney’s fees. “Normally, an attorney’s statements must be under oath to be considered evidence.” Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). But this Court has adopted the rule that an attorney’s statements not under oath can be treated as testimony if circumstances put the other party on notice that the statements are intended as testimony and non-testifying party does not object. In re Wallingford, 64 S.W.3d 22, 24-25 (Tex. App.—Austin 1999, orig. proceeding). In the course of counsel’s presentation, Hernandez’s attorney objected to hearsay. During the discussion of the objection, Frithiof’s counsel stated, “I can admit it through my own testimony right now.” At the conclusion of his presentation, Frithiof’s counsel said, “I pass myself,” and Hernandez’s counsel stated she had no questions. The initial question by the court put everyone on notice that it intended to treat Frithiof’s counsel’s statement as testimony, and Hernandez’s counsel’s conduct indicated that was understood. Any objection to the lack of an oath was 6 waived and we will treat Frithiof’s counsel’s statements about attorney’s fees at the July 2023 hearing as testimony. A. Standards for attorney’s fees award Attorney’s fees are awarded for reasonable hours worked multiplied by a reasonable hourly rate. Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 501 (Tex. 2019). Evidence of reasonable and necessary attorney’s fees includes, at minimum, “evidence of (1) particular services performed, (2) who performed those services, (3) approximately when the services were performed, (4) the reasonable amount of time required to perform the services, and (5) the reasonable hourly rate for each person performing such services.” Id. at 498, 502. Billing records are not required but are “strongly encouraged” to prove the reasonableness and necessity of requested fees when contested. Id. In an appeal from a bench trial, a trial court’s findings of fact have the same weight as a jury’s verdict. Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991). When the appellate record includes a reporter’s record, as here, challenged findings of fact are not conclusive and are binding only if supported by the evidence. HTS Servs., Inc. v. Hallwood Realty Partners, L.P., 190 S.W.3d 108, 111 (Tex. App.—Houston [1st Dist.] 2005, no pet.). Courts of appeals review a trial court’s findings of fact under the same evidentiary sufficiency standards used when determining if sufficient evidence exists to support an answer to a jury question. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994); see City of Keller v. Wilson, 168 S.W.3d 802, 810, 827-28 (Tex. 2005) (describing legal-sufficiency review of evidence). 4 4 When conducting a legal-sufficiency review, we credit favorable evidence if a reasonable factfinder could do so and disregard contrary evidence unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). We consider the evidence 7 “[I]n a bench trial, the trial court, as fact-finder, is the sole judge of the credibility of the witnesses.” Southwestern Bell Media, Inc. v. Lyles, 825 S.W.2d 488, 493 (Tex. App.—Houston [1st Dist.] 1992, writ denied). B. Arguments and evidence The record contains Frithiof’s attorney’s fees bills and the attorney’s testimony about the challenges of this lawsuit. He talked about the wide-ranging preparation caused by Hernandez’s pleadings and tactics and explained the extenuating circumstances that made his fees request comparable to Hernandez’s lesser claim. Frithiof requested $72,540. Hernandez contends that Frithiof’s attorney’s fees records were so heavily redacted that it was impossible to ascertain what work was done. Though he did not make that argument until his supplemental brief, the redactions affect our sufficiency review regardless. C. Application The determinative factor is whether the bills provide sufficient evidence to support the trial court’s exercise of discretion regardless of how much or little they were redacted. Person v. MC-Simpsonville, SC-1-UT, LLC, No. 03-20-00560-CV, 2021 WL 3816332, at *9 (Tex. App.—Austin Aug. 27, 2021, no pet.) (mem. op.). While some of the line items are unredacted, others are partly redacted, and some are almost entirely obscured except for the date, the worker’s initials, the amount of time claimed, the rate, and the amount billed. The redactions of the work performed eliminated in the light most favorable to the finding under review, and we indulge every reasonable inference that would support the finding. Id. at 822. 8 information that would have tied the bill items to particular actions performed. One page contains items that say “Email to/from [redacted],” “Prepare for [redacted]. Read [redacted],” “Review [redacted] start drafting [redacted],” and “Discuss [redacted] discuss [redacted] research on [redacted],” billing more than $2,000 for these actions. These redactions eliminated information that would have allowed Hernandez to challenge the claim that the charges were reasonable. This evidence is much like what we found insufficient in Person, where we wrote: [T]he majority of entries on the redacted billing records show only that an attorney or other legal professional had a telephone conference with somebody about something, emailed somebody about something, discussed something with somebody, reviewed something, researched something, drafted something, coordinated something, or worked on something. As a whole, the redacted billing records admitted in evidence were not sufficient, in light of the supreme court’s admonitions in Rohrmoos concerning the need to identify specific tasks performed, to allow the trial court to evaluate the reasonableness and necessity of hours worked[.] Id. at *9. Frithiof’s attorney’s testimony did not fill in the gaps left by the redactions. Frithiof had the burden to prove the reasonableness and necessity of her attorney’s fees requested. See Rohrmoos, 578 S.W.3d at 484. The evidence was legally insufficient to support the amount of fees awarded. See id. at 505. However, Frithiof provided more than a scintilla of evidence that she incurred some amount of reasonable and necessary attorney’s fees. Accordingly, we decline to render judgment that Frithiof take nothing on her claim for attorney’s fees. Under Rohrmoos, the remedy is remand for further proceedings on attorney’s fees. Id. Because the evidence is not sufficient to support the trial court’s exercise of discretion in awarding the amount claimed, we sustain Hernandez’s Point of Error 2 and Supplemental Points of Error 1, 2, and 5 to the extent that they challenge the legal sufficiency of the amount of the attorney’s fees award and overrule 9 those same points to the extent that they challenge the insufficiency of the evidence to support an award of attorney’s fees. We sustain his Supplemental Points of Error 3 and 4 asserting that the amount of the attorney’s fees awarded was erroneous, reverse the award of attorney’s fees, and remand that issue to the trial court for further proceedings. III. Findings and conclusions about Hernandez and his associates’ actions We do not reach the merits of the remaining issues. See Tex. R. App. P. 47.1 (requiring opinions to be brief as possible while addressing all issues necessary to disposition of case). By Supplemental Points of Error 8–14, Hernandez challenges several findings of fact that Hernandez, his pleadings, his family, and his agents acted to harass Frithiof, obscure his assets, and non-meritoriously oppose her motions, causing her to incur additional attorney’s fees. Even if all of these issues were meritorious and sustained, none would require rendition of judgment. Because we have reversed the attorney’s fees award and remanded for further proceedings, reviewing these challenged findings and conclusions would not alter the disposition of this appeal. These findings and conclusions may be revisited on remand and revised if appropriate. CONCLUSION We modify the trial court’s order to require Hernandez to pay a lump sum of child support of $33,950 and a lump sum of medical support of $18,600, and affirm the awards of those modified amounts of child support and medical support. We reverse the award of attorney’s fees and remand for further proceedings. __________________________________________ Darlene Byrne, Chief Justice 10 Before Chief Justice Byrne, Justices Triana and Kelly Modified and, as Modified, Affirmed in Part; Reversed and Remanded in Part Filed: September 30, 2026 11