Affirmed in P art , R eversed and R endered in P art and Opinion filed April 27 ,

2023.

In The



## Fourteenth Court of Appeals

NO. 14

- 21

- 00414

- CV
WILLIAM JOSEPH DONNELLY, III , Appellant
V.
LIESSA ANNE SPECK , Appellee
On Appeal from the 300th District Co urt Brazoria County, Texas T r ial Court Cause No. 41466

OPINION In three issues, appellant William Donnelley ( “ Father ” ) appeals the trial court’s judgment modifying the joint managing conservatorship with respect to his parental ri ghts of Cassandra, his m ino r daught er. 1 He contends that (1) there was insufficient evidence to support t he court ’s modification order granting a ppellee,

1 We use a pseu donym to re fer to the minor child in this lawsuit

. See Tex. R. App. P. 9.8

.2

Liessa Speck (“Mother”) , the exclusive rights to make psychiatric decisions with respect to Cassandra, (2) the trial cour t a bu se d its d i scretion in failing to require that appellee segregate portions of the attorney s ’ fees that made up the court’s award, and (3) the court abused its discretion in denying a continuance and some of the accommodations that he reque sted prior to tria l. We reverse and rende r t he trial court’s award of attorneys ’ fees, and otherwise affirm.

I. F ACTUAL AND P ROCEDURAL B ACKGROUND

The Pleadings
Mother filed a lawsuit seeking to modify the terms of the joint managing conservatorship with F ather concerning C as sandra as provided in th e 2009 fi nal divorce decree and two subsequent modification order s entered in 2013 and 2018. Pertinent to th is appeal, the lawsuit seek s for Mother to retain exclusive rights to make medical decisions for Daught er, alleging that Fa ther’s involvement in Da ughter’s ongoing medical treatment impeded aspects of Cassandra’s treatment and presented unnecessary hardships for Mother

. Also, a lleging that Father failed to participate in co unseling that the parties agreed would help mend Fa th er ’ s and Cassandra ’s rel ationship, the lawsuit soug ht that Father be ordered to have such counseling with Cassandra

. Among other additional aspects, t he lawsuit also sought attorneys ’ fees.
Father also filed his ow n pleading whi ch among other claims a nd allegations, included claims r elated to c ounseling with C assandra.
Pr e
- Trial While the modification lawsuit was pending, prior to the modification trial, the parties filed various motions for enforcement and c ontempt in connection with child support a nd custodial arrangements.3

Also, roughly five months prior to trial , the court held an interview with Cassandra ( then age 14 ) , who discussed with the court on the record the challenges in her relationship with Fa ther, including his overbearing concern of h er diabetic condition , his monit oring of her blood sugars, and related micromanagement of her diet and exercise. She described one in cident that resulted in a physical altercation after she reported that she had consumed a piece of bread. Cassandra tes ti fied that Father had interfered with her medical treatment. Cassandra indicated to the court her desire to continue living with Mother as she had throughout her childhood, but also a desire to continue maintai ni ng her relationship and contact with Fathe r. Though Father made numerous re quest s for disability findings and accommodations , the request most pertinent to this appeal , filed w eeks before trial, was Father ’s Amended Emergency Request for Accommodation, Re quest for Clarification, Motion to Compel Di scovery, and Request f or Continua nce (“ E mergency M otion”). The court d enied th e request for continuanc e but made certain , though not all, accommodations re quested.
The B ench T

rial
The bench trial of the modi fication lawsuit lasted two days, and com pri se d of testimony from Mother, Fathe r, and Mother’s attorney. Mother and Father both testified about their respective relationships with Cassandra

. Mother testified that Father interfered with m edical treatmen ts, and that this inter fered with her abilit y to mai ntain coverage for treatmen t for Cassandra while in her care
. Cassandra has a primary care physician and other doctors including endocri nologist s in Houston . Father testified that when Cassandra visited him in Arizona she had a primary care physi ci an and an endocrinologist in Arizona . To

ex plain why he wanted Cassandra to have a primary care physician in Arizona, he stated:4

I wanted to ensure that she was in good health before sending her back to her mo ther. She had some immunizations that were d ue
. I wanted to have her A1c checked, and also she had some blood work done to check her kidney function. Father also was cross

- examined about his monitoring of Cassan dra’s carb ohydrate intake , his physical alter cation with Cassandra, and an event where he c al led the Tucson police that resulted in C assandra ’ s arrest

. During the first day of trial, Mother’s lawyer, Denise Lewis, testified on the subject of her attorneys’ fees on the case up to that point. Lewis testified that she was a 20

- year lawyer prac ti ci ng most of her careering in the area of fa mily law, and th at her hourly rate was $175 per hour . Mother testified about an invoice that she was provided for L ew is ’s work . The invoice was admitted into evidence and contained multiple entries rel ated to w or k on en forcement actions filed by the
p arties.
Th e Court ’s July 16, 202 1 “ Order in a Sui t to Modify Parent Child Relationship ” At the conclusion of trial, the court issued an order modifying the joi nt managing conservatorship so that Mother r etained ex cl usiv e rights to medical and psychiatric decisions for Cassandra . The order entitle d Father to stay informed of these decisions and require d M other to consult with Father in advance . The order

a lso entitled Father the right to counseling with Cassandra at Father ’ s election and allow ed Father to choose the counselor . Finally, the order contain ed a provision requiring Father to pay Mother $25,712.50 in attorney s ’ fees.
Post

- Judgment
Father timely requested and the trial court issued finding s of fact and

conc lusions of law

. Father also timely moved for new trial and modification of the judgment on the subject of attorneys’ fees . In arguing that Mother’s counsel had failed to5

segregate her fees , appellant pointed out that many of her entries were re lated to

e nforcement motions brought by the parties. At the hearing on Father’s motion to modify, the court announced that it would modify the judgment with respect to
at torneys’ fees, and postponed a determination with respect to at least one enforcement m at ter. The Court did not sign an order until after expiration of its plenary power.
I I. M ODIFICATION
In Father’s first is sue, he argues that the evidence before the trial court was legally and factually insufficient to support the finding that Mother sho uld ha ve the exclusi ve right to make all psychiatric decisions . The issue is whether the court abused its discretion in ma king the object ed

- to modification. Brandon v . Rudisel , 586 S.W.3d 94, 102 (Tex. App.

— Houston [14th Dist.] 2019, no pet.)
We review a trial court's decision to modify an order regarding conservatorship or the terms of possession of and access to each child under an abuse

- of

- discretion standard. See B altzer v. Medina , 240 S.W.3d 469, 474

– 75 (Tex. App.

— Houston [14th Dist.] 2007, no pet.). A tria l court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or prin ciples. See Flowers v. Flowers , 407 S.W.3d 4 52, 457 (Tex. App.

— Houston [14th Dist.] 2013, no pet.). Under an abuse

- of

- discretion stan dard, legal and factual insufficiency are not independent grounds of error, but rather function as relevant factors in asse ssing whether the trial court abused its dis cretion. Id. If some evidence of a substantive and probative character ex ists to support the tr ial court ’ s decision, we will find no abuse of discretion. Id. ; Brandon v. Rudisel , 586 S.W.3d 94, 102 (Tex. App.

— Hou ston [14th Dist.] 2019, no pet.)

. Under his first issue, Father argues that even though Mother ’s lawsuit sought modifications with r espect to the exclusive parental rights regarding medical6

treatments , the lawsuit failed to apprise Father and the Cou rt that Mother was seeking a modification gr a nting Mother exclusive rights with respect decisions pertaining to Cassandra’s psychiatr i c care. I n support of this argument, Father relies on a distinction in the Family Code found under section 153.132, which separately characterizes two exclusive pare n tal rights: the “right to consent to medical, dental, and surgical treatment involving invasive pro cedures ” and “right
to consent to psychiatric and psychological treatment.” Tex. Fam. Code § 153.132 (2) & ( 3)

. However, a s Mother points out on app eal, section 153.132 is a provision in the F amily Code that defines the default exclusive rights to parent s appointed as sole managing conservat ors . Section 153.132 does not apply to joint managing conservatorships. However, o ne provision in the Family Code applicable to the joint managing conser vatorship i n volved in this case , section 153.071, requires tha t the “c ourt shall specify the rights and duties of a parent that are to be exercised: (1) by each parent independently; (2) by the joint agreement of the parents; and (3) exclusively by one par ent.” Tex. Fam. Code § 153.071 (emphasis added)

. Thus, with respect to joint managing conservatorships, the trial

c ourt is duty

- bound to specif y the rights and duties of each parent. Id

. Notably , common parlance place s the phrase “ p sychiat ric treat me nt ” within the meaning of or as a type of “medical treatment ” , and yet “ p sychiatric treat ment ” is also closely related but distinguishable to “ psychological treatment

. ” Mother’s lawsuit explicitly ra ises issues of modification rights and duties with respe ct to medical care and psychological counseling

. Even if the p leading did not specifical ly call for a modification of psychiatric care, by calling for modification rights and duties with respect to m edical and psychological treatment, the plead ings implic itly prompted the court to discharge its duty to make c lear , o r “specify ” the rights and duties with respect to psychiatric care. See id

. W e7

conclude that Mother requested that she be awarded those rights in her petition, and the trial court's final or der awardin g those rights exclusively to Mother conformed to the p leadings and was not an abuse of d iscretion

. See In Interest of P.A. C , 498 S.W.3d 210, 216 (Tex. App.

— Houston [14th Di st.] 2016, pet. denied)
Af ter reviewing the record on the sufficiency o f evidence for modification for psychiatric care, the balance of t he testi mony showed that , with respect to any pare nt

- child issues that might be a source of needing psychiatric care, Father seemed to be the mo st trouble in Daughter’s life. Though ev idenc e revealed Daughter had som e trouble in both homes, the record app eared th at Father and Daughter were in greater reg ular conflict. Father admitted to recommending that Daughter be arrested. Father also had a physical altercation with Daughter. Daug hter testified that Father was d isruptive to her life. Though evidence demonstr at ed Father kept a sincere pare ntal concer n for Cassandra’s health, there

was some evidence of a substantive and probative character tha t Father was likely to intervene inappropriate ly in Daughter’s care. Upo n this record, the trial court did not abuse it s discretion in finding the modification g ranting Mother t he exclusive rights with respect to Daughter ’s psychiatric care was suppo rted by evidenc e and in Cassandra’s best inter est. See In Interest of P.A. C , 498 S.W.3d 210, 220 (Tex. App.

— Houston [14th Di st.] 2016, pet. denied) (finding trial cou rt ’s modification order appropriate when supported by “ some evidence of a substantive and probative character ”).
We therefore overrule Father ’ s first issue.

I I I. A TT ORNEYS ’ F EES In Father’s second issue, h e argues that the trial court erred in awarding
at torneys’ fees. First he contends that the trial court erred in failing to require
segreg ation of the fees; and second, asserts suffici en cy
- of

- evidence challenges to8

c ertain discrete components of the fees upon whi ch the court based its award. We reach Fat her ’s first point only

. A s a preliminary matter, we consider Mother’s contention tha t Father failed to preserve his segregation

- of

- fees complaint for appeal.
Pr eservation The parties do not dispute that Fath er first objected to Mother’s failure to

s egregate in his post

- trial motion for new trial. W e consider the issue whether Father’s post

- trial motion was timely enough to preserv e his segregation issue for
appe al

– a less than settled issue in ou r court ’s own jurisprudence

. See Home Comfortable Supp lies, Inc. v. Cooper , 544 S.W.3d 899, 908

– 09 (Tex. App.

— Houston [14th Dist.] 2018, no pet .) ( noting the internal court conflict of auth ority on this question). In 2009, this court issued its opinion in Clea rvie w Props., L.P. v. Prop. Tex. SC One Corp

. , announcing that , in a bench trial , the failure to segr egate attorneys ’ fees can be pre served by first ra ising the issue in a post

- judgment motion. Clearview Props., L.P. v. Pr op. Tex. SC One Corp ., 287 S.W.3d 132, 145 (Tex. App.

— Houston [14th Dist.] 2009 , pet. denied) relying on Amerada Hess Corp. v. Wood Gro up Prod. Tech. , 30 S.W.3d 5, 13 (Tex. App.

— Houston [14th Dist.] 2000, pet. denied) (implying post

- judgment motion could pr eserve error for bench trial when find ing waiver of the objection for failure t o object at trial or file a post

judgment motion)

. Notwithstanding Clearview , a mere six month later, this Court decided Red Rock Properties 200 5 , Ltd. v. Chase Home Fin., L.L.C. , No. 14

- 08

- 00352

- CV, 2009 WL 1 79 5037, at *7 (Tex. App.

— Houston [14th Dist.] June 25, 2009 , no pet.) which was arguably inconsistent with Clearvi ew
. I n Red Rock , a case that make s no reference to Clearview , we broadly stated that b ecause the appellant ( Red Rock )9

“ faile d to object to Ch as e's failure to segregate attorney's fees at the time in which the evidence of attorney's fees was presen ted and considered by the trial court, its

o bjection is u ntimely and, thus, any error is waived

. ” Id

. at *7

. We might observe a dis tinction : in one o p inion , Re d Rock , we were concluding that a post

- judgment motion ch allenging segregation of fees is untim ely when following a summary judgment order , and the other , Clearview , we

were stating that a p ost

-

judgment motion challenging segreg ation of fees is ti mely when following a bench trial

. Wh e ther there ’ s a dif ference is debatable

. For today ’s case at least , by f ollowing the doctrine of horizonta l stare decisis, we accept the principal a nnounced in Clearview and to the extent Red Roc k ’s broad language p os es a conflict, we recognize Clearview as co ntrolling with respect to first

- time post

-

judgment f

ee
- segregation challenges following bench trials

. Ac cordingly, we find the issue preserved

. D id the trial court abuse its discretion in fail ing to segregate at torneys ’ fees?
The need to segregate attorney s ’ fees is a question of law, while the extent to which certain claims can or cannot be segregated is a mixed question of law and fact. CA Par tners v. Spears , 274 S.W.3d 51, 81 (Tex. App.

— Hous ton [ 14th Dist.] 2 008, pet. denied) (citing Chapa, 212 S.W.3d at 31 2

- 13). We first consider whether the trial co urt was required to segregate attorneys’ fees. The un disputed record concerning the attorney s ’ fees includes the following : The Court origina lly o rdered Fath er to pay Mother $25,712.50 in attorney s ’ fees. This was based on testimony of Mother’s own la wyer about her fees, Mother’s testimony, and includes re ference to a detailed invoice for $17 ,587.50

. The detailed invoice includes multiple re feren ces to work p erformed for enforcement matters.10

Attorneys’ fees are recoverable for work performed in the course of a modification action under Tex. Fam. Code. § 106.002.
The record at trial and i n p ost

- judgmen t hearing s affirmatively shows that a porti on of the wor k up on which attorneys ’ fees were based included hours devoted to enforcement motions unrelated to the modification proceeding

. The judgment upon which a ttorneys ’ fees were provided d id not resolve any matters pertaining to enforcem ent m otions, and at a post

- judgment hearing, the court openly postponed resolution of pending enforcement matte rs
. In its finding s of fact, the trial court only reference s evidence related to work
pe rformed in connection with the modification action, and doe s not recite fact s

se gregating that work from work on enforcement matters. In its conclusions of law, the cou rt concludes $ 25,712.50 to be fair and reasonable. Thus, the q uestion is whether the c ourt was required to segregate fees for work performed in co nnect ion with th e en forcement motions from the work performed in connection with the modification. O ften in segregation cases a question arises whether the other claims tr ied in tandem with claim s upon which attorneys ’ fees validly are based are also clai ms up on which at torn eys’ fees may be validly based. S ee Kinsel v. Lindsey , 526 S.W.3d 411, 427 (Tex. 2017)

. Father argues on appeal that attorneys ’ fees are unavailable for work done pursuant to an enforcement action. Mother argues that attorneys ’ fees are available for bot h modification and enforcement. However, we need not reach the question of whether fees are ever r ecoverable in connection with enforcement motions because the enfo rcement action remained ongoing and was not re solved at the time of the judgment resolv ing the modificat ion lawsuit and award of attorneys ’ fees. Because fees on the enforcement motions were not recoverable at the time of the court’s fee award, t he t rial court was req uired to segregate those fees from the fees11

aw arded on the modification a ctio n. See Lederer v. Lederer , 561 S.W.3d 683, 703 (Tex. App.

— Houston [14th Dist.] 2018, no pe t.)

. The record in this ca se shows the t rial court failed to segregate the fees recoverable fo r the modification lawsuit from fees that might later be recoverabl e in connection with the e nforcement motions

. Accordingly , the trial court abus ed its discretio n. Because the fees in question were dis cretionary , we are r estrained from remanding for further proceeding s ; we reverse and render a judgment of no fee award

. Se e Interest of K.A.M.S. , 583 S.W.3d 335, 350 (T ex. App.

— Houston [14th Dist.] 2019, no pet.) Accordingly, we sustain appellant’s second i ssue.

I V
. A CCOMMODATIONS In his third issue, Father complains that the trial court erred in denying certain accommo dati ons that he requested in his emergency motion prior to trial

. With referenc e to his “ hip fracture with complications, Type 1 Diabetes with complications, autoimmune disease, and other medical problems ” which he contended affect ed his “ concentrating, t hink ing, sitting, standing, walking, dressing, ben ding, transitioning movement, performing tasks, and working ” Father sought the following relief: that the proceedings not continue until his medical condition improves, reasonable scheduling of the procee ding s, that once his medical condition improves, hearing not last more than thr ee hours and if the hearing would go over three hours that the hearing be continued another day after three hours, proceedings be staggered by one mont h (as recommended by his phy sician), and a remedy to prevent him from being r equired to meet a court schedu le,12

deadlines, and requirements that he cannot medically to lerate

. Father attached two exhibits to his motion for accommodation : two letters s ig ned by his primary care physi cian, dated November 6, 2020, and February 24, 2021

. The November letter stat es that “ [Fat her] has a [ history ] of hip fracture and ha s ongo ing chronic pain especially made worse with sitting for extended periods of time

. ” Without further explanation, th e letter requests “limiting the number of proceeding s to once daily for no more than 3 hours at a time and to reasonably allow him to stagger the time between proceedings to a 3

- week intervals. ” The second later sta te s:
I am concer ned about [Father ’ s] hea lth as he is under a great deal of stress with his current medical issues and his labs and symptoms need further evaluation. His stress is causing his health to deteriorate compounded by having to deal with the ongoing demands of court pro ceedings out of s tate f or custody matters

. My reason for writing this is t o request that [ Father] be allowed to reduce the requir ements for his in

- person court appearances to no more than once a month due to his current health issues and the need for him to focus on his m edical problems at this time. I would ask the Court to consider this matter t o be permanent and to accommodate hi m in this manner throughout the se proceedings. The trial court promptly held a hearing on Father’s emergency motio n. At th e conclusion of the h earing, the trial court denied Father’s request to cont inue the case and granted some of Father ’s requested accommodations and denied others. Specifically, t he court provided that during the proceedings (which were held on Zoom), Father would be permit t ed to sit or stand as he pleased and allowed a 15

- minute break every hour , that any 3

- hour incr ement of trial be followed by an hour break, and more specifically t he t rial would start at 9:00 a
. m
. , break for lunch at noon and then resume from 1:00 p
. m
. to 3: 00 p
. m
. On appeal, Father generally contends that the trial court should have allowed13

him a conti nuance indefinitely to convalesce and should have staggered hearings months apart. Analysis We review the trial court’s ruling on such requests under a n abu se of dis cretion standard. Schroeder v. Brandon, 172 S.W.2d 488, 491 (1943) ( Texas courts have held that “the discretion vested in the trial court over the conduct of a trial is great.” ). The trial court is empowered to control its pr o ceedi ngs for

e ffici ency purposes. See, e.g., Dow Chem. C o. v. Francis , 46 S.W.3d 237, 241 (Tex. 2001) (“The record indicates that the judge exercised her broad discretion to ‘maintain c ontrol and promote expedition.’”) ; see Metzger v. Sebek, 892 S.W.2d 2 0 , 38 (Tex. App.

— Hou ston [1st Dist.] 1994, writ denied). However, Father presented very little evidence to support the accommodations he requested

. Tho ugh he engaged with the court about hi s request in the hearing, he was not sworn as a witness to offe r suppo rting testimo n y and he provided no affidavit. Though he had attached two note s from t he same d octo r , n either note supported his request for a continuance, and the notes only suggested a ccommodations that would be advisable ; neither note stated any

accommo dation was a medic al necessity

. The trial court noted in its findings and conclusion that Father agreed t hat he had not requested such accommodations at work and that Father admitted that he regularly worked eight

- hour days. Addit ionally , Father d id not direct the c o urt t o any evidence that he was excluded from pa rticipation in his trial due to his disability

. Upon this re cord, and particularly in light of the accommodations the trial court did provide to address Father ’s condition , we cannot concl ude the court abused its discretion in failing to provide the additi onal requested accommodations

. We cannot con clude the trial court abused its discretion in denying the14

continuance. Caddell v. Caddell , 597 S.W.3d 10, 14 (Tex. App.

— Houston [14th Dist.] 2020, no pet.) ( “ Ge neral ly, when a movant fails to file a written motion for continuance supported by affidavit, we presume the trial court did not abuse its discretion. ” ) citing Villegas v. Carte r , 711 S.W.2d 624, 626 (Tex. 1986) ; see Tex. R. Civ. P. 251

. Acc ordingly, we overr ule Father ’s third issue.
V
. C ONCLUSION We affirm the judgment of as it pertains to the modification of Mother ’ s rights and duties , and affirm the trial court ’ s docket

- man agement decisions. However, because the court failed to s egregat e attorneys ’ fees on unadjudicated enforcement issues, the trial court ’ s attorn eys ’ fees award is reversed

.

/s/ Randy Wilson Justice
Panel c onsis ts of Justic e Bou rliot , Justice Hassan an d Justice Wil so n.