### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

ON MOTION F OR REHEARING

NO. 03-12-00046- CV

Lori L. Legere , Appellan t

v. David Legere , Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 261 ST JUDICI AL DISTRICT NO. D-1 -F M- 03- 0073 63, H ONO RAB LE RHO NDA HURLEY , JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

We withdraw our previous opinion and judgme nt date d Au gu s t 29, 2012, and substitut e the following opinion and judgme nt in their place

. We overr ule appellant L ori L

. L eg ere ’s motion for rehe aring and appe llee Da vid L eg ere ’s motion to reconsider order and for sanctions. Appellant L ori L

. L eg ere appea ls from a district court judgme nt deny ing her claims for child support and discovery sanctions ag ainst her ex-husband, appe llee David L eg ere , and

awa rding David attorne y ’s fe es ag ainst her. We will affirm the district cour t’s judgme nt. 1

Be cause the parties share the same surname, we will re fe r t o them by their first names 1 for c larity

.F ACTUAL AND P ROCEDURAL BACK GR OUND L ori and David divorce d in 2003. They had one child of the marria g e who has been

a minor at all rele vant times. I n their orig inal divor ce d ecr ee, L ori was appointed sole manag ing

conser vator with the exclusive rig ht to d es i gn ate the child’s residenc e, and David was appointed possessory conser

vator and order ed to pay child support. I n J uly 2007, afte r L ori filed suit to modify David’s monthly child-support obliga tions, she and David enter ed into an ag ree d order that, among other things, set David’s child-support obliga tion at $900 per month throug h J uly 2008. For months there afte r, David’s obliga tion was to be set at an amount equal to 20 perc ent of his net monthly i n co m e, as deter

mined by L ori’s counsel. To fac ilitate the calc ulation of that amount, the ag ree d order further require d David to “send a copy of a curr ent pay stub showing his y ear -to-date income” to L ori’s attorney by J uly 1, 2008. I f David failed to submit the require d “cur rent pay stub,” the order provided that the a

mount of David’s oblig ation was to def ault to $1,030 per month. 2

The re levant sec tion of the 2007 ag ree d order rea ds as follows: 2 I T I S ORDERED that David L ege re is obliga ted to pay and shall pay to L ori L

. L eg ere child support of $900.00 per month, with the first pay ment being due and pay able on Aug ust 1, 2007 and a like pay ment being due and pay able on the first day of ea ch month there afte r until J uly 31, 2008. I T I S ORDERED that David L eg ere shall send a copy of a curren t p ay stub showing his y ear -to-date income to [L ori’s at t o rn ey ] on or about J uly 1, 2008. [L ori’s attorney ] shall, using the A tt o r n e y G e n e r a l c hild support char ts, calc ulate 20% of David L eg ere ’s net income to deter mine the n ew ch i l d support amount to beg in on Aug ust 1, 2008. I f David L eg ere fa i ls to send such pay stub to [L ori’s attorney ] in J uly 2008, David L eg ere is ORDERED to pay and s h al l p ay t o L ori L

. L eg ere child support of $1030.00 per month, with the first pay ment being due and pay able on Aug ust 1, 2008 and a like pay ment being due an d p ay able on the first day of eac h month there af

t er . . . . I f David L eg ere sends the pay stub as order ed, [L ori’s attorney ] shall calc ulate the appropr iate child support amount as set forth above and shall send such calc ulation to David L eg ere . I n such case , David L eg ere is 2David later filed his own suit to modify h i s ch i ld-support obliga tion, seeking

to reduc e his monthly

pay ment on the basis that he had rec ently lost his job. During the pende ncy

o f that modification suit, the district court issued two temporar y order s. The first, signe d i n Marc h 2009, retroa ctively reduc ed sever al of David’s pay ments that had been presc ribed under the 2007 ag ree d order

. For

April and May

2008, David’s monthly

pay ments were reduc ed fr om $900
to $259.73. L ikewise, for the monthly pay ments beg inning in Aug ust 2008, which wer e to have been set at either 20 perc ent of David’s net monthly income or $1,030, the temporar y order chang ed the amounts to $680 p er m o n t h fo r Aug ust 2008 throug h J anuar y 2009, and to $259.73 per month beg inning Febr

uary 2009. I n a separate order signe d the s ame day regard i n g a mot ion to enfor ce, the district c ourt also found that David was in a rre ars on his c hild support pay ments in the amount of $719.46 and order ed hi m t o p ay L ori this amount. The second temporar y order , signe d in October 2009, chang ed David’s monthly support pay ments to $ 6 0 0 per month beg inning, retroa ctively , Aug ust 1, 2009. This order also require d David to pay $620 in back pay ments to L ori by October 30, 2009. The follo wi n g t able summarizes the combined eff ect of the 2007 ag ree d order and the two temporar

y order s on David’s m o nthly child-support obliga tions. We have emphasized the final or controlling amounts that would be pre scribed e ach month if both tempora ry order s are g iven ef fec t:

ORDERED to pay and shall pay to L ori L

. L eg ere child support [si c] the new amount of child support, . . . .

3MONTH 2007 Agre ed Order Marc h 2009 Tem porary Order October 2009 Tem porary Order April 2008 $900 changed to $259.73 (not addre ssed) May 2008 $900 changed to $259.73 (not addre ssed) J une 2008 $900 (not addre ssed) (not addre ssed) J uly 2008 $900 (not addre ssed) (not addre ssed) Aug ust 2008- J anuar y 2009 20% of Da

vid’s monthly net income as dete rmined in J uly 2008, or $1,030 changed to $680 (not addre ssed)

Fe bruar y 2009-Jul y 2009 20% of Da vid’s monthly net income as dete rmined in J uly 2008, or $1,030 changed to $259.73 (not addre ssed)

Aug ust 2009- onwar d 20% of Da vid’s monthly net income as dete rmined in J uly 2008, or $1,030 chang ed to $259.73 changed again to $600

I n September 2010, L ori serve d David with discovery reque sts in his modification suit. After he failed to respond, L o ri fi l ed a motion to compel and reque sted sanctions and attorney ’s fee s. L ori set her motion for hear ing on Dec ember 10, 2010. A few day s befor e the hear ing, D avid nonsuited his modification suit.

A few months later, L ori filed a “Motion to Conf i rm C h ild Support Arre ara g e” in which she soug ht rec overy from Da vid of a claimed child-support arr ear ag e of $9,861.62 for the period between Febr

uary 1, 2009, and Decembe r 3 1 , 2 0 1 0

. T h e premise of L ori’s claim was that David’s nonsuit of his modification claim had obviated the two tempora ry o rd ers and left the 2007 ag ree d order once ag ain as the g overning order in d et er m i n ing his monthly child support.

4Consequently , L ori rea soned, David now owed her the amounts presc ribed in the a g ree d order for

eac h month between F ebrua ry 2009 and De cembe r 2010, not the consider ably lower a mounts that the cour t had set in its two temporary order s. Following a hear ing on this motion, the district court found that David had no childsupport arr ear ag e and or dere d that—

• “Da

vid L eg ere ’s child support obliga tion should continue pursuant to the J uly 20, 2007 Orde r of the Court[] at the rate of $900 pe r month”;

• “L ori L eg ere ’s reque st for sanctions and attorney ’s fee s is DENI ED and any and all cla ims by

L ori L eg ere are DI SMI SSED”; and

• L ori pay

David’s a ttorney ’s fe es in the amount of $2,500.

I t is from this judgment that L ori now appe als. ANALYSIS L ori bring s four issues on appea l. I n her first issue, L ori asser ts that the district court

err ed in finding that David owed no child-support arr ear ag e, a calc ulation that, she urg es, rests upon the court’s improperly g iving eff ect to temporar

y order s that wer e “voided” by David’s nonsuit. I n her second issue, L ori complains that the district court err ed in setting David’s future monthly childsupport obliga tion under the 2007 ag ree d order at $900, as opposed to the defa ult amount of $1,030, beca u s e t h er e was leg ally and fac tually insufficient evidenc e that David had ever provided the financ ial information that was a prer equisite for application of the lower amount. I n her third issue, L ori contends the district court err oneously denied and dismiss ed her reque st for discovery sanctions and attorney ’s fees on the b as i s t h at David had nonsuited his modification claims. Finally , in her

5fourth issue, L ori contends that the evidenc e was leg ally an d fa ctually insufficient to support the

district court’s a

war d of $2,500 in attorney ’s fe es to David.

Stand ard of review

A trial court has discretion t o set child support within the para meters provided by the Texas Fa

mily Code. Iliff v. Iliff

, 339 S.W .3d 74, 78 (Tex. 2011) (citing Rodriguez v. Rodriguez , 860 S.W .2d 414, 415 (Tex. 1993)). A court’s order setting or modify ing c hild support will not be disturbed on appea l unless the comp l ai n i n g party can show a clea r abuse of discretion. W

orford

v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990); see also Rodriguez , 860 S.W .2d at 415. A trial court abuses its discretion wh en it acts arbitra rily or unrea sonably , without ref ere nce to g uiding rules or principles. Iliff

, 339 S.W .3d at 78 (citing W orford , 801 S.W .2d at 109; Downer v. Aquam arine Operators, Inc ., 701 S.W .2d 238, 241–42 (Tex. 1985)). A tr ial court a lso abuses its discretion by failing to analy

ze or apply the law corr ectly

. Id. (citing W alker v. Pack

er , 827 S.W .2d 833, 840 (Tex. 1992)). Under an abuse- of-discr etion standard, leg al and fac tual sufficie ncy of the evidenc e

are rele vant fac t o rs i n assessing whether the trial court abused its discretion, but they are not independe nt gr ounds of error. Iliff v. Ilif f , 339 S.W .3d 126, 134 (Tex. App.—Austin 2009), aff’d , 339 S.W .3d at 74. Ac co rd i n g ly , in deter mining whether the trial court abused its discretion in this cas e, we ap ply a two-prong ed analy sis. See id. ; Boyd v. Boyd , 131 S.W .3d 605, 611 (Tex. App.—For

t Worth 2004, no pet.). First, we mu s t co n s i d er whether the trial court had sufficie nt information on which t o ex er ci se i ts discretion. Boyd , 131 S.W .3d at 611. Second, we must deter

m i n e wh et h er , based on the evidenc e, the trial court’s decision was rea sonable. Id

. I n

6deter

mining whether there is leg all y sufficie nt evidenc e to support a finding under revie w, we examine the rec ord for evidenc e and infere nces that support the cha l l en ged finding , considering evidenc e favor able to the finding if a rea sonable fac tfinder could and disreg arding evidenc e contra ry to the findi ng unless a reasonable fac tfinder could not. City of Keller v. W ilson , 168 S.W .3d 802, 827–28 (Tex. 2005). Evidence is leg ally insufficient only when (1) the rec ord discloses a complete absenc e of evidenc e of a vital fac t; (2) the court is barr ed by rules of law or of evidenc e from g iving weig ht to the only evidenc e offe red to prove a vital fac t; (3) the evidenc e offe red to prove a vital fac t is no more than a mere sci n t i l l a; or (4) the evidenc e establishes conclusively the opposite of a vital fac t. Uniroyal Goodrich Tire Co. v. Martinez , 977 S.W .2d 328, 334 (Tex. 1998). We will not substitut e our judgme nt for that of the fac tfinder if the evidenc e falls within the zone of rea sonable disag ree ment. City of Keller , 168 S.W .3d at 822. Evidence is fac tually insufficient only if the evidenc e adver se to the finding at issue preponde rate s so overw helmingly ag ainst the challeng ed finding that the finding is clea rly wrong and manifestly unjust. See Cain v. Bain , 709 S.W .2d 175, 176 (Tex. 1986). As the fac tfinder in this case , the trial court is the “sole judge of the cre dibilit y of the wit nesses and the weight to be given the ir testimony .” McG alliard v. K uhlmann , 722 S.W .2d 694, 696 (Tex. 1986). There is no abuse of discretion if s o m e probative and substantive evidenc e supports the trial court’s order

. See, e.g . , Z ei f ma n v. Miche ls , 212 S.W .3d 582, 587 (Tex. App.—Austin 2006, pet. denied).

Tem porary order s

I n her first issue, L ori challeng es the district court’s deter mination that there was no child-support arr ear ag e. She arg ues that the district court’s calc ulation of no arr ear ag e was incorre ct

7beca

use it improperly applied the support pay ments du e under the Marc h and October 2009 temporar y o rd ers despite the fac t that those temporar y order s wer e “voided,” she arg ues, when David nonsuited his modification suit. Stated another way , L ori arg ues that the only possible w ay the district court c ould find that David did not owe ba ck child support was for the district court to also deter mine, incorre ctly she asser ts, that the child-suppor t amounts set under those temporar y order s applied to the arr ear ag e calc ulation rathe r than the highe r amounts presc ribed by the parties’ 2007 ag ree d o rd er. That is incorre ct, she arg ues, beca use the eff

ect of David’s nonsuit was to p l ac e the parties in the same position they wer e in befor e he filed his suit—i.e., befor e any of t h e temporar y order s that modified his child-support obliga tions. W e disag ree . I n Texas, a party has an absolute and unqualified rig ht to take a nonsuit of a pending claim at any time until they have introduced all evidenc e other than rebuttal evidenc e. See Tex. R. Civ. P. 162; Epps v. Fowl er , 351 S.W .3d 862, 868 (Tex. 2011); In re Benne tt , 960 S.W .3d 35, 38 (Tex. 1997). A nonsuit terminates the case “fr om ‘the moment the motion is filed.’” Travelers Ins. Co. v. Joachim , 315 S.W .3d 860, 862 (Tex. 2010) (citing Universi t y o f Tex. Med. Branch at Galveston v. Estate of

Blackm on , 195 S.W .3d 98, 100 (Tex. 2006)). The nonsuit does not aff ect any pending claim for aff

irmative relief or motion for attorney ’s fee s or sanctions. See T ex . R

. Civ. P. 162; Epps , 351 S.W .3d at 868. Ba rring an aff

irmative claim ag ainst the party , t h e ef fect of a

n o n s u i t is to exti ng uish the case or controve rsy reg arding the claimant’s claims without an adjudication of their merits— i

. e. , rende r their merits moot. See Estate of Blackm on , 195 S.W .3d 98 at 100. Nonsuits have a lso been de scribed a s putting the pa rties bac k in the position t hey wer e in befor e the suit was filed. See, e.g. , Crofts v. Courts of Civil Appeals for the Eight h S u preme Judicial Dist. , 362 S.W .2d 101, 104 (T ex . 1 9 6 2 ) (not ing that nonsuit “plac es the parties in the 8position that they wer e in befor e the court’s j u risdiction was invoked just as if the suit had never

been broug ht”); Hagberg v. City of Pasadena , 224 S.W .3d 477, 484 ( T e x. App.—Houston [1st Dist.] 2007, no pet.) (“When a party nonsuits a leg al action, the parties are put back in the same positions as bef ore the filing of

the suit.” (citing Crofts , 362 S.W .2d at 104)). Thus, David’s Dec ember 2010 nonsuit terminated or exti ng uished his modification claims that soug ht to lower his monthly child-suppor t p ay ment. As a result, at this point in time, David and L ori returne d to their pre- suit positi o n o n child support—i.e., subject to the terms of the 2007 ag ree d order that require d David to pay , depending on the month and whether he provided the require d income information to L ori’s counsel, $900 per month, 20% of his m o n t h l y i n come, or $1,030. See Croft

s , 362 S.W .2d at 1 0 4 ; Ha g berg , 224 S.W .3d at 484. And having terminated David’s modification suit, the nonsuit likewise terminated th e d i s t ri ct court’s temporar y order s

re l ated to David’s modification reque st. See Hyundai Motor Co. v. Alvarado , 892 S.W

. 2 d 8 5 3 , 854–55 (Tex. 1995) (noting that nonsuit “vitiates” ear lier interlocutory order s that are not decisions

on the merits); Rosser v. Rosser , 620 S.W .2d 802, 804 (Tex. Civ. App.—Houston [14t h Dist.] 1981, writ dism’d) (noting that nonsui t o f divorce proce eding eliminates the need for continued enfor ceme nt of temporar

y child-custody

and child-suppor

t orders)

. But this does not mean that David’s monthly child-support obliga tions retroa ctively

reve rted back to the terms of the 2007 ag ree d order as if the temporar y order s never had any eff ect

on the parties. As long as the district court had jurisdiction to issue the temporar y order s at the time—and it is bey ond dispute that it did, see Tex. Fam. Code Ann. § 156.006 (West Supp. 2012) (g iving court power to rende r temporar y order s in modification suit)—the nonsuit of the underly ing modification suit did not rende r those temporar y order s void. See Pettus v. Pettus , 237 S.W .3d 405, 9416 (Tex. App.—For t Worth 2007, pet. denied) (noting that “the rendition of a divorce decr ee does not itself nullify any temporar y order ” and that the obliga tion fix ed by a temporar y order continues afte r divorce decr ee unless specific ally modified by the d ecree ); Ex parte Shaver , 597 S.W .2d 498, 500 (Tex. App.—Dallas 1980, no writ) (h o l d i n g t h at final divorce decr ee did not nullify the temporar y order with respec t to past-due pay ments; rather , it supersede d the tempora ry order with respe ct to f

uture support). Thus, had David failed to pa y the amounts presc ribed by the temporar y order s, L ori could have sued to enfor ce his pay ments under those temporar y order s even if, as here , the case was nonsuited or i f t h e court had issued its final judgme nt on the matter. See Shaver , 597 S.W .2d at 500; see also 154 A.L .R. 530 (noting that majority of jurisdictions, including Texas, allow enfor ceme nt of temporar y order s afte r entry of final judg ment or af ter nonsuit or dismiss al). Conse q u en t l y , it was not an abuse of discretion for the district court to acc ount for the prior temporar y order s in determining whether there was a

child-support ar

rea rag e. We overrule L ori’s first issue on appe al.

F uture child-sup port obligation

I n her second issue, L ori challeng es the leg al and fac tual sufficie ncy of the evidenc e supporting the district court’s deter minati o n that David’s future child-support amounts wer e $90 0 per month under the parties’ 2007 ag ree d order

. Specifica lly , she arg ues that there is insufficient evidenc e that David provided the appropr iate financ ial documents require d b y t he 2007 ag ree d order . Thus, L ori asser ts, David instead owe s the $1,030 per month def ault amount. I nitially , we note that L ori asser ted i n her arre ara g e mot ion that $900 per month i n child support was the c orre ct “a mount and fre quency

of oblig ation” as of May 18, 2011, when her

10motion was filed. To that extent, the district court’s finding here comports with her own pleading s.

But more important, the evidenc e in the rec ord supports the district court’s deter mination that David p ro v i d ed the appropr iate financ ial documents as require d by the parties’ 2007 ag ree d order , t h u s avoiding the automatic $1,030 pe r month pay ment provided for

in the ag ree d order

. The parties’ 2007 ag ree d order require d David to pay $900 per month from the date of the order until J uly 31, 2008. I t also require d David “to send a copy of [ h is] curr ent pay stub showing his y ear -to-date income to [L ori’s attorney ] on or about J uly 1, 2008.” I f David did not send this financ ial information, his monthly child-support pay ments would automatically incre as e to $1,030 per month under the ag ree d order

. Otherw ise, the ag ree d order require d L ori’s attorney , upon

rec eipt of the require d information, to rec alculate the monthly child-support pay ments to be 20% of David’s ne t monthly

income. The rec ord in this case includes a copy of a J une 27, 2008 letter from David to L ori’s attorney in which David states that the document attac h ed to the letter is a copy of his curr ent pay statement, with y ear -to-date ear nings information, as require d by the parties’ 2007 ag ree d order

. The attache d document is a n “ea rning s statement” from Har der Consulti ng , I nc., showing David’s pay rate , period ear

nings, and his “y ear -to-date ” ear nings. L ori contends that this evide n ce is insufficient beca

use it does not include evidenc e of his other pay , sever ance pay , or unemploy ment benef its that he rec eived during the period. But the 2007 ag ree d order does not spe ak to or require this other i n formation. I t simply require s David to “send a copy of a curr ent pay stub showing his y ear -to -d at e i n co m e t o [L ori’s attorney ] on or about J uly 1, 2008.” On its fac e then, David’s J une 27, 2008 letter and attachme nt contain the require d information; there fore , the automatic i ncre ase to $1,030 for failure to provide information is not implicated. More important, the l etter 11and attache d information are sufficie nt information on which the court could exercise its discretion.

See Boyd , 131 S.W .3d at 611. Fur ther, in the absence of any contra dictory

evidenc e or dispute as to their authenticity , the district court’s decision that the defa ult incre ase was not trig g ere d here was

rea sonable ba sed on this evidence

.

Although not spe cifica lly challeng ed on appe al, we w ould also note that the re cord supports the district court’s deter mination that David pay $900 per month. First, there is no evidenc e in the rec ord that L ori’s attorney rec alculate d David’s monthly child-support pay ments as require d by the parties’ 2007 ag ree d order

. The terms of the parties’ 2007 ag ree ment sug g est that under such circ umstances, David’s monthly pay ment will stay at $900 per month. But ev en i f that is not the case and the contra ct require s rec alculation of the child support to 20% of David’s net income reg ardle ss of the circ umstances, there is evidenc e in the rec ord that as of J une 1, 2009, David’s gro s s -m onthly income was $4,500—and twenty perc ent of $4,500 is $900. Either way , th e district court had sufficie nt information on which to base its deter mination and, in the absenc e of a challeng e by David reg arding his g ross versus net m onthly income, that decision was rea sonable. See id

. We overrule L ori’s sec ond issue on appea l.

Sanctions I n her third issue on appea l, L ori challeng es the district court’s denial of her motion for discovery sanctions for David’s failure to answe r discovery in his nonsuited modification case . First, L ori complains that she was denied an evidentiar y hear ing on this matter and that the sanctions issue was instead pere mptorily decide d by the court at the arr ear ag e hear ing. Second, L ori deduce s

12that beca

use her motion for sanctions was denied at the arr ear ag e hear ing, as opposed to a separ ate evidentiar y hear ing, the district court must have b as ed i t s ruling solely on the fac t that David had nonsuited the modification case . That was err or, L ori contends, beca use rule 162 provides that nonsuits “have no eff

ect on any motions for sanctions

. . . pending at the time of the [nonsui t] .” See Tex. R. C iv. P. 162. W e disag ree with L ori’s asse rtions.

L ori’s brief in support of her arr ear ag e m o t i o n p re s ents as an issue for the district court “What amount of sanctions, if any , should David L eg ere be order ed t o pay L ori L eg ere ? ” I t also discusses the merits of he r motion for sanc tions at leng th:

I n this case , in addition to a judgme nt for all of the back support that is now owed to [L ori], and based on [David] ’s frustra tion of the court proce ss and his non-suit, [L ori] is seeking sanctions ag ainst [David] in the amount of attorney ’s fees and costs that she has incurre d in conne ct i on with the modification suit that was ultimately dismiss ed by him, and in connec tion with [David] ’s refusal t o co m p l y wi th proper reque sts for income information that was reque sted so that the case could be finalized appropr iately

.
And finally , L ori’s brief pray s for the court to awa rd sanctions in the amount of $9,687.76. I n sum, L ori injected the sanctions issue into he r arr ear ag e motion and asked the district court to rule on it in connec tion with her arr ear ag e motion. Acc ording ly , it was not err or for the district court to make that ruling , as L ori had reque sted. And L ori had the opportunity at the hear ing o n h er ar re arag e motion to arg ue and prese nt evidenc e supporting her sanctions issues. Thus, she was not denied an opportunity

to have a hear ing on he r motion for sanc tions. As for L ori’s second asser tion, there is nothing in the district court’s order , or in any finding s of fac t or conclusions of law, indicating that the court relied on the nonsuit as the basis for

13deny ing her motion for sanctions. To the contra ry , the order states that it relied on the “plea dings, arg ument of counsel, the evidenc e[,] and post-hear ing briefs” in d eny ing L ori’s motion for sanctions.

We overrule L ori’s third issue on appe al.

Attor ney’s fees

I n her fourth and fi n al i s s ue, L ori challeng es the leg al and fac tual sufficie ncy of the evidenc e supporting the district court’s awa rd of $2,500 to David for his attorney ’s fee s. She contends that there is no evidenc e in the rec ord on which the distric t co u rt co u l d have based its decision. We disag ree .

Under the family code, the awa rd of costs and attorney ’s fee s is within the discretion of the trial court. See Tex. Fam. Code Ann. § 106.001 (West 2008) (providing that a “cour t may awa rd costs in a suit or motion under” Title 5 of the family code) ; Lenz v. Lenz , 79 S.W .3d 10, 21 (Tex. 2002) (“A n attorney ’s fee s awa rd in a suit aff

ecting th e p ar en t -child rela tionship is discretionar

y with the trial court.” ). A trial court abuses its d i s cr etion if it rules arbitra rily ,
unrea sonably , or without reg ard to g uiding principles. Bocque t v. Herring , 9 7 2 S .W.2d 19, 21 (Tex. 1998). There are sever al fac tors a trial court should consi d er i n d eter mining the amount of

rea sonable attorney ’s fee s to awa rd. See T ex . Di s ciplinary Rules Prof’l Conduct R. 1.04(b), repri n t ed i n T ex . Gov’t C ode Ann., tit. 2, subtit. G, app. A (W est Supp. 2008) (Tex

. State Ba r R

. art. X, § 9); Arthur Andersen & Co. v. Perry Equip. Corp ., 945 S.W .2d 812, 818 (Tex. 1997); Hays & Martin, L.L.P. v. Ubinas–Brache , 192 S.W .3d 631, 636 (Tex. App.—Dallas 2006, pe t. de nied). These fac tors include: the time, labor and skil l required to proper ly perf orm the leg al service ; the novelty and d ifficulty of the questions involved; the customary fee s char g ed in the local leg al

14community for simil ar leg al service s; the amount involved and the results obtained; the nature and

leng th of the profe ssional rela tionship with the client; and the experience , reputa tion a nd ability of the l awy er perfor

ming the service s. Arthur Andersen , 9 4 5 S

. W

. 2 d at 818. But a trial court is not require d to rec eive evidenc e on eac h of these fac tors. See Burnside Air Conditi oning & Heating, Inc.

v. T.S. Y oung Corp ., 113 S.W .3d 889, 897–98 (Tex. App.—Dallas 2003, no pet.). The court can also look at the entire rec ord, the evidenc e prese nted on rea sonablene ss, the amount in controve rsy , the

common knowledg e of the participa nts as lawy ers and judge s, and the rela tive succe ss of the parties. Id

. at 897. Testimony from a party ’s attorney about a party ’s attorney ’s fee s is taken as true as a matter of law if the testimony “is not contra dicted by any other witness and is clea r, positive, direc t, and free from contradiction.” See Blockbuster, Inc. v. C–Span Entm’t, Inc ., 276 S.W .3d 482, 490 (Tex

. App.—Dallas 2008, pet. g rante d, judgm’ t vacated w.r.m.) (citing Ragsdale v. Pro g r es s i ve Voters League , 801 S.W .2d 880, 882 (Tex. 1990)). This is espec ially true wher e the opposing party had the mea

ns and opportunity

to disprove the testimony but failed to do so. Id. David’s attorney attache d an aff idavit to his response to L ori’s motion for arr ear ag es. I n that aff

idavit, David’s attorney testified t h at he had been licensed in Texas since May 2001, that he char g ed David $250 per hour fo r h i s s er v i ce s, which he testified is a rea sonable rate for a family law attorney in Travi s County , Texas. David’s attorney also testified t hat s ince David had filed t he mo d i fi ca t i o n suit, he had worke d more than 40 hours t ry ing to resolve the case . Finally , he reque sted the court awa rd him $5,000 in attorney ’s fe es in connec tion with L ori’s motion for arrea ra g es. L ori did not prese nt any controve rting evidenc e about David’s attorney ’s fee s

or otherwise challenge Da v i d ’s reque st for attorney ’s fee s or supporting evidenc e. Apply ing the

15appropr iate standards of revie w, we conclude that the evidenc e is leg ally and fac tually sufficie nt to

support the trial cour

t’s awa rd of $2,500 in attorne y ’s fe es to David. We overrule L ori’s four

th issue.

CONCLUSION Having overr

uled ea ch of L ori’s issues, we a ffirm the district c ourt’s judg ment.

__________________________________________ Bob Pembe rton, J ustice Be fore J ustices Pury ear , Pemberton and G oodwin Affir med on Motion for Rehea ring Filed: F ebrua

ry 22, 2013

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