## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00029

- CV

IN THE INTEREST OF H.T.S. AND T.A.S., CHILDREN

On Appeal from the County Court at Law No. 2

Smith County, Texas Trial Court No. 17

- 1215

- F

Bef or e Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION

T he trial court entered an order modifying the parent

- child relationship after finding Father in contempt of an agreed decree of divorce from Mother

. 1 On appeal, Father argues that
the trial court erred by ( 1) entering a possession and ac cess order , ( 2 ) ordering Father to follow
recommendations of a counselor , and ( 3 ) awarding $40,000.00 in attorney fees to Mother

. 2
We find that the trial cour t ’ s pos s ession and access order is valid and that the trial court did not abuse its discretion by requiring Father to follow a counselor’s recommendations . Even

so, we sustain Father’s third point of error complaining of the lack of suffici ent evidenc e to

s uppor t the attorney fee award. As a result, we reverse the attorney fee award and remand for a new trial on attorney fees only. In all other respects, we affirm the trial court’s order modifying the parent

- child relat ionship.
I. Factua l and Proce dura l Backg r ound
Mother and Father were divorced in September 2019. The agreed final divorce decree appointed both parents as joint managing conservators of their children, Harold and Thad, 3 with Mother having t he exclusive right to designate the children’s r e siden c e within Smith County. Among other things, the agreed decree required that Father attend Alcoholics Anonymous (AA) ,

1 Originally appealed to the Twelfth Court of Appeals, this case was transferre d to this Court b y the Texas S upreme Court pursuant to its docket equ al iz ation e f fo r ts. See T EX

. G OV ’ T C ODE A NN . § 73.00 1 ( Supp.) . We follow the precedent of the Twel fth Court of Appeals in deciding this case

. See T EX

. R. A PP

. P. 41.3.

2 Father also raised a f

ourth point of error arguin g that the trial court failed to enter find in gs o f fac t and conclusio ns of law as required by Section s 153.072 and 153.258(a) of the Texas Family Code , specif ying i ts reasons for deviating from the standa rd possession orde r and limiting Father’s rights as a conservator

. As a result of o ur order ab at in g this appeal, the tri al court ente red the required findi ngs and conclus ion s . Consequently, we overrule Father’s four th point of error.

3 We use pseudony m s to protect the identit ies of the children. See T EX

. R. A PP

. P

. 9.8.3

that he “maintain his Soberlink subscription . . . for so long as he ha [d] posse ss ion of the children,” and tha t his p osse s si on of a n d acce s s to the childre n be supervised. On January 6, 2021, the trial court found that Father was in contempt of the agreed final
divorce decree. As a result, the trial court modified the parent

- child relationship . The tria l court’s order re tained bo t h M othe r an d Father as joint managing conservators, with Mo ther having the exclusive right to determine the children’s primary residence within Smith County

. T he times of Father’s possession and access were in line wi th a st anda rd possessi on orde r but
sp e c if ied that Father’s vi sitation was to “ be supervised at all times with ‘Conditions of
Possession and Access’ as set out in [that] Order .” Under the “ C onditions of Possession and
Access ” portion, the trial c ourt in clud ed the followin g langu age:

IT IS O R D ERED t hat the [Father] s hall have supervised possession of the children according to a Standard Possession Order as set out in the Texas Family Cod e. Any time that [Father] has possession of the children , he s hall have an adult assi stant/b abysitter pres e n t, an d that adult assist ant/babysitter shall at all times remain withi n line of sight and hearing of [Father] and the children subject of this sui t. The adult assistant/babysitter shall be mutually agr eed be tween the parties, and th e adult assistant/bab y s itter shall be required to pass a criminal background check (which sh all be provided to [Mother] ) prior to scheduling visitation. A ne w bac kground check shall not be required on any adult assis tant/b ab ysi tter who has already had a b ackgrou nd check run, b u t sai d adult assistant/b abysitter must be agreed upon by [Mother]

. Adult Assistant/Babysitter IT IS ORDERED that the parties m ust m utually agree to said adult assistant/babysitter. In the event t he parties can not [sic] agree to an adu lt assistant/b a b ysitt e r, [Father] ’s visi ts shall take place with a pers on and/or facility designated by the Court.
In it s findin gs of fact and conclusions of law, the trial cou rt explaine d t hat its ruling was the result of having found Father i n conte mpt of the agreed f i n al di vorce decree.4

II . The Trial Court ’s Possession and Access Order is Valid
The trial court ’s or der required that Father’s possession of and access to Haro ld and Thad be supervised. 4 In its order, the trial court stated t hat Mother and Father cou l d eit he r agree to a suitabl e supervisor or have the trial court appoint one. Claiming that the trial court’s order required Mother’s agreement on an appropriate su p ervisor, 5 Father argues that the order was
unenforceable because it effect ively denied his r igh t o f a ccess to Harold and Thad. Father also argues that the trial court’s failur e to n ame a supervisor in its order rendered the order unenforceable by cont em p t and , t hereby , void. We disagree.
A. Father Was Not Effectiv ely Denied P ossession of an d Acce ss t o His Children
Fi rst, w e note that Father’s three main cited cases are eas ily di stinguishable. See In re J.Y

. , 528 S.W.3d 679, 689 (Tex

. A pp.

— Texa rkana 2017, no pet.); In re K.N. C

. , 276 S.W.3d 624, 628 (Tex. App.

— Dall as 2008, no pet.) ; Roosth v

. Roos th , 889 S.W.2d 445, 45 0 (Tex. App.

— Houston [14th Dist.] 1994, writ d enied). In In re J.Y

. , we reversed the order specifying t h at Mother’s vi sitation would “be pursuant to the children’s counselor’s recommendation” because, contrary to the requiremen t s of Se ct ion 153.006(c) of the Texas Family Code , the trial court’s

o rder was “not sufficiently specific as to th e ti mes and con ditions for [Mother’s] possession of or

access to ” her children. In re J.Y

. , 528 S.W.3d at 689, 6 91

. For the s ame reason , the H ouston
F ourteenth Court of Appeals reversed a pos session order granting Fat her possession of his

4 Father doe s not argue t ha t the tri al court a buse d its discretion by requiri ng supervised visitation o r that supervised visitation was not in the ch ildren’s best interests.

5 Because t he trial court’s order provided that it would choose a supervisor if the parties c ould not agr ee o n one, we find mer itl ess Father’s argu ment that “ [t] he Trial Court erred in o rdering that [Father’s] possession and acc ess be condition [ed] on the parties’ mutua l agreement of the supervisor. ”5

children “only a t times mu tually agre ed to in advance by the managing Conservator .” Roosth , 889 S.W.2d at 450 ; but s ee In re J.J

. R. S. , 627 S.W.3d 211, 217 ( T e x. 202 1) (finding that a trial

court could condit ion pos session and access “[o]nly if the mana g ing conse rvator agre ed to visitation” based on unique circumstances that could have led the trial court to conclud e tha t the

severe restriction was in the chil d r en’s b est interest (alteration in original) )

. He re, the trial court set forth Fa ther’s times o f possession and access t o Harold and Thad in detail , and further specified that it was in accord with the standard pos session orde r descri bed by Section 153.3 1 2
of th e Texas Family Code

. See T EX
. F AM

. C ODE A N N
. § 1 53.312 (Supp.).
In In re K.N.C. , the Dallas C o urt of A ppeals reversed the trial co urt ’s possession order because it required that Fat her’s visit ation be s upervised by “ a compete nt adult, or entity, a g r eed

u p on between the parties.” In re K.N.C

. , 276 S.W.3d at 628

. The Dallas c ourt found that such language “e f

fectively gave Mother vet o po wer over [Father’s] visitation.” Id. ; see In re Walters , 3 9 S. W.3d 280, 285 (Tex. App.

— Texarkana 2001, no pet.) ( “ [ Mother ] contends the trial court ’ s order effectively denies her po ssession of and access to [her son] by order i ng that she have possessi on ‘ at all times mutually agreed between the parties

. ’ ” ). But h ere , the trial court’s orde r did not require Mother’s a g reemen t on the supervisor because the trial court would appo int on e in the event of no agreement.
Because t h e trial court’s order set forth specific dates and times of Father’ s possession of
and acc ess to his children and wa s not solely conditioned on t h e mutu a l agreement of the parties, we reject Father’s argum ent th at he was effectively denied possession and ac cess.6

B. The Trial Cou rt’s O rder Was Not Void for Vagueness
We also find th at the tria l c ourt’s order was not voi d simply because it failed t o name a supervisor. It is true that “ for a person to be hel d in c ontempt for disobeying a court decree, the
d ec ree must spell out the detail s of compliance in clear, specific and unambiguo us terms so th at such person will read ily know exactly what duties o r obli gations are imposed upon him. ” In re
J.J.R.S

. , 627 S .W.3d at 223 (quoting Ex parte Slavin , 412 S.W.2d 43 , 44 (Tex. 1967) (ori g. proceeding) ). Even so, “ while an order must be ‘clear, specific, a nd un ambiguous’ to be

en forceable by contempt , it do e s not f ollow that every order less than that is inva lid.” I d. ( qu oting Slavin , 412 S.W.2d at 44). “[W ] hile the [Texas] Family Code p r ovides that conservators may b e subject to contempt for disobeying a court o rder, the Code d oes not require

— nor [has the T exas S upreme Court] ever held

— that trial courts must issue orders t hat

a re always e n forceable by contempt.” Id

. at 223

– 24 (c itation omitted)

. Here, w e find t hat the trial court ’ s possession and access order is en forceable. See id

. at
224 ( “ [W] hether a conse rv ator may enforce an order by contempt depends on the contents of the
orde r and the f

a cts and circumstances of the particular ca se.” ). The order is clear, specific, and unambiguous as t o the times of Father’s posses sion and ac c ess and requires th a t his v is itation be supervised. We find that nothing m ore is required becaus e t he failure to agree to a supervisor
will not result in d enial of Fa ther’s possession of or access to his children since the trial court will simply appoint on e . Instead, as i n In re J.J.R.S. , t he order is valid since Father has a remedy (asking the trial court to ap point a sup e rvisor ) and because the Texas Family Code specif ically7

allows the trial court t o clari fy the order by supplying the name of a super visor

. See id. ; see a l so T EX
. F AM

. C ODE A NN
. § 157.421. We overrule Father’s first point o f error ch allen ging the possession and acc ess order.
III. The Trial Court Did Not Abuse Its Discreti o n by Order i ng Father to Follo w the Recom mendations of a Psychologist
The terms o f the a gre ed divorce decree, including that Father attend AA an d mai ntain a Soberlink subscript ion, show that Father’s use of alcohol wa s an issue during the divorce

. During the modifi cation proc eedings, t he t rial court ordered Dr. Donald Winsted to con d u ct a
p s ychological evaluation of Father. After hea r ing Winste d’s t estimony, the trial court r equired
Father to “receive a referral for follo w - up counseling serv ices and substance abuse treatment as

recomme nded by

. . . Winsted ” and ordered hi m to “follo w any an d all recommendations and
referrals made b y . . . Winst ed.” In his second point o f error , Fathe r argues that the trial cour t erred by requiring him to fo llow Winsted’s reco mmendations in its modific ation order

. A. Standard of Review

“ A court with c ontinu i ng, exclusive jurisdiction m a y modify an order that pr ovide s fo r the conservators hip, support, or possession of and access to a child. ” T EX
. F AM

. C ODE A NN
. § 156.001. The court may modify such an order if doing so “would be in the bes t interest o f the

c h ild [ren] ” and on a showing of a material and substantial chang e in circumstances. T EX
. F AM

. C ODE A NN
. § 156.101. “ T he trial court is given wide latit ude in determining the best in terest s of

. . . minor child [ren]. ” Gillespie v. Gil lespie , 644 S

. W .2d 44 9 , 451 (Tex . 1982) . As a res u lt, “[a]
trial court ’ s modif

icati on of conservatorship is reviewed for abuse of discretio n. ” In re K.L.R

. ,8

162 S.W.3d 29 1, 307 (Tex. App.

— Tyler 2005, no pe t.). “ It is an abuse of discretion for a trial

c ourt to rule w i thout s upporting evidence. ” 6 Id

. “[T]he trial court fac es the part ies and the witnesses, o bserves their demeanor and
perso nality, an d feels the forces, po wers, and the influences that canno t be disce rned by merely reading the record. ” In re K.L.D

. , N o
. 12

- 10

- 00386

- CV, 2012 WL 2127464, a t *2 (Tex. App.

— Tyler J une 13 , 201 2 , no pet. ) ( mem. op.)

. “ The tri al judge is, therefore, in a bett e r position to analyze the facts, weigh the virtues of th e parties, and determine what will be in the best interest
of a child. ” Id

. Consequently, “ a tria l court ’ s findings of fact ar e bin ding on an appellate cou rt unless they are so contrary to the grea t preponderance of the evidence as to show a clear abuse of
discret i on. ” In re K.L.R

. , 162 S.W.3d at 307

. “ In the abs e n ce of s uch a clear abuse of discret i on, an appellate court shoul d not substitute its judgment for tha t of the trial court. ” Id

. B. The Ev idence at Trial
Wins ted noted that Father’s medical his tory inclu d ed “HLD [ ( hyperlipidemia ) ] and
December 2016 TBI [ ( t r au mati c brain injury ) ] skull fracture and bilateral frontal SDH [ ( subdural
hem atoma ) ] due to an alcohol

- related fall.” Father admit ted t hat he had su stained an “alcohol

induced traumatic brai n injury.” He t estified that, since the en try of the a greed d i v orce d e cree, he had received therapy for alcoholism and had attended AA as ordered by the decree but stopped afte r “Co vid sta rted.” Fat her also a d mitted that he te sted positive for alcohol in March
2021

.

6 “Under an abu se of discre tion standar d , the legal and fa ct ua l suffi cienc y o f the evidence are no t independent grounds of error, b ut are relevant facts in assessing whether the trial court abused its discretion.” In re Tr eadwell , No. 12

- 14

- 00301

- CV, 2015 W L 3451425, at *1 (Tex. Ap p.

— Tyler May 29, 2015, no pet.) ( me m. op.)

.9

Winsted testifi ed that Father’s answers during h is psy c hological evaluation were defensive and that, as a result, Winsted’s reading o f Father w as limi ted. Winst ed al so noted that
Fath e r was “ faking good” and “attempted to give so cially desi rable respon ses . . . to hide negative personal characteristi c s .” Wi n sted wrote that “[o]ther issues of concern regarding his ability to effect ive l y care for his children incl ud e [d ] a hist ory of sub stance abuse ” and noted that
Father was not i nterested in participating in counseling

. According to Winsted, Father

a c k nowled g ed previously using alcohol every day and said he had “been to a couple of t r eatment
centers ” bu t claime d t ha t his last drink w as in 2017. When asked about Father ’s Soberli nk results and admissions to drinking aft er 2017, Winsted said that that “ w o uld su g gest there may be a higher probability of there being s om e substance use issues.” Wi n sted recommended
indivi dual counseling, substance abuse t reatment , and af tercare for Father and believed he should subject himself to random drug screens.
C. Anal y s is
T he trial court found that or de ring Fathe r to comply with Winst e d’s recom mendations

wa s in the children’s best interests. Cri tica lly, Father does not contest that finding. Even so, we
will address F a ther ’s argu ments that the trial court erred bec a u se Win s ted was a biase d third party a nd because “it is u nclear how Appellant’s compliance or noncompliance affects h is
possess ion [of] and ac cess to the children.”
Fa ther contends that Winsted was biased becau se he was retained by Mother and because
h i s knowl e dge of the case was sup pl ied by Mot h er’s cou nsel. Yet, Winsted con ducted a separate
clini cal interview of Father and a dmini stered sever al instruments to support his conclusions,10

including a mental status form, intelligence test, parenting invento r y , care g iving experi ence

assessme nt, Mill on clinical multiaxial inventory, and the S ubstance A buse S ub tle S creening
I nvent ory. Winsted testified th at he was neutral, did not “have a dog in the fight , ” and wanted to
h elp Father. After hearing W insted’s t e s t imony , the trial cour t f ound him t o be “ credible and compelling .” Because it was within his purview to assess W insted’s cre dibility and the record
contain s Winsted’s testimony that he was neutral, we cannot say th at the trial cour t abused its
discretio n in fin d ing th at Winsted was neutral and only wished to help Father. Next, Father argues that it is unclear how complia nce or noncompliance impacts Father
because his possession or access was not conditioned on foll owing Winsted’s r ecommendation s. The r e cord s h ows oth erwise.

“ The term s of an order that

. . . imposes restriction s or limitation s on a p arent’s right to
posse ss ion of or ac cess to [ h i s childre n ] may not exceed those that are required to protect the be st interest of the child[ren]. ” T EX
. F A M
. C OD E A NN
. § 153.193. He re, the trial court found that it
was in t he children’s best interest for Father’s possess ion and a ccess to be supervised. The tr ial

court s pecifically informed the parties that it wished for Father to one day have un supervise d
vitiat i on with his child ren
. The trial court wrote , I believe it wo uld be in the children ’ s best in teres t, as well as [Fath e r’s] , to fol low th e recommendations made in [Winsted’s] report. Should [Father ] genuinely follow therapeuti c recommendations AN D allow f or a pe r iod of time to pass so that these recommendations can take root I could see the court

. . . allowing for unsupervise d a ccess at t hat point.11

Because the record shows that compliance wi th Winsted’s recommend ations was required for
Father t o have u nsu pervised vi s i tation, we reject Father’s complaint and o verrule his second point of error.
IV. We Reverse the A ttorney Fe e Award In his third point of error, Father challenges the amount of attorney fees awarded. “ A n attorney ’ s fees award in a suit a f fecting the pa r e nt

- child relationship is discretionary wit h the trial court.” Lenz v. Lenz , 79 S. W.3 d 10, 21 (Tex. 2002) (ci t i ng T EX
. F AM

. C ODE A NN
. § 106.002) ; see In re J.K.R

. , 658 S.W.3d 354, 364 (Tex. App.

— Corpu s Christi

– Edinburg 2022 , no pet

. ) (“ A t r ial court ’ s aw a r d of attorney ’ s fees in a [suit affecting the parent

- child relationship]
is reviewe d for an abuse of discret ion.”). As a resu lt, “[w] e revi ew a trial c ourt ’ s decision to either grant or deny attorn ey ’ s fees under an abuse of discr e t ion st a nd ard. ” Slack v. Shreve , No.
12

- 22

- 00024

- CV, 2023 WL 2 4 1 7971, at *8 (Tex. App.

— Tyler Mar. 8 , 2023 , no pet. ) (mem. op.) (cit ing Ridge Oil Co. v. Guinn Inv s ., I n c . , 14 8 S.W.3 d 143, 163 (Tex. 2004 ) ). “ In contrast, w e review a trial court ’ s determin a t ion re g arding the amount of attorney ’ s fees for

. . . su f f iciency of
the evidence. ” Id. (citing Bo c quet v. Herring , 972 S.W.2d 1 9, 21 (Tex. 1998) )

. A review of Fath e r’s br ief sho ws that he is not complaining about the a ward of attorney
fees to Mother b ut inste a d argu es that the evidence is legally insuffic ie n t to support the amount of attorney fee s a w arded. We agree. “When fee

- sh ifting is authoriz ed, whether by st a tute o r contr act , the party seeking a fee award must p rove the reasonableness and nece ss it y of t h e requ ested attorney’s fees.” Rohrmoos
Ventur e v . UTSW DVA Healthcare, LLP , 578 S.W.3d 469 , 484 (Tex. 2019). The Texas S u preme12

C ourt has ex plained that it i n tends “the lo destar analysis to apply to any situation in which an objective calculati on o f reas o nable hours worked times a reasonable rate can b e employed.” Id.

at 498

.

“ [T] he fac t [

- ] f

inder ’ s starting po int for calcu lating an attorney ’ s fee award is d etermin ing
th e reasonable hours worked multiplied by a reasonable hourly rate, and the fe e claima n t bea rs the burden of providing sufficien t ev idence on both counts.” Id

. “[ T]here is a pr esumption that
the base lodestar calculation, when support e d by sufficie nt evidence, reflects the reasonable and
necessary attorney ’ s fees that can be shi ft ed to th e non
- prevailing party.” Id. at 4 9 9

. “ Sufficient evidence includes, at a min imum, evidence of (1) particular services perf ormed, (2) who
per formed t h ose services, ( 3) approximately when the services were performe d, (4) the
reasonable amount of ti me req ui r ed to perform the services, and ( 5 ) t he reasonable hourly rate for each perso n performing s uch services.” Id. at 498. “Th is base lodestar f igure sh o uld approxima te the reasonable value of legal services provided in prosecuting or defending the
p re vail in g party’s claim through the litiga t i on process.” Id.

“ Expert testimony is re quired to supp ort an award of attorney ’ s fees

. ” Adkison v. Adki son , No. 1 2

- 06

- 00077

- CV , 2007 WL 259550, at *7 (Tex. App.

— Tyler Jan. 31, 2007 , no pet. ) (mem . op.)

. Mot he r was re p resented by Alicia Barkley at tri a l

. Father’s at torney stipulated

to Barkley ’s “expertise as to reasonable an d necessary f ees charged throug hout East Texas , ” bu t

no t to any a mount of attorney fees. After the tri al court noted that it was famil ia r with B a rkley ’s qualifications , 7 she testified to the following:

7 While the tri al court ackn owledged Barkley’s qualifications, the recor d did not show them.13 This Cou rt has already taken judic ial notice of all of the prior p roceedings, the pr ior order s , the prior h e arings that have been had. As a result of that, and as a result of all of the d el ay s, as a result of all of the e vents and lack of events that have occurre d in this case, I am askin g that my client be awarded her attorney’s fees in their en t irety.
At th e time that we started this trial t his morning, m y client had accrued $47,625 in at to rney’s fees, and that’s over t he two

- plus year s that she has

-- that I have worked on her behalf. We are asking that she be award ed the amount of $ 47,625. T hat does not i nclude the amount for the trial it self.
I do bi ll at a rate of $350 for trial h ou rs
. I b i ll at a rate of 250 f o r office ho [ u ] rs
. S o I am asking for the trial fee as well. I just don ’ t know how much that is yet. But I do believe that these fees were re a sonable and necessary. My legal assistant is N ancy Parker . . . . She has been su pe rvised by myself. I a m t he only attorney that has worked on thi s case in representation of m y cli ent [Mother]. I will also say t hat Ms. Parker ha s engaged in nece s sary ac tiviti es such as filing of motions, conta cting c lient, contacting attorneys, sch ed ul ing, d r aftin g of l etters and motions for my review. All of this was necessary in this case to pro tect these children. All of thi s has been necess ary to further th i s litig ation to a completion trial.
We are bef

ore th e Court asking that [Mother] be aw ar ded al l of h e r at t orney ’ s fees, when I left the office thi s morning, of $47,625

. No billing recor ds were produced. The trial cou rt awarded Mother $4 0 ,000.00.
In Rohrm oos , the Texas Supreme Court wrote that generali ties about an attorney’s experie nc e , th e t o tal amount of fees, and the reason abl eness of the f ee “ are not sufficient to support a fee

- shifting award under the lodesta r method. ” Rohrmoos Ventur e , 578 S.W.3d at 49 6.
We find that Barkley’s tes timony was too general to constitute legally s uf f i cie n t e vidence of attorney fees.14

Even th ough Barkley stated , “ A ll of th is has been neces sary,” she did not testify about how many hours she worked in the case or whether t h e hou r s worked were reasonable. She also did not provide any information segre ga ti ng the work performed by h er versus the work performed by Parker or identify at what rat e she was charging for Parker’s services.
Because the evidence fell short of what is required by Rohrmoos , we reverse the a ttorney fe e award and remand the case t o th e tria l co u rt for a redeterminatio n of attorney fees.
V. Conclusion
We rev erse the attorney fee award and remand for a new t rial on attorney fees only. In all other respects, we af

f irm the trial court’s orde r modifyi ng the parent

- child relationsh ip

.

Sc o tt E

. Stevens Chief Justic e Date Submitt ed: September 27 , 2023 Date D ecided: N ovember 8 , 2023