Opinion issued June 12, 2014

In The

Court of Appeals 

For The 

First District of Texas 

————————————

NO. 01-13-00848-CV

———————————

NANCY C. KENDRICK, Appellant

V.

PAUL SEIBERT, Appellee

On Appeal from the 311th District Court

Harris County, Texas

Trial Court Case No. 2009-30034

O P I N I O N

Appellant, Nancy C. Kendrick, appeals the trial court’s judgment in a suit to 

modify the parent-child relationship and agreement incident to divorce. In three 

issues, Kendrick argues the evidence is legally insufficient to establish that the 

attorney’s fees awarded were reasonable.
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We affirm.

Background

Paul Seibert and Nancy Kendrick’s divorce was finalized on December 22, 

2009. Seibert and Kendrick agreed to the divorce decree, and both approved the 

decree as to both form and substance. The agreement provides, “To the extent 

permitted by law, the parties stipulate the agreement is enforceable as a contract.”

The agreement gave Kendrick the right to maintain possession of their 

children’s passports. The passports provision required Kendrick to deliver the 

passports to Seibert within ten days of proper notification of intent to travel outside 

the United States with the children. The passports provision also established that, 

if Kendrick or Seibert violated those provisions, he or she would be liable for costs 

incurred due to noncompliance, including attorney’s fees.

In January 2013, Seibert provided Kendrick with notice of his intent to take 

their children to Canada for three days in June 2013. Although she signed the 

notice before a notary and returned it to Seibert, Kendrick told Seibert that she 

would not deliver the children’s passports to him. Seibert sent Kendrick another 

notice of his intent to take the children out of the country by certified mail. Seibert

then filed a suit to modify the parent child relationship and agreement incident to 

divorce. Kendrick was served on June 3, 2013.
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Kendrick did not file an answer to the suit, but she did deliver the children’s 

passports to Seibert two days before the travel date. The trial court held a trial on 

September 6, 2013. Kendrick did not appear. Among other matters, Seibert

testified about the attorney’s fees incurred due to Kendrick’s violation of the 

passport provision in the agreed divorce decree. Seibert testified that he had paid 

his attorney $2,500 in fees and $262 in other costs in his efforts to obtain the 

passports from Kendrick.

The trial court rendered judgment on the matter. In pertinent part, the trial 

court ordered Kendrick to pay Seibert’s attorney $2,500 in attorney’s fees and

$262 in costs. Kendrick subsequently filed this notice of appeal.

Standard of Review

“The final test for legal sufficiency must always be whether the evidence at 

trial would enable reasonable and fair-minded people to reach the verdict under 

review.” City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In 

performing a legal-sufficiency review, we must credit favorable evidence if 

reasonable fact finders could credit it and disregard contrary evidence unless 

reasonable fact finders could not disregard it. Id. “If the evidence . . . would 

enable reasonable and fair-minded people to differ in their conclusions, then [fact 

finders] must be allowed to do so.” Id. at 822. “A reviewing court cannot 

substitute its judgment for that of the trier-of-fact, so long as the evidence falls 
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within this zone of reasonable disagreement.” Id. Although the reviewing court 

must consider evidence in the light most favorable to the verdict, and indulge every 

reasonable inference that would support the verdict, if the evidence allows only 

one inference, neither fact finder nor the reviewing court may disregard the 

inference. Id. An appellant attacking the legal sufficiency of an adverse finding 

on an issue for which she did not have the burden of proof must demonstrate that 

there is no evidence to support the adverse finding. Croucher v. Croucher, 660 

S.W.2d 55, 58 (Tex. 1983).

Attorney’s Fees

In her three issues, Kendrick argues the evidence is legally insufficient to 

support the award of attorney’s fees because there is no evidence that the fees were

reasonable. Seibert acknowledges that there was no evidence of the 

reasonableness of the attorney’s fees presented at trial but argues that such 

evidence was not necessary to support the award.

Generally, attorney’s fees are not recoverable from an opposing party unless 

authorized by statute or contract. Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 

299, 310 (Tex. 2006). Critical to our inquiry, then, is the determination of under 

what authority Seibert sought and obtained attorney’s fees. Seibert argues that the 

agreed decree is enforceable as a contract, and, accordingly, he can recover 

attorney’s fees pursuant to section 38.001 of the Texas Civil Practice and 
5

Remedies Code. See TEX. CIV. PRAC. & REM. CODE ANN. § 38.001 (Vernon 2008). 

Kendrick argues that this section is inapplicable in this case because, “[t]his is a 

suit to enforce court orders,” not “a suit based on contract.” We hold that those 

two are not necessarily mutually exclusive.

In a divorce proceeding, the parties can enter into an agreement over the 

matters to be resolved in the divorce. See TEX. FAM. CODE ANN. § 7.006 (Vernon 

2006). Similarly, the parties can enter into agreements concerning matters 

affecting the parent-child relationship. See TEX. FAM. CODE ANN. §§ 153.007, 

154.124 (Vernon 2014). For matters concerning the divorce and determination of 

the marital estate, the agreement is enforceable as a contract. Allen v. Allen, 717 

S.W.2d 311, 313 (Tex. 1986); Schwartz v. Schwartz, 247 S.W.3d 804, 806 (Tex. 

App.—Dallas 2008); see also Rich v. Rich, No. 01-03-00078-CV, 2003 WL 

21027940, at *2 (Tex. App.—Houston [1st Dist.] May 8, 2003, no pet.) (holding 

agreed divorce decree is enforceable as contract and as judgment); Hicks v. Hicks, 

348 S.W.3d 281, 283 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (holding, 

because parties entered into agreed divorce decree, it is treated as contract between 

parties).

For matters concerning the parent-child relationship, terms of the agreement 

concerning conservatorship, access to the child, or child support are not 

enforceable as a contract. See TEX. FAM. CODE ANN. §§ 153.007(c), 154.124(c). 
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Any other terms concerning the parent-child relationship can be enforced as a 

contract. See In re W.R.B., No. 05-12-00776-CV, 2014 WL 1008222, at *4 (Tex. 

App.—Dallas Feb. 20, 2014, no pet. h.) (holding term concerning post-majority 

support is enforceable as contract).

The divorce decree was agreed to by the parties. It was signed by Kendrick 

and Seibert, both of them approving the decree as to form and substance. The 

agreement specifically provides, “To the extent permitted by law, the parties 

stipulate the agreement is enforceable as a contract.” The provision at issue—the 

passport provision—concerns the parent-child relationship, but it does not concern 

conservatorship, access to the child, or child support. Because the divorce decree 

was agreed to by the parties and the passport provision does not concern a matter 

that cannot be enforced as a contract, we hold it is enforceable as a contract. 

Section 38.001 provides, “A person may recover reasonable attorney’s fees 

from an individual . . . in addition to the amount of a valid claim and costs, if the 

claim is for . . . an oral or written contract.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 38.001(8). Kendrick argues that Seibert did not present any evidence to establish 

that the $2,500 in attorney’s fees was reasonable. Siebert acknowledges that he did 

not present any evidence of the reasonableness of the fees at trial but argues the 

evidence is still legally sufficient. We agree.
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“The court may take judicial notice of the usual and customary attorney’s 

fees and of the contents of the case file without receiving further evidence in a 

proceeding before the court.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.004(1) 

(Vernon 2008). “It is presumed that the usual and customary attorney’s fees for a 

claim of the type described in Section 38.001 are reasonable. The presumption 

may be rebutted.” TEX. CIV. PRAC. & REM. CODE ANN. § 38.003 (Vernon 2008). 

“The trial court’s own proceedings together with the fact that it may take judicial 

notice of usual and customary fees constitute some evidence to support the award 

of appellate attorney’s fees.” Gill Sav. Ass’n v. Chair King, Inc., 797 S.W.2d 31, 

32 (Tex. 1990). Appellate courts can presume that the trial court took judicial 

notice of the case file and of the usual and customary fees pursuant to section 

38.004. Vaughn v. Tex. Emp’t Comm’n, 792 S.W.2d 139, 144 (Tex. App.—

Houston [1st Dist.] 1990, no writ). When there is no evidence to rebut the 

presumption in section 38.003, “no further evidence [is] required to establish 

reasonableness of attorney’s fees.” Id. 

Kendrick argues that these statutory provisions do not apply because the trial 

court can only take judicial notice of the case file and usual and customary fees in 

“a proceeding before the court” or “a jury case in which the amount of attorney’s 

fees is submitted to the court by agreement.” TEX. CIV. PRAC. & REM. CODE ANN.

§ 38.004. It is undisputed that there was no jury trial, so the second option is not 
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applicable. See id. § 38.004(2). Kendrick argues the first option is not available 

either, relying on cases establishing that these provisions do not apply to summary 

judgment proceedings. See Coward v. Gateway Nat’l Bank of Beaumont, 525 

S.W.2d 857, 858 (Tex. 1975); Gen. Elec. Supply Co. v. Gulf Electroquip, Inc., 857 

S.W.2d 591, 601 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Seibert did 

not obtain attorney’s fees in a summary judgment proceeding. Accordingly, these 

cases are inapplicable.

Regardless of whether the proceeding below is characterized as a hearing or 

a trial, it indisputable that it was “a proceeding before the court.” There was no 

jury. Evidence was presented.1

 The trial court made factual determinations and 

ruled accordingly. We hold section 38.004 applies. See TEX. CIV. PRAC. & REM.

CODE ANN. § 38.004(1).

Kendrick and Seibert’s divorce decree was an agreed decree, making it both 

a contract and a judgment. See Schwartz, 247 S.W.3d at 806; Rich, 2003 WL 

21027940, at *2. Kendrick violated the contract’s terms concerning delivery of the 

children’s passports. Seibert filed suit seeking enforcement of the passport 

provisions. Accordingly, Seibert’s suit included a claim for a written contract. 

 1 Kendrick also relies on Garcia v. Martinez, 894 S.W.2d 806, 807 (Tex. App.—

Corpus Christi 1994, no writ) for the proposition that a trial court cannot 

determine reasonableness of attorney’s fees based on judicial knowledge without 

the benefit of an evidentiary hearing on the matter of attorney’s fees. Given that 

evidence of attorney’s fees was presented, we hold this case also has no 

application here.
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Section 38.001 allows a party to recover reasonable attorney’s fees for such a 

claim. TEX. CIV. PRAC. & REM. CODE ANN. § 38.001(8). When section 38.001 

applies, a trial court can take judicial notice of the case file and of the usual and 

customary attorney’s fees, and the usual and customary fees are presumed to be 

reasonable. See id. §§ 38.003, .004(1). Taking judicial notice of these two things 

is legally sufficient to support a determination that the attorney’s fees award was

reasonable. Gill Sav. Ass’n, 797 S.W.2d at 32.

We hold the evidence is legally sufficient to establish that the trial court’s 

award of attorney’s fees incurred in enforcing the passport provision. We overrule 

Kendrick’s three issues.

Conclusion

We affirm the judgment of the trial court.

Laura Carter Higley

Justice

Panel consists of Justices Jennings, Higley, and Sharp.