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Click here for the full text of this decision FACTS:On Feb. 6, 2003, Bern Mortberg and Joylyn Niebes were divorced and named joint managing conservators of their two children. Niebes, however, was given a number of exclusive rights and duties, including rights t establish the primary residence of the children; consent to medical, psychiatric and psychological treatment for the children; receive child support; make decisions of substantial legal significance concerning the children; represent the children in legal actions; consent to the children marrying or enlisting in the armed forces; make decisions concerning the children’s education; and receive the services and earnings of the children. Niebes also undertook duties to act as the agent of the children in relation to their estates and manage the children’s estates. Moreover, Mortberg was awarded less time of possession of the children than the time provided for in the standard possession order in the Texas Family Code. On July 8, 2003, Mortberg filed a petition to modify the parent-child relationship, seeking additional possession of the children. Mortberg subsequently amended the petition, requesting that: 1. he be awarded, as a joint and managing conservator, some of the rights and duties that the divorce decree awarded exclusively to Niebes; 2. the primary residence of the children be restricted to Dallas County; 3. each party be required to designate both parents as the first persons to be notified in case of an emergency involving the children; 4. each party be required to notify the other parent of any illness or medical injury to the children; 5. each party be required to notify the other parent of the scheduling of any organized activities for the children; 6. Niebes be required to provide information to Mortberg regarding the children’s health insurance; 7. he be granted expanded standard possession of the children under Texas Family Code ��153.311 -.317; 8. each parent have a first right of refusal to baby-sit the children if the other parent could not care for the children for four hours or longer; 9. each parent have the right to reasonable telephone access to the children during the other party’s periods of possession; 10. each parent be required to pick up the children at the other parent’s residence or at school following a period of possession; and 11. Niebes be enjoined from making disparaging comments about Mortberg or his family to the children. Mortberg also requested a social study be performed. Niebes filed a countermotion to modify, seeking an increase in child support, and a motion to enforce, requesting the trial court order Mortberg to pay one-half of the children’s uninsured medical expenses and one-half of the federal income taxes owed for 1999 and 2000. Both parties sought attorneys’ fees. At the Feb. 22, 2005, hearing, Mortberg objected to the trial court’s hearing Niebes’ motion to enforce, because it was filed less than 20 days prior to trial. The trial court granted the objection and heard only the two petitions to modify. The parties agreed on a number of issues but proceeded to trial on awarding Mortberg additional rights and duties as a joint managing conservator, requiring Niebes to provide Mortberg with information regarding the children’s health insurance, granting Mortberg expanded standard possession of the children, granting each parent the right of first refusal to baby-sit the children, and requiring each parent to pick up the children at the other parent’s residence following a period of possession. Although the trial court granted Mortberg additional possession of the children, the trial court did not grant Mortberg the expanded standard possession he sought. He received essentially the possession Niebes had agreed to at the beginning of the hearing. The trial court denied Mortberg’s request for additional rights and duties and also Mortberg’s request that Niebes be required to pick up the children at Mortberg’s residence following Mortberg’s periods of possession. Although the trial court granted a first right of refusal to baby-sit the youngest child if a parent could not be with that child for eight hours or longer, it denied Mortberg’s request as to the older child and Mortberg’s request that the time period be four hours or more. The trial court ordered Niebes to provide Mortberg with information regarding the children’s health insurance, found Mortberg had been paying more than the actual premium for the insurance, and awarded Mortberg a credit for the overpayment. The trial court also ordered Mortberg to undergo a psychological evaluation and to provide the results of the evaluation to the children’s therapists. The trial court did not rule on the parties’ requests for attorneys’ fees. After hearing Niebes’ motion to enforce on April 13, 2005, the trial court awarded Niebes $3,500 in fees on the motion to enforce and $20,000 in fees on the petition to modify. Mortberg appealed only the fees awarded on the petition to modify. HOLDING:Affirmed as modified. In his first issue, Mortberg argued that the trial court erred in awarding attorneys’ fees as child support on a petition to modify. The Texas Legislature, the court stated, has distinguished between the award of attorneys’ fees and costs in child support enforcement actions and in modification suits because of the potentially serious consequences that stem from an award of attorneys’ fees as child support. Because the fees were not awarded on a motion to enforce delinquent child support obligations, the court stated that there was “no basis in the facts or the law to characterize the award of attorney’s fees as” in the nature of child support.’ “ Accordingly, the court sustained Mortberg’s first issue and modified the order regarding attorneys’ fees in the amount of $20,000 to assess them only as a judgment debt and not as child support. In his second issue, Mortberg contended that the trial court erred in awarding attorneys’ fees to Niebes as the nonprevailing party without a showing of good cause. It is within a trial court’s sound discretion to award reasonable attorneys’ fees in a suit affecting the parent-child relationship, the court stated. In family law cases, “it is not always so easy to determine who the successful party is.” In the context of attorneys’ fees, the court stated, the prevailing party is the one vindicated by the judgment. After comparing the relief requested by Mortberg with the relief actually granted by the trial court, the court stated that the trial court did not abuse its discretion in awarding attorneys’ fees to Niebes. In his third issue, Mortberg contended that the trial court erred in finding Niebes’ attorneys’ fees were reasonable and necessary. There was no testimony about Niebes’ attorney’s hourly rate or the number of hours he spent on the case, the court stated. The court, however, found no rigid requirement that there must be evidence on both these facts to make a determination of attorneys’ fees. Rather, the trial court found that Niebes’ attorney testified as to the total fees incurred and that the fees were reasonable and necessary. The trial court then awarded $20,000 in fees, less than the $30,528.06 in fees requested by Niebes on the petitions to modify. Based on the record, the court stated that the trial court did not abuse its discretion in its award of attorneys’ fees to Niebes. OPINION: Bridges, J.; Moseley, Bridges and Richter, JJ.

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