Lee v. Holoubek
| Decision Date | 06 May 2016 |
| Docket Number | No. 06-15-00041-CV,06-15-00041-CV |
| Parties | GEARY H. LEE, Appellant v. ELIZABETH DEANNE HOLOUBEK, F/K/A ELIZABETH DEANNE LEE, Appellee |
| Court | Texas Court of Appeals |
On Appeal from the County Court at Law Rusk County, Texas
Before Morriss, C.J., Moseley and Burgess, JJ.
Geary H. Lee and Elizabeth Deanne Holoubek (formerly Lee) were divorced in 1988 after fourteen years of marriage. In this suit, Holoubek sought to recover her share of Lee's retirement benefits that had not been divided in their divorce decree. After a very short hearing before the bench, the County Court at Law in Rusk County awarded Holoubek judgment for $76,935.68, representing her share of the retirement benefits Lee received upon his retirement in 2006, plus a reasonable rate of return for nine years, and imposed a lien on Lee's retirement accounts. In addition, the trial court awarded Holoubek attorney fees in the amount of $30,774.27. After the trial court entered findings of fact and conclusions of law, Lee appealed.
Lee complains that there is legally and factually insufficient evidence to support the trial court's findings that the retirement funds would have grown in the amount found by the trial court and that a lien or constructive trust should attach to his retirement accounts. He also complains that the trial court erred as a matter of law awarding contingent attorney fees and that there was legally and factually insufficient evidence to find that $30,774.27 in attorney fees was reasonable and necessary.
We find (1) that Lee failed to preserve his error related to the awarding of contingent attorney fees, (2) that there is sufficient evidence to support the trial court's finding relating to the growth in the amount of retirement funds and to support the attachment of a lien, or constructive trust, on his retirement accounts, and (3) that there is legally sufficient evidence to support the attorney fee award. However, we find that there is factually insufficient evidence to support the amount of attorney fees awarded. Therefore, we affirm the trial court's findings regarding thegrowth of Lee's retirement accounts and that a lien or constructive trust should attach to those accounts. We will reverse the trial court's award of attorney fees unless Holoubek files a remittitur with the clerk of this court in the amount of $20,774.27 within fifteen days of the date of this opinion. If Holoubek files the proposed remittitur, we will modify the trial court's judgment and affirm the judgment, as modified. If no remittitur is filed, we will remand that issue to the trial court to conduct a new hearing on attorney fees.
Lee began working at Texas Eastman in August 1973 and retired in February 2006. Holoubek and Lee were married in April 1974 and divorced in August 1988. However, their divorce decree did not divide the retirement benefits Lee was accruing at Texas Eastman. In 1992, Holoubek filed suit to divide the retirement benefits, and the parties agree that a hearing was held on Holoubek's petition in 1993. The parties also agree that the court that heard the suit in 1993 made a notation on its docket sheet that Holoubek was entitled to 35%, and Lee 65% of Lee's retirement benefits. However, no final order or judgment was entered in that suit, and the suit was dismissed for want of prosecution in 1997.
After Lee retired, he received $306,306.00 from Eastman from his retirement account, and $97,400.00 from the Eastman Investment Plan Employee Stock Ownership Plan (ESOP), which he testified was a savings account he began after the divorce. Lee rolled all of these funds ($403,706.00) over into an investment account in March 2006. Lee testified that, over the nine years since he retired from Eastman, he has taken distributions totaling $213,000.00, includingtaxes on the distributions, and that there is approximately $384,000.00 remaining in his account at Edward Jones.
Although Lee maintains that a court in 1993 determined Holoubek's portion to be 35%, he testified that he has not offered her any of the funds. He explained that he would have done so if there had been a court order entered, but that there was not. He acknowledged that she is entitled to a portion of the funds and stated that he is willing to give it to her. He also testified that he never put her name on any of his retirement accounts and that she was never named as beneficiary of the accounts. Lee and Holoubek agreed that a proper valuation of Holoubek's portion in 2016 requires some form of market adjustment calculation. Lee also agreed with the following calculations submitted by Holoubek (1) if the correct total amount of retirement funds subject to division is $306,306.00, then Holoubek's portion in February 2006 would have been $47,275.00, and (2) if the correct total amount subject to division is $403,706.00, then Holoubek's portion in 2006 would have been $62,307.00.
Holoubek testified that Lee never offered her any of the funds and that he did not include her in any decisions pertaining to the funds. She also testified that she never gave Lee permission to manage her money or to hold on to it. She testified that she had no knowledge of his financial transactions with the retirement funds, of any of his funds withdrawals, or of whom he named as beneficiary. On cross-examination, Holoubek admitted that she had never asked Lee to protect her interest in the funds and that she had never asked him to pay over her interest in the funds. Holoubek also testified that she hired her attorney to recover the money and that they had discussed different methods of compensation, including hourly and contingency fee arrangements. Shetestified she was not able to pay a $200.00 an hour fee and that an hourly arrangement would have prevented her from pursuing the suit. In addition to the retirement benefits, she requested that the trial court award her attorney fees of 40% of her damage recovery, which is the contingency fee amount she agreed to pay her attorney.
In addition to the parties' testimony, records of Lee's accounts at Smith Barney, Raymond James, and Edward Jones covering the nine years since his retirement were admitted into evidence without objection. Further, a summary showing the beginning balances at each company, early distributions, and ending balances was introduced without objection. Based on that summary, (1) Lee's retirement benefits as of March 2006 totaled $403,706.45, (2) between March 2006 and the date on which Lee's summary was created, Lee took early distributions totaling $213,209.18, and (3) the ending balance of Lee's retirement account on January 31, 2015, was $385,151.71.
Finally, Holoubek's trial counsel, Clay Wilder, testified that he has thirty years' experience practicing law and that the hearing lasted one and one-half hours, but that he and his staff put forth a great deal of effort to boil down a lot of material. He also testified that his services were necessary to enable Holoubek to obtain the necessary financial information from the various firms. Wilder told the court that he had to travel to St. Louis, Missouri, to get the records from Edward Jones and that he paid $300.00 to obtain the records from Raymond James. He testified that obtaining the records required multiple hours of effort by him and his staff. He also testified that, at his standard rate of $200.00 an hour, the attorney fees would have been out of proportion to the value of Holoubek's claim. Since his client could not afford to pay on an hourly basis, he andHoloubek agreed to a standard contingency fee in East Texas of 40%.1 Wilder also testified that he had represented Holoubek for a long period of time, that he believed the 40% should be measured using Holoubek's total recovery, and that he believed he should be entitled to around $40,000.00.2 On cross-examination, he acknowledged the prior determination of the court that Holoubek owned a portion of the retirement benefits, that he knew she would be able to recover her portion, and that he had represented her in the prior proceeding.
The trial court entered judgment in favor of Holoubek for $76,935.98, awarded Holoubek's counsel $30,774.27 in attorney fees, and imposed a lien on Lee's accounts at Edward Jones to secure payment of those sums. After a request by Lee, the trial court entered findings of fact and conclusions of law.
In his first point of error, Lee asserts that the trial court erred as a matter of law in awarding attorney fees in this matter.3 Lee argues that contingency fee arrangements are not permissible in family law matters under the Texas Rules of Professional Conduct,4 that Holoubek created thesituation that necessitated an attorney's services by her own negligence in failing to secure a qualified domestic relations order after the 1993 hearing, that attorney fees are not recoverable under Section 9.205 of the Texas Family Code5 under the facts of this case, and that the award of attorney fees was barred by res judicata since no attorney fees were awarded in the 1993 hearing. However, at trial Lee did not object to the testimony of Holoubek's counsel regarding attorney fees, nor did he assert that Holoubek was not entitled to recover attorney fees.
In order to preserve a complaint for appellate review, our Rules require that the party present the complaint "to the trial court by a timely request, objection, or motion." TEX. R. APP. P. 33.1(a)(1); City of Port Isabel v. Shiba, 976 S.W.2d 856, 860 (Tex. App.—Corpus Christi 1998, pet. denied). Since Lee did not object to the award of attorney fees in the trial court,6 he has preserved nothing for our appellate review. See Shiba, 976 S.W.2d at 860; County of El Paso v. Boy's Concessions, Inc., 772 S.W.2d 291, 293 (Tex. App.—El Paso 1989, no writ). We overrule this point of error.
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