Hernandez v. Frithiof, 03-23-00787-CV, September 30, 2026.
On appeal from County Court at Law No. 2 of Williamson County
Synopsis
Texas Family Code section 154.127 requires a support order covering multiple children to reduce child support—and corresponding medical support—when the obligation for an older child terminates. A trial court abuses its discretion by maintaining the two-child rate after the older child reaches majority, although the appellate court may modify the judgment when the record establishes the correct step-down amounts.
Relevance to Family Law
Hernandez v. Frithiof is a drafting and rendition case with direct consequences for SAPCRs, divorces involving minor children, and post-divorce modifications. When support is ordered for children with different emancipation dates, counsel should ensure that the proposed order states the amount due during each successive period rather than leaving the obligor liable at the original, multi-child rate until the youngest child emancipates.
The opinion also carries an important attorney’s-fee lesson. Failure to object at trial can waive a complaint that fees were not segregated between enforcement and modification claims, but legal- and factual-sufficiency challenges remain available after a bench trial. Fee claimants should therefore present evidence satisfying the lodestar requirements even when billing records are admitted without objection.
Case Summary
Fact Summary
Patricio Hernandez and Amber Frithiof were the parents of two children, one born in 2006 and the other in 2007. Their parenting and support arrangements had been governed by several SAPCR orders. Under temporary orders entered in 2020, Frithiof became sole managing conservator, Hernandez was prohibited from contacting the children, and Hernandez was ordered to pay $1,750 per month in child support.
By the time of the 2023 modification proceedings, Hernandez had been convicted of sexually assaulting his stepdaughter and sentenced to twenty-eight years in prison. He had stopped paying child support in December 2022. His counsel represented that he had lost his employment income and could no longer provide health insurance through his former employer, although the evidence also showed that he was paying $600 per month in support for another child.
The principal contested issue at the modification hearing was support. The trial court applied the child-support guidelines and ordered Hernandez to pay $1,750 per month for the full twenty-two-month period remaining before the younger child’s emancipation. It converted that obligation into a $38,500 lump-sum award. The court similarly ordered $26,400 in lump-sum medical and dental support based on the unreduced two-child amount for the entire period.
The problem was that the older child would reach majority after the first nine months. The order did not reduce child or medical support for the remaining thirteen months, during which only the younger child would remain eligible for support.
The trial court also awarded $12,500 in child-support arrearages, $15,000 in unreimbursed medical and dental expenses, $20,000 in attorney’s fees enforceable as child support, and $35,000 in attorney’s fees enforceable as a civil judgment. Findings entered after an appellate abatement listed corrected support totals of $33,950 in child support and $18,600 in medical support, but the underlying judgment had not incorporated those reductions.
Issues Decided
The Third Court of Appeals addressed whether:
- A support order covering two children must reduce child support when the older child reaches majority.
- Medical support must likewise decrease after the support obligation for the older child terminates.
- The appellate court could modify the lump-sum awards to reflect the proper step-down amounts.
- Hernandez preserved his complaint that attorney’s fees attributable to enforcement had not been segregated from fees attributable to modification.
- The evidence was legally and factually sufficient to establish that the awarded attorney’s fees were reasonable and necessary.
- Counsel’s unsworn statements could be treated as attorney’s-fee testimony when the circumstances demonstrated that the statements were offered as testimony and opposing counsel did not object on that basis.
Rules Applied
Texas Family Code section 154.127 requires an order for the support of more than one child to provide for a reduction or termination of support as each child’s eligibility ends. The order must establish the amount payable during each period in which the number of children entitled to support changes.
Consistent with Newberry v. Bohn-Newberry, 146 S.W.3d 233, 237 (Tex. App.—Houston [14th Dist.] 2004, no pet.), a trial court abuses its discretion by requiring an obligor to continue paying support attributable to a child after the support obligation for that child has terminated.
Attorney’s fees are generally calculated under the lodestar method: reasonable hours worked multiplied by a reasonable hourly rate. Under Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469, 498, 501–02 (Tex. 2019), sufficient proof ordinarily includes evidence of:
- The particular services performed;
- The person who performed those services;
- Approximately when the services were performed;
- The reasonable amount of time required; and
- The reasonable hourly rate for each person performing the services.
Billing records are not invariably required, but they are strongly encouraged when the requested fees are contested.
An objection that a fee claimant failed to segregate recoverable from nonrecoverable fees generally must be made in the trial court. See Green International, Inc. v. Solis, 951 S.W.2d 384, 389–90 (Tex. 1997). That preservation rule applies in a bench trial.
By contrast, Texas Rule of Appellate Procedure 33.1(d) permits legal- and factual-sufficiency complaints arising from a nonjury trial to be raised for the first time on appeal. Admission of a fee exhibit without objection does not concede that the evidence is sufficient to establish reasonable and necessary fees.
Finally, although an attorney’s statements ordinarily must be under oath to constitute evidence, unsworn statements may be treated as testimony when the circumstances place the opposing party on notice that testimony is being offered and the opposing party does not object. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); In re Wallingford, 64 S.W.3d 22, 24–25 (Tex. App.—Austin 1999, orig. proceeding).
Application
The trial court calculated support using the correct two-child amount but applied that amount for too long. The older child remained eligible for support for only nine months of the twenty-two-month period. Child support was therefore properly calculated at $1,750 per month for those nine months, producing a subtotal of $15,750. For the remaining thirteen months, the obligation had to decrease to the one-child amount of $1,400 per month, producing a subtotal of $18,200. The correct aggregate child-support award was $33,950—not $38,500.
The same error affected medical support. The two-child medical-support obligation of $1,200 per month applied for nine months, totaling $10,800. After the older child reached majority, medical support decreased to $600 per month for the remaining thirteen months, totaling $7,800. The correct aggregate medical-support award was therefore $18,600—not $26,400.
Frithiof agreed that the judgment failed to provide the required reductions and filed a motion for remittitur using those calculations. The corrected figures also matched the trial court’s later findings of fact and conclusions of law. Because the necessary amounts were established and undisputed, the court of appeals could modify the judgment rather than remand solely to recalculate support.
The attorney’s-fee issues required a different preservation analysis. Hernandez did not timely object that Frithiof had failed to segregate fees attributable to enforcement from those attributable to modification. He therefore could not obtain reversal merely on a segregation theory.
That waiver did not foreclose his challenge to the sufficiency of the fee evidence. Because the case was tried to the court, Hernandez could raise legal- and factual-sufficiency complaints for the first time on appeal. Nor did his agreement to the admissibility of the fee exhibit concede that the requested fees were reasonable, necessary, or recoverable.
The appellate court treated Frithiof’s counsel’s courtroom presentation as testimony despite the absence of a formal oath. The trial court had expressly invited testimony, counsel stated that he could establish the matter through his own testimony, and he concluded by stating that he “pass[ed]” himself. Hernandez’s attorney declined cross-examination and did not object that counsel was unsworn. Nevertheless, the fee award remained subject to the evidentiary requirements governing reasonable and necessary fees, and the court reversed the attorney’s-fee award and remanded that issue for further proceedings.
Holding
The trial court abused its discretion by requiring Hernandez to pay child support at the two-child rate after the older child reached majority. Section 154.127 required the obligation to step down from $1,750 to $1,400 per month for the final thirteen months. The court of appeals modified the lump-sum child-support award to $33,950.
The trial court likewise erred by continuing medical support at the two-child rate for the entire period. The obligation had to decrease from $1,200 to $600 per month after the older child’s majority. The appellate court modified the lump-sum medical-support award to $18,600.
Hernandez waived his failure-to-segregate complaint because he did not present that objection in the trial court. The fact that the matter was tried without a jury did not excuse the absence of a timely segregation objection.
Hernandez did not waive his challenge to the legal and factual sufficiency of the attorney’s-fee evidence. The court reversed the attorney’s-fee award and remanded for further proceedings concerning fees.
Practical Application
For multiple-child support orders, the safest practice is to include a separate paragraph for each support period. Each paragraph should identify the triggering event, the children remaining eligible for support, the monthly amount due, and the date on which the new amount begins. A generic statement that support continues until the youngest child turns eighteen is not a substitute for the reductions required by section 154.127.
The same discipline should be applied to medical and dental support. If the amount is tied to the number of covered children or the cost of coverage, the judgment should state the reduced amount payable after each child’s eligibility terminates. Counsel should not assume that a child-support step-down automatically corrects a separately stated medical-support obligation.
When a court converts future monthly obligations into a lump sum, verify every period independently. Calculate the number of months before and after each emancipation event, multiply each period by the applicable rate, and confirm that the aggregate figure in the decretal language matches the underlying calculations.
In enforcement and modification proceedings tried together, fee segregation should be addressed before or during trial. The fee claimant should identify which services relate to enforcement, modification, conservatorship, discovery, sanctions, or other claims and should explain any work that is so intertwined that segregation is not required. The opposing party should object expressly if the evidence does not segregate recoverable from nonrecoverable work.
Finally, do not confuse admissibility with sufficiency. A billing statement may be admitted without objection and still fail to prove reasonable and necessary fees under Rohrmoos. The proponent should connect the records to competent testimony concerning the work performed, time spent, rates charged, personnel involved, and necessity of the services.
Checklists
Drafting a Multiple-Child Support Order
- Identify each child and the child’s anticipated emancipation date.
- State the initial monthly child-support amount.
- State the reduced monthly amount after the first child’s eligibility terminates.
- Add an additional step-down for every remaining child, if applicable.
- Define the statutory events that may terminate support before the anticipated date.
- Specify when each reduced payment begins.
- Confirm that wage-withholding language reflects the same step-down schedule.
- Ensure that the decretal language—not merely findings or recitals—contains the reductions.
- Compare the final order against Texas Family Code section 154.127 before submission.
Calculating Lump-Sum Future Support
- Create a separate date range for each number of eligible children.
- Count the months in each period.
- Apply the correct guideline percentage or court-ordered amount to each period.
- Account for other children before the court when calculating applicable percentages.
- Multiply each monthly rate by the number of months in that period.
- Add the subtotals and compare the result with the proposed judgment.
- Perform the same calculation independently for medical and dental support.
- Place the calculations in the record through testimony, an exhibit, or both.
- Confirm that findings of fact and the signed judgment state consistent figures.
Addressing Medical and Dental Support
- Determine whether health coverage remains available for each eligible child.
- Establish the actual cost attributable to the children when relevant.
- Identify the amount due while all children remain eligible.
- Include a reduced amount after each child’s eligibility ends.
- Address uninsured and unreimbursed expenses separately.
- Specify each party’s percentage responsibility for unreimbursed expenses.
- Distinguish prospective medical support from past unreimbursed expenses.
- Make the medical-support step-down explicit rather than relying on the child-support provisions.
Proving Attorney’s Fees
- Present evidence of the particular legal services performed.
- Identify every attorney, paralegal, or other professional performing the work.
- Establish when the services were performed.
- Prove the time reasonably required for each category of work.
- Establish the reasonable hourly rate for each timekeeper.
- Offer contemporaneous, sufficiently detailed billing records when available.
- Explain redactions without eliminating information necessary for lodestar review.
- Address the necessity of the work, not merely the total amount billed.
- Segregate fees among enforcement, modification, and other claims.
- Explain why any allegedly intertwined services cannot reasonably be segregated.
- Obtain an express finding supporting the amount awarded.
Preserving Challenges to Attorney’s Fees
- Object at trial if recoverable and nonrecoverable fees have not been segregated.
- State the segregation objection expressly and obtain a ruling.
- Object separately to inadmissible hearsay, lack of foundation, or improper expert testimony.
- Cross-examine the fee witness about hours, rates, staffing, duplication, and billing judgment.
- Identify entries that are vague, block-billed, duplicative, or unrelated to recoverable claims.
- Distinguish an admissibility objection from a sufficiency challenge.
- Request findings of fact and conclusions of law after a bench trial.
- Challenge both the evidentiary basis and the legal mechanism for enforcing the fee award.
Reviewing the Final Judgment
- Compare the judgment with the trial court’s oral ruling.
- Compare the judgment with any findings of fact and conclusions of law.
- Verify all child-support and medical-support totals.
- Confirm that each step-down appears in the operative provisions.
- Check whether attorney’s fees are enforceable as child support or only as a civil judgment.
- Verify that arrearages are separated from prospective support.
- Confirm that unreimbursed medical expenses are not duplicated in medical support.
- File a motion to modify, correct, or reform the judgment if the numbers or enforcement provisions are inconsistent.
Citation
Hernandez v. Frithiof, No. 03-23-00787-CV (Tex. App.—Austin Sept. 30, 2026, no pet. h.) (mem. op.).
Full Opinion
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