in the Interest of S. D. J. and C. M. J., Minor Children ( 2007 )

                                                                                                        NO. 12-06-00220-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF       §                      APPEAL FROM THE 307TH

S.D.J. AND C.M.J.,   §                      JUDICIAL DISTRICT COURT OF

MINOR CHILDREN            §                      GREGG COUNTY, TEXAS

MEMORANDUM OPINION

            Appellant John M. Jeffers appeals the trial court’s order awarding attorney’s fees to Appellee Elizabeth Ann Schieck’s attorney and to the amicus attorney.  In his sole issue, Jeffers argues that the trial court abused its discretion by awarding these fees after he filed a nonsuit.  We affirm.

Background

            Jeffers and Schieck are the parents of S.D.J. and C.M.J. and were divorced on December 5, 2002.  The final decree of divorce ordered that Jeffers pay monthly child support to Schieck.  On February 9, 2004, Jeffers filed a petition to modify the parent-child relationship requesting modification of possession, access, and child support.  Schieck filed a special appearance, plea to the jurisdiction, and original answer.  On May 4, 2004, the trial court noted that Schieck withdrew her objection to the trial court’s jurisdiction and her special appearance.  On May 7, 2004, the trial court appointed an amicus attorney and ordered that Jeffers and Schieck each pay attorney’s fees to the amicus attorney.  On February 1, 2005, Schieck filed an original answer and again requested attorney’s fees, but did not pay the filing fee for a counterclaim.¹

            On October 7, 2005, Schieck filed a motion for enforcement of the child support order and an order to appear.  She stated that Jeffers had violated the final decree of divorce by failing to pay her the full amount of child support since August 2005. She requested that Jeffers be held in contempt, fined, and confined in county jail until he complied with the trial court’s order.  Further, Schieck requested attorney’s fees, expenses, and costs.  Jeffers filed an answer to Schieck’s motion.  On November 14, 2005, Schieck filed a motion for withdrawal and substitution of attorneys.

            According to both parties and the trial court, Jeffers filed a notice of nonsuit on November 29, 2005.² Further, according to both parties, there was a hearing on Schieck’s motion for enforcement of the child support order, but no order was entered.  On February 9, 2006, the trial court held a hearing on attorney’s fees and, afterwards, stated that an order regarding the contempt matter had not been entered and that there were outstanding matters, including the payment of attorney’s fees.  On March 24, 2006, the trial court ordered that Jeffers pay Schieck’s attorney’s fees in the amount of $12,022.29, one-half of the amicus attorney’s fees incurred from April 2004 through August 2004, and all of the amicus attorney’s fees, expenses, and costs incurred from September 2004 through the date of the order.

            In its original and amended findings of fact and conclusions of law, the trial court found that Schieck’s motion for enforcement of child support order requested attorney’s fees, that no order was ever entered on Schieck’s motion, and that this action remained pending notwithstanding Jeffers’s notice of nonsuit.  The trial court also found that, after filing her motion for enforcement of the child support order, Schieck incurred attorney’s fees in the amount of $12,022.29 for the benefit of her newly employed attorney whose representation occurred entirely after October 7, 2005.  This appeal followed.

Attorney’s Fees

            In his sole issue on appeal, Jeffers argues that the trial court abused its discretion in awarding attorney’s fees to Schiek’s counsel and to the amicus attorney after Jeffers filed a nonsuit. More specifically, Jeffers contends that, although Schieck requested attorney’s fees in her answer to his motion to modify, she failed to pay a mandatory filing fee for a counterclaim. Because no filing fee was paid, Jeffers argues that Schieck did not allege a claim for affirmative relief that survived the nonsuit.

Applicable Law

            The award of attorney’s fees in a suit affecting the parent-child relationship is within the trial court’s discretion.  In re A.C.J., 146 S.W.3d 323, 327 (Tex. App.–Beaumont 2004, no pet.).  We will not reverse a trial court’s judgment on attorney’s fees in a suit affecting the parent-child relationship absent a clear showing of abuse of discretion.  Id.

            Rule 162 of the Texas Rules of Civil Procedure states that any nonsuit pursuant to this rule shall not prejudice the right of an adverse party to be heard on a pending claim for affirmative relief or excuse the payment of all costs taxed by the clerk.  Tex. R. Civ. P. 162.  A claim for affirmative relief must allege a cause of action, independent of the plaintiff’s claim, on which the claimant could recover compensation or relief, even if the plaintiff abandons or is unable to establish his cause of action.  Univ. of Tex. Med. Branch v. Est. of Blackmon, 195 S.W.3d 98, 101 (Tex. 2006).  A defendant does not seek affirmative relief by claims that merely resist the plaintiff’s right to recover. Le v. Kilpatrick, 112 S.W.3d 631, 634 (Tex. App.–Tyler 2003, no pet.).  A nonsuit cannot affect a defendant’s request for affirmative relief that was pending before the nonsuit was filed. Quanto Internat’l Co. v. Lloyd, 897 S.W.2d 482, 486 (Tex. App.–Houston [1st Dist.] 1995, no writ).  An affirmative claim, stated in an answer, for recovery of attorney’s fees for preparation and prosecution of a defense constitutes a counterclaim if the filing fee for a counterclaim is paid.  In re C.A.S., 128 S.W.3d 681, 686 (Tex. App.–Dallas 2003, no pet.).

Analysis

            Jeffers argues that Schieck failed to allege a claim for affirmative relief because she did not pay the mandatory filing fee for a counterclaim when she requested attorney’s fees in her answer. However, before Jeffers filed his notice of nonsuit, Schieck filed a motion for enforcement of child support.  Schieck’s motion alleged a cause of action and requested relief from Jeffers’s failure to pay child support.  Regardless of whether Jeffers abandoned or failed to establish his petition to modify, Schieck could pursue her claim for enforcement of  child support ordered in the final decree of divorce.  See Univ. of Tex. Med. Branch, 195 S.W.3d at 101. As such, Jeffers’s nonsuit could not affect Schieck’s request for affirmative relief pending before the nonsuit was filed.  See Quanto Internat’l Co., 897 S.W.2d at 486.  The trial court ordered that attorney’s fees be paid to the attorney who represented Schieck after filing the motion for enforcement. Because the motion for enforcement constituted a claim for affirmative relief and was pending when Jeffers filed his notice of nonsuit, the trial court did not abuse its discretion by awarding attorney’s fees to Schieck’s attorney.

            Although Jeffers argued that the trial court abused its discretion by awarding attorney’s fees to the amicus attorney, his brief did not contain a clear and concise argument for the contention made with appropriate citations to the authorities and to the record.  See Tex. R. App. P. 38.1(h).  In fact, his brief did not contain any argument regarding the attorney’s fees awarded to the amicus attorney. Therefore, he has waived this portion of his issue. Accordingly, we overrule Jeffers’s sole issue.

Disposition

            The judgment of the trial court is affirmed.

                                                                                                    BRIAN HOYLE  

                                                                                                               Justice

Opinion delivered June 29, 2007.

Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

(PUBLISH)

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¹ The record does not show whether Schieck paid the mandatory filing fee.  However, Schieck does not dispute Jeffers’s contention that she failed to do so.

² The clerk’s record does not include Jeffers’s notice of nonsuit.