Rosscer Craig Tucker, II v. Lizabeth Thomas

Affirmed in Part, Reversed and Remanded in Part, and En Banc Majority,
Concurring, and Dissenting Opinions filed December 20, 2011.
In The
Fourteenth Court of Appeals
NO. 14-09-01081-CV
ROSSCER CRAIG TUCKER, II, Appellant
V.
LIZABETH THOMAS, Appellee
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Cause No. 2003-55104
EN BANC MAJORITY OPINION
Does a trial court have the authority to order a parent to pay attorney‘s fees as
additional child support in a non-enforcement modification suit? This issue has divided
our state‘s intermediate courts of appeals as well as panels of this court, and it is the key
issue presented to the en banc court today.
The father of three children filed suit seeking modification of a final order
rendered in a suit affecting the parent-child relationship, and the mother counter-sued,
also seeking modification of that order. The trial court denied the relief requested by the
father and granted in part the relief requested by the mother, increasing the father‘s
monthly child-support obligation. The trial court also found that certain fees incurred by
an amicus attorney and by the mother were necessaries for the children‘s benefit, and
ordered the father to pay these fees as additional child support. Today, the en banc court
upholds this court‘s conclusion in Hardin v. Hardin and holds that under the Texas
Family Code, the trial court in a non-enforcement modification suit has jurisdiction and
authority to order a parent to pay reasonable attorney‘s fees, as additional child support,
for legal services benefitting the children. Thus, the trial court had authority to order the
father to pay attorney‘s fees incurred by the amicus attorney and the mother as additional
child support. But because the evidence is insufficient to support the trial court‘s finding
that the mother‘s attorney‘s fees were reasonable, we reverse the trial court‘s order that
the father pay the fees incurred by the mother and remand for further proceedings.
Finding no merit in the father‘s challenges to the order regarding the amicus attorney‘s
fees and the denial of the father‘s requested modification, we affirm the remainder of the
trial court‘s order.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant Rosscer (―Ross‖) Craig Tucker, II and appellee Lizabeth Thomas were
divorced in 2005. In the divorce decree, the trial court appointed Ross and Lizabeth joint
managing conservators of their three minor children. Under that decree, Lizabeth had the
exclusive right to designate the children‘s primary residence, and Ross had the right to
possession of the children under a standard possession order.
In December 2008, Ross filed an original petition for modification of the parent-
child relationship, seeking to be appointed joint managing conservator with the exclusive
right to designate the children‘s primary residence. Ross also sought an order
geographically restricting the children‘s primary residence to Harris County, Texas.
Lizabeth filed a counter-petition, seeking appointment as sole managing conservator of
the children, modification of the terms and conditions for Ross‘s access to and possession
2
of the children, and an increase in Ross‘s monthly child-support obligation. An amicus
attorney was appointed to represent the children‘s interests.
The case was tried to the bench on eleven days over a ten-week period. On the
final day of trial, Ross stated that, if the trial court were to increase his monthly child-
support obligation and order him to pay attorney‘s fees to Lizabeth, Ross would ―have to
go to bankruptcy court.‖ Lizabeth‘s attorney asked the trial court to order that Ross pay
Lizabeth‘s attorney‘s fees as additional child support. The amicus attorney also
requested that Lizabeth and Ross be ordered to pay reasonable attorney‘s fees to the
amicus attorney as additional child support.
In its final order, the trial court disposed of the parties‘ modification requests.
Among other things, the trial court denied Ross‘s petition for modification and increased
Ross‘s monthly child-support obligation from $1,800 to $2,200. The trial court also
found that the amicus attorney had incurred $9,137.50 in attorney‘s fees, that these fees
are reasonable, and that they are necessaries for the children‘s benefit. The trial court
ordered that Ross and Lizabeth each pay the amicus attorney one-half of the amount of
these fees as additional child support. The trial court also found that Lizabeth had
expended $82,375 in reasonable attorney‘s fees as necessaries for the children‘s benefit.
The trial court ordered Ross to pay this amount plus postjudgment interest to Lizabeth as
additional child support by making payments of $500 per month until the amount owed is
paid in full.
Ross filed a motion for new trial in which he challenged the trial court‘s order that
Ross pay attorney‘s fees to the amicus attorney and to Lizabeth as additional child
support. The trial court denied this motion.
II. ISSUES PRESENTED
In his first issue, Ross asserts that the trial court abused its discretion by awarding
Lizabeth attorney‘s fees, by assessing attorney‘s fees and amicus fees as child support,
and by assessing compound postjudgment interest on the attorney‘s fees. In his second
3
issue, Ross asserts that the trial court abused its discretion by denying the relief Ross
requested in his modification petition.
III. STANDARD OF REVIEW
To prevail in their respective modification suits Ross and Lizabeth, each a party
seeking relief, had to show that the circumstances of the children or a person affected by
the order had materially and substantially changed since the date of the divorce decree.
See Tex. Fam. Code Ann. § 156.401(a)(1); In re D.S., 76 S.W.3d 512, 520 (Tex. App.—
Houston [14th Dist.] 2002, no pet.). In determining whether child support should be
modified, the trial court is obliged to examine the circumstances of the children and
parents at the time of the divorce decree and the circumstances existing at the time of trial
in the modification suit. See In re D.S., 76 S.W.3d at 520. Upon a showing of the
requisite changed circumstances, the trial court may alter the child-support obligations.
See id. Trial courts have broad discretion to determine and modify the amount of child
support that a parent must pay. See id. We review the trial court‘s modification ruling
under the abuse-of-discretion standard. See id. at 521. The test for abuse of discretion is
whether the trial court acted arbitrarily or unreasonably, or whether it acted without
reference to any guiding rules or principles. See Worford v. Stamper, 801 S.W.2d 108,
109 (Tex. 1990). Under the abuse-of-discretion standard of review, challenges to the
sufficiency of the evidence are not independent grounds of error but are relevant factors
in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266
(Tex. App.—Houston [14th Dist.] 2002, no pet.). An abuse of discretion does not occur
when the record contains some evidence of a substantial and probative character to
support the trial court‘s ruling. Id.
4
IV. ANALYSIS
A. In a non-enforcement modification suit, does a trial court have jurisdiction
and authority to order payment of attorney’s fees as additional child
support?
Under his first issue, Ross argues that in a modification suit in which the trial court
does not order a party to pay a past-due child-support obligation,1 the trial court has no
authority to order payment of attorney‘s fees to a parent or amicus attorney as additional
child support. The reasoning of the First Court of Appeals in In re Moers supports
Ross‘s argument. See 104 S.W.3d 609, 611–12 (Tex. App.—Houston [1st Dist.] 2003,
no pet.). Though he relies upon the In re Moers case, Ross acknowledges that this court
declined to follow In re Moers and held to the contrary in Hardin v. Hardin. See 161
S.W.3d 14, 24–27 (Tex. App.—Houston [14th Dist.] 2004) (holding in non-enforcement
modification suit that court of continuing jurisdiction may order one parent to pay the
reasonable attorney‘s fees of the other parent as additional child support if the fees are
necessaries for the benefit of the children), judgm’t vacated, op. not withdrawn, No. 14-
03-00342-CV, 2005 WL 310076, at *1 (Tex. App.—Houston [14th Dist.] Feb. 10, 2005,
no pet.) (mem. op.). This court has followed the Hardin precedent. See, e.g., In re
J.A.D., No. 14-08-00689-CV, 2010 WL 2649961, at *1–4 (Tex. App.—Houston [14th
Dist.] Jul. 6, 2010, no pet.) (holding, in modification suit in which no enforcement was
ordered, that trial court did not abuse its discretion in ordering father to pay mother‘s
attorney‘s fees as child support under the ―necessaries‖ rule) (mem. op). But, as noted by
Ross, in two opinions this court followed In re Moers without citing or discussing this
court‘s prior precedent in Hardin. See McCloskey v. McCloskey, No. 14-06-00470-CV,
2009 WL 3335868, at *2 (Tex. App.—Houston [14th Dist.] Apr. 2, 2009, pet. denied)
(mem. op.); In re D.C.M., No. 14-06-00844-CV, 2008 WL 4146785, at *10 (Tex. App.—
Houston [14th Dist.] Sept. 9, 2008, pet. denied) (mem. op.). On our own motion, we
1
A party can file a motion for enforcement in a modification suit. See Tex. Fam. Code Ann. §
157.003(a) (West 2008). In this opinion, we refer to a modification suit in which the trial court does not
grant a motion for enforcement as a ―non-enforcement modification suit.‖
5
decided to hear this case en banc to resolve the conflict among opinions of this court as to
whether a trial court in a non-enforcement modification suit has jurisdiction and authority
to order payment of attorney‘s fees as additional child support. See Tex. R. App. P.
41.2(c). Compare In re J.A.D., 2010 WL 2649961, at *1–4, and Hardin, 161 S.W.3d at
24–27, with McCloskey, 2009 WL 3335868, at *2, and In re D.C.M., 2008 WL 4146785,
at *10.
1. The trial court had jurisdiction and authority to order additional
child support in general.
Because the trial court rendered the divorce decree, the trial court has continuing,
exclusive jurisdiction over the matters addressed in Title 5 of the Family Code in
connection with Ross and Lizabeth‘s children, including child-support issues. See Tex.
Fam. Code Ann. § 155.001 (West 2008) (stating, with exceptions not applicable to case
under review, that upon rendition of a final order, a trial court acquires continuing,
exclusive jurisdiction over the matters provided for by Title 5 of the Family Code in
connection with a child). On appeal, Ross does not dispute that the trial court has
continuing, exclusive jurisdiction. But Ross asserts that the trial court lacked authority to
order him to pay attorney‘s fees as additional child support because courts do not have
such authority in a non-enforcement modification suit.
In the divorce decree the trial court rendered orders regarding Ross‘s duty to
support his children. As the court with continuing, exclusive jurisdiction, the trial court
is vested with jurisdiction to modify the decree regarding (1) Ross‘s duty to support his
children, (2) conservatorship issues, and (3) issues regarding possession of and access to
the children. See Tex. Fam. Code Ann. § 155.003 (West Supp. 2010) (stating, with
exceptions not applicable to case under review, that ―a court with continuing, exclusive
jurisdiction may exercise its jurisdiction to modify its order regarding managing
conservatorship, possessory conservatorship, possession of and access to the child, and
support of the child‖).
6
With exceptions not applicable to the case under review, the Texas Legislature has
provided that a court with continuing, exclusive jurisdiction may modify its prior order
providing for the support of a child if:
(1) the circumstances of the child or a person affected by the order have
materially and substantially changed since the earlier of:
(A) the date of the order‘s rendition; or
(B) the date of the signing of a mediated or collaborative law
settlement agreement on which the order is based . . . .
Tex. Fam. Code Ann. § 156.401(a) (West 2008). Lizabeth invoked this provision in her
counter-petition seeking an increase in Ross‘s child-support obligations, and the trial
court impliedly found this provision to apply when it granted Lizabeth‘s counter-petition
in part, ordered an increase in Ross‘s monthly child-support obligation, and ordered Ross
to pay attorney‘s fees as additional child support. See id.; Lemons v. EMW Mfg. Co., 747
S.W.2d 372, 373 (Tex. 1988) (per curiam) (stating that, in the absence of findings of fact
by the trial court, appellate courts presume that the trial court made all findings necessary
to support its judgment); Randle v. Randle, 700 S.W.2d 314, 315–16 (Tex. App.—
Houston [1st Dist.] 1985, no writ) (concluding that trial court impliedly found that the
circumstances of the child had materially and substantially changed in case in which the
trial court did not make any findings of fact and this finding was necessary to support the
judgment). Under the unambiguous language of the Family Code, the trial court had
jurisdiction and authority in the modification suit to order Ross to pay additional child
support. See Tex. Fam. Code Ann. §§ 155.003, 156.401(a); see also Tex. Fam. Code
Ann. § 154.001(a) (West 2008) (stating that ―the court may order either or both parents to
support a child in the manner specified by the order. . . .‖).
2. The trial court had jurisdiction and authority to order payment
of attorney’s fees as additional child support.
Given the trial court‘s clear jurisdiction and authority to order Ross to pay
additional child support, the next question is whether, in a non-enforcement modification
7
suit, the trial court could determine that Ross‘s duty to support his children includes a
duty to pay reasonable attorney‘s fees for legal services benefitting the children. Under
the unambiguous language of the Family Code and under precedent from the Supreme
Court of Texas, the answer to this question is ―yes.‖
―A parent of a child has . . . the duty to support the child.‖ Tex. Fam. Code Ann. §
151.001(a) (West 2008). In the Family Code, the Texas Legislature expressly states that
―a parent who fails to discharge the duty of support is liable to a person who provides
necessaries to those to whom support is owed.‖ Id. § 151.001(c). In this provision, the
Legislature has codified longstanding common-law principles. Under the plain language
of section 151.001(c),2 Ross‘s duty as a parent to support his minor children includes a
duty to provide them with necessaries.3 See id.; In re H.V., 252 S.W.3d 319, 327, n.55
(Tex. 2008) (concluding that a parent‘s duty of support includes a duty to pay for the
―necessaries‖ of the parent‘s children); In re W.J.S., 35 S.W.3d 274, 277–278 (Tex.
App.—Houston [14th Dist.] 2000, no pet.) (same as In re H.V.). This duty is not changed
by the divorce of Ross and Lizabeth, and ―a person who provides necessaries‖ under
section 151.001(c) can include Lizabeth, even though she is a parent of the children. See
In re B.I.V., 923 S.W.2d 573, 574–75 (Tex. 1996); Office of Attorney General v. Carter,
977 S.W.2d 159, 160–61 (Tex. App.—Houston [14th Dist.] 1998, no pet.). For more
than a century, Texas courts have held that reasonable attorney‘s fees incurred for the
benefit of a minor may constitute necessaries. See Searcy v. Hunter, 17 S.W. 372, 373
(Tex. 1891) (stating that reasonable attorney‘s fees for the benefit of a minor in
prosecuting a civil suit to recover money or property for the minor may be necessaries);
Askey v. Williams, 11 S.W. 1101, 1101–02 (Tex. 1889) (holding that reasonable
2
Unless otherwise stated, all statutory references in this opinion are to the Texas Family Code.
3
This legal rule has been part of the jurisprudence in America since the early days of our country. See 2
J. KENT, COMMENTARIES ON AMERICAN LAW 191 (3d ed. 1827) (stating that ―during the minority of the
child, the parent is absolutely bound to provide reasonably for [the child‘s] maintenance and education,
and [the parent] may be sued for necessaries furnished, and schooling given to a child, under just and
reasonable circumstances‖).
8
attorney‘s fees for the benefit of a minor in defending the minor against a criminal charge
were necessaries). Three years ago, the Supreme Court of Texas reaffirmed that
attorney‘s fees for services rendered for a child‘s benefit may constitute necessaries that
fall within the duty of support owed by that child‘s parents. See In re H.V., 252 S.W.3d
at 327, n.55.
Ross‘s duty to support his children encompasses an obligation to provide them
with necessaries, which may include reasonable attorney‘s fees for legal services
benefitting the children. See Tex. Fam. Code Ann. §§ 151.001(a), (c); In re H.V., 252
S.W.3d at 327, n.55; Searcy, 17 S.W. at 373; Askey, 11 S.W. at 1101–02. In Hardin v.
Hardin, this court cited section 154.001 but did not cite section 151.001 or section
156.401(a). See Hardin, 161 S.W.3d at 24–27. Nonetheless, the Hardin court noted that
the duty of a parent to pay attorney‘s fees as necessaries is based upon a parent‘s duty to
support his children. See id. at 25. In addition, the Hardin court cited non-enforcement
cases that cited the statutory predecessor to section 151.001. See id. at 25–26 (citing
Roosth v. Roosth and Daniels v. Allen); Roosth v. Roosth, 889 S.W.2d 445, 456–57 (Tex.
App.—Houston [14th Dist.] 1994, writ denied) (holding that trial court did not abuse its
discretion in ordering that father pay attorney‘s fees to mother as necessaries for the
benefit of the children in divorce decree and citing statutory predecessor to section
151.001); Daniels v. Allen, 811 S.W2d 278, 280 (Tex. App.—Tyler 1991, no writ)
(holding that trial court did not abuse its discretion in ordering that father pay attorney‘s
fees to mother as necessaries for the benefit of the children in paternity proceeding and
citing statutory predecessor to section 151.001). Though not cited in all of the opinions,
there is a sound statutory basis for the holdings in cases in which courts have determined
that the trial court in a non-enforcement modification suit has authority to order a parent
to pay reasonable attorney‘s fees as child support under the ―necessaries rule.‖4 See In re
4
Our dissenting colleagues rely upon the absence of any express statement of this authority in Chapter
156, sometimes referring to this absence as the ―silence‖ of Chapter 156. See post at pp. 5–6. Though the
Legislature could have stated this authority expressly in Chapter 156, its failure to do so is not dispositive.
The Legislature stated in section 156.401 that trial courts may modify a child-support order under
9
J.A.D., 2010 WL 2649961, at *1–4 (holding, in modification suit in which no
enforcement was ordered, that trial court did not abuse its discretion in ordering father to
pay mother‘s attorney‘s fees as child support under the ―necessaries‖ rule); In re A.J.J.,
No. 2-04-265-CV, 2005 WL 914493, at *5–6 (Tex. App.—Fort Worth Apr. 21, 2005, no
pet.) (mem. op.) (holding in non-enforcement modification suit that court of continuing
jurisdiction did not abuse its discretion in ordering father to pay reasonable attorney‘s
fees incurred by mother as necessaries for the children); Hardin, 161 S.W.3d at 25–26
(holding in non-enforcement modification suit that court of continuing jurisdiction may
order one parent to pay the reasonable attorney‘s fees of the other parent as necessaries
for the benefit of the children and thus as child support); Stevens v. Stevens, No. 05-03-
00249-CV, 2003 WL 21999900, at *2–3 (Tex. App.—Dallas Aug. 25, 2003, no pet.)
(mem. op.) (stating in non-enforcement modification suit that court of continuing
jurisdiction may order one parent to pay the reasonable attorney‘s fees of the other parent
as necessaries for the benefit of the children, but concluding that trial court abused its
discretion by concluding that fees were necessaries under the facts and circumstances of
the case under review); In re A.J.L., 108 S.W.3d 414, 421–22 (Tex. App.—Fort Worth
2003, pet. denied) (stating in non-enforcement modification suit that court of continuing
jurisdiction may order one parent to pay the reasonable attorney‘s fees of the other parent
as necessaries for the benefit of the children and holding that trial court abused its
discretion in ordering that non-parent pay attorney‘s fees as child support, given that non-
parent had no duty to pay for the children‘s necessaries). The statutory basis for these
holdings reflects a strong legislative policy of arming the court of continuing jurisdiction
circumstances such as those presented in the case under review. See Tex. Fam. Code Ann. §156.401. In
other chapters of the Family Code, the Legislature has stated that (1) the trial court may order a parent to
support a child in the manner specified in the order, with exceptions not applicable to the case under
review; and (2) a parent‘s duty to support minor children includes a duty to provide the children with
necessaries. See id. §§ 151.001, 154.001. These sections apply in modification actions, even though they
are not found in Chapter 156. See, e.g., In re A.L.E., 279 S.W.3d 424, 431 (Tex. App.—Houston [14th
Dist.] 2009, no pet.) (applying section 153.001 to modification suit under Chapter 156); Stanfield v.
Stanfield, No. 01-05-00379-CV, 2005 WL 3454139, at *2 (Tex. App.—Houston [1st Dist.] Dec. 15,
2005, no pet.) (applying section 154.001 to modification suit under Chapter 156) (mem. op.).
10
with the judicial tools to ensure that parents are held accountable in child support for
necessaries furnished for the benefit of their children.
The Texas Legislature has crafted a comprehensive statutory scheme in the Family
Code. Though the Legislature prohibits trial courts from taking various actions in
different parts of the Family Code, the Legislature uses language of permission in the
Family Code much more frequently than language of prohibition. In enacting laws
governing the rights and responsibilities of parents and the protection of children, the
Legislature made a policy choice to vest trial courts with vast power and broad discretion
over many important matters. The Family Code contains numerous provisions in which
the Legislature grants the trial judge wide latitude in crafting orders to meet the needs of
children and families. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)
(concluding that Family Code gives trial courts wide latitude in determining the best
interests of a minor child); Quijano v. Quijano, 347 S.W.3d 345, 349 (Tex. App.—
Houston [14th Dist.] 2011, no pet.) (stating that, under section 7.001, trial courts have
wide discretion in making a just and right division of the marital estate); In re Smith, 260
S.W.3d 568, 574 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) (stating that
trial courts are vested with broad discretion in determining the best interests of a child in
family law matters such as custody, visitation, and possession); Swaab v. Swaab, 282
S.W.3d 519, 532 (Tex. App.—Houston [14th Dist.] 2008, pet. dism‘d) (concluding that
trial courts have broad discretion in crafting the rights and duties of each conservator in
effectuating the best interest of the child); In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—
Houston [1st Dist.] 2002, pet. denied) (stating that trial courts have wide discretion in
determining the best interests of a child in family law matters such as child support);
Dade v. Dade, No. 01-05-00912-CV, 2007 WL 1153053, at *1 (Tex. App.—Houston [1st
Dist.] Apr. 19, 2007, no pet.) (noting that the Texas Legislature has conferred upon the
trial courts wide discretion to enforce property divisions contained in a divorce decree)
(mem. op.); Klise v. Klise, 678 S.W.2d 545, 546–47 (Tex. App.—Houston [14th Dist.]
1984, no writ) (stating that each child-support case stands on its own facts and that trial
11
courts have wide discretion in resolving child-support issues). This big-picture view is
strong evidence of the Legislature‘s choice to place broad discretion in the trial judge in
the resolution of family law matters.
The statutes we interpret today do not contain language which expressly prohibits
a trial court from ordering a parent to pay reasonable attorney‘s fees for legal services
benefitting the children as additional child support. Nor do these statutes expressly
authorize a trial court to take this action. But the silence is hardly an indication that the
Legislature intended to forbid an award of attorney‘s fees as child support in a non-
enforcement modification suit. To the contrary, in light of general statutes giving the trial
court authority to order parents to comply with their duty of support by paying for their
children‘s necessaries, the absence of statutory language placing limitations or
restrictions on the court‘s authority is some indication that the Legislature did not intend
to restrict this authority. See Tex. Fam. Code Ann. §§ 151.001, 154.001(a), 156.401. As
demonstrated in the plain terms of many sections in the Family Code, when the
Legislature intends to impose restrictions, it usually expresses this intention clearly and
concisely within the statutory language. See, e.g., Tex. Fam. Code Ann. § 153.001(b)
(West 2008) (stating that ―a court may not render an order that conditions the right of a
conservator to possession of or access to a child on the payment of child support‖). If
anything, the absence of such restrictions suggests the Legislature intended that in non-
enforcement modification suits, the trial court is vested with the power and authority to
determine whether a parent should be ordered to pay, as additional child support,
reasonable attorney‘s fees for legal services benefitting the children. The overall
statutory scheme of the Family Code makes clear that the Texas Legislature has entrusted
broad discretion to the family court judge and when the Legislature seeks to limit or
restrict that discretion, the Legislature generally says so. Under this regime, silence does
not indicate prohibition but rather permission.
12
In the case under review, the trial court determined that the attorney‘s fees
Lizabeth and the amicus attorney incurred are reasonable and that these fees are
necessaries for the benefit of and in the best interests of the children. Under applicable
statutes, the trial court was clothed with jurisdiction and authority to order Ross to pay
these attorney‘s fees as additional child support.5 See Tex. Fam. Code Ann. §§ 151.001,
154.001, 155.003, 156.401. Though five sister courts of appeals have followed In re
Moers,6 this court, in Hardin, and other courts have determined, correctly, that the trial
court in a non-enforcement modification suit may order a parent to pay reasonable
attorney‘s fees as child support based upon the parent‘s duty to pay for the children‘s
necessaries. See In re H.V., 252 S.W.3d at 327, n.55; Searcy, 17 S.W. at 373; Askey, 11
S.W. at 1101–02; In re J.A.D., 2010 WL 2649961, at *1–4; In re A.J.J., 2005 WL
5
These statutes permit a trial court to order a parent to pay the other parent or an amicus attorney
reasonable attorney‘s fees as child support in a non-enforcement modification suit. Because these statutes
do not expressly mention attorney‘s fees, our dissenting colleagues conclude that no statute permits such
an order. See post at pp. 1–5. But the Texas Legislature is free to express itself through general rather
than specific language, and the meaning of a statute can be implied from the express statements in the
statutory text. See Tex. Indus. Energy Consumers v. Centerpoint Energy Houston Electric, LLC, 324
S.W.3d 95, 105–07 (Tex. 2010) (holding that transferor‘s request to recover fee it had paid was within the
scope of the general statutory language allowing recovery of ―reasonable costs of participating in a
proceeding,‖ even though other party was initially responsible for paying this fee and even though statute
did not specifically provide that such recovery was allowed); Sturgis Air One, L.L.C. v. Harris County
Appraisal Dist., No. 14-09-00891-CV, —S.W.3d—,—, 2011 WL 1045296, at *4–6 (Tex. App.—Houston
[14th Dist.] Mar. 24, 2011, no pet.) (holding that the Legislature imposed a requirement implicitly, rather
than by means of statutory language expressly stating the requirement); Perry & Perry Builders, Inc. v.
Galvan, No. 03-02-00091-CV, 2003 WL 21705248, at *8 (Tex. App.—Austin Jul. 24, 2003, no pet.)
(holding that attorney‘s fees for quantum-meruit claim may be recovered under Texas Civil Practice and
Remedies Code section 38.001 because this claim falls within general statutory language, even though
statute does not specifically refer to quantum-meruit claims) (mem. op.). Our Legislature has provided
that a parent‘s child-support duty includes paying for a child‘s necessaries. See Tex. Fam. Code Ann. §
151.001(c). The Legislature‘s failure to expressly state that necessaries may include attorney‘s fees for
services rendered for a child‘s benefit does not prevent courts from concluding that such fees fall within
the scope of this general statutory language. See Tex. Indus. Energy Consumers, 324 S.W.3d at 105–07;
Perry & Perry Builders, Inc., 2003 WL 21705248, at *8.
6
See, e.g., In re M.A.F., No. 12-08-00231-CV, 2010 WL 2178541, at *9 (Tex. App.—Tyler May 28,
2010, no pet.) (mem. op.); In re A.S.Z., No. 2-07-259-CV, 2008 WL 3540251, at *1 (Tex. App.—Fort
Worth Aug. 14, 2008, no pet.) (per curiam) (mem. op.); Naguib v. Naguib, 183 S.W.3d 546, 547–48 (Tex.
App.—Dallas 2006, no pet.); Finley v. May, 154 S.W.3d 196, 199 (Tex. App.—Austin 2004, no pet.); In
re J.C.K., 143 S.W.3d 131, 143 (Tex. App.—Waco 2004, no pet.).
13
914493, at *5–6; Hardin, 161 S.W.3d at 25–26; Stevens, 2003 WL 21999900, at *2–3; In
re A.J.L., 108 S.W.3d at 421–22; In re W.J.S., 35 S.W.3d at 277–278.
3. In no statute has the Texas Legislature restricted the trial court’s
authority to order the payment of attorney’s fees as additional
child support to the enforcement context.
The courts in the Moers line of cases and our dissenting colleagues conclude that
the Texas Legislature has restricted the taxation of fees as child support to the
enforcement context.7 See In re Moers, 104 S.W.3d at 611–12. This conclusion conflicts
with the unambiguous language of the Family Code.
In construing a statute, this court‘s purpose is to give effect to the Legislature‘s
expressed intent. Iliff v. Iliff, 339 S.W.3d 74, 79 (Tex. 2011). If possible, this court must
ascertain that intent from the language the Legislature used in the statute and not look to
extraneous matters for an intent the statute does not state. Nat’l Liab. & Fire Ins. Co. v.
Allen, 15 S.W.3d 525, 527 (Tex. 2000). ―‗Our role . . . is not to second-guess the policy
choices that inform our statutes or to weigh the effectiveness of their results; rather, our
task is to interpret those statutes in a manner that effectuates the Legislature‘s intent.‘‖
Iliff, 339 S.W.3d at 79 (quoting McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003)).
When statutory language is unambiguous and yields only one reasonable interpretation,
this court must interpret the statute according to its plain meaning. Id.
In pertinent part, section 157.167, entitled ―Respondent to Pay Attorney‘s Fees
and Costs,‖ reads as follows:
(a) If the court finds that the respondent has failed to make child support
payments, the court shall order the respondent to pay the movant‘s
7
The rationale of the court in In re Moers is addressed in this opinion in subsections 4 and 5 of section
IV.A., infra. The cases that adopt or follow the Moers rule have not set forth any reasons in support of
this rule that are not contained in the Moers opinion. We refer to the Moers opinion and the opinions that
follow it as the ―Moers line of cases.‖
14
reasonable attorney‘s fees and all court costs in addition to the arrearages.
Fees and costs ordered under this subsection may be enforced by any means
available for the enforcement of child support, including contempt.
(b) If the court finds that the respondent has failed to comply with the terms
of an order providing for the possession of or access to a child, the court
shall order the respondent to pay the movant‘s reasonable attorney‘s fees
and all court costs in addition to any other remedy. If the court finds that
the enforcement of the order with which the respondent failed to comply
was necessary to ensure the child‘s physical or emotional health or welfare,
the fees and costs ordered under this subsection may be enforced by any
means available for the enforcement of child support, including contempt,
but not including income withholding.
Tex. Fam. Code Ann. § 157.167 (West 2008). Under section 157.167(a), if the trial court
finds that a respondent to a motion for enforcement has failed to make child-support
payments, the trial court must order the respondent to pay the movant‘s reasonable
attorney‘s fees and court costs as well as the child-support arrearages. See id. Without
the requirement of any finding that these fees and costs are child support or necessaries
for the benefit of the children, the trial court has the authority to enforce such an order by
any means available for the enforcement of child support, but the trial court is not
required to use these means of enforcement. See id.; Iliff, 339 S.W.3d at 81 (holding that
―may‖ as used in section 154.066 gave the trial court authority or permission); see also
Isaacs v. Isaacs, 338 S.W.3d 184, 187 (Tex. App.—Houston [14th Dist.] 2011, pet. filed)
(outlining various cumulative means available under the Family Code by which a trial
court may enforce an unpaid child-support obligation). The latter determination is within
the trial court‘s discretion according to the facts and circumstances in a particular case.
Nothing in the language of section 157.167(a) reflects any intent by the Legislature to
limit the circumstances under which trial courts may find that attorney‘s fees are
necessaries for the benefit of the children under other statutes, such as sections 151.001,
154.001(a), and 156.401.
15
The language in the second sentence of section 157.167(a), upon which the Moers
court and our dissenting colleagues rely heavily, was first added by the Texas Legislature
in 1999. See Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 18, 1999 Tex. Gen. Laws
3058, 3062 (amended 2003, 2005) (current version at Tex. Fam. Code Ann. §
157.167(a)). Our construction of the relevant sections of the Family Code does not
render this language superfluous or meaningless. Under our construction, the trial court
has discretion to find that attorney‘s fees incurred in prosecuting a motion for
enforcement are necessaries for the benefit of the children and thus constitute part of the
parent‘s child-support obligation. Under the statutory language added in 1999, trial
courts have the authority to enforce an award of attorney‘s fees and costs as if they were
child support, without any finding that the fees and costs actually are necessaries or child
support. See Tex. Fam. Code Ann. § 157.167(a). Giving trial courts discretion to enforce
attorney‘s fees awards as if they were child support is not duplicative of discretion to
determine that attorney‘s fees are child support because they are necessaries for the
benefit of the children.
Under section 157.167(b), if the trial court finds that a respondent to a motion for
enforcement has failed to comply with the terms of an order regarding possession of or
access to a child, the trial court must order the respondent to pay the movant‘s reasonable
attorney‘s fees and court costs. See id. § 157.167(b). If the trial court finds that the
enforcement of the order in question was necessary to ensure the child‘s physical or
emotional health or welfare, then the trial court has the authority to enforce this order of
fees and costs by any means available for the enforcement of child support except for
income withholding, but the trial court is not required to use these means of enforcement.
See id.; Iliff, 339 S.W.3d at 81 (holding that ―may‖ as used in section 154.066 gave the
trial court authority or permission). In contrast to the trial court‘s authority in section
157.167(a), under section 157.167(b) the trial court only has the authority to enforce the
fees and costs if the court makes the required finding, and, even then, the trial court does
not have the authority to enforce these fees and costs by means of income withholding.
16
See Tex. Fam. Code Ann. § 157.167(a),(b). There is nothing in the text of section
157.167(b) that suggests any intent by the Legislature to restrict the circumstances under
which trial courts may find that attorney‘s fees are necessaries for the benefit of the
children under other statutes (such as sections 151.001, 154.001(a), and 156.401).8 See
id. § 157.167(b).
In pertinent part, section 106.002, entitled ―Attorney‘s Fees and Expenses,‖ reads
as follows:
(a) In a suit under this title, the court may render judgment for reasonable
attorney‘s fees and expenses and order the judgment and postjudgment
interest to be paid directly to an attorney.
(b) A judgment for attorney‘s fees and expenses may be enforced in the
attorney‘s name by any means available for the enforcement of a judgment
for debt.
Tex. Fam. Code Ann. § 106.002 (West 2008). Under this statute, a court has the
authority to render judgment for reasonable attorney‘s fees and expenses, and the court
has the authority to render judgment in favor of the attorney. See id. § 106.002(a). For
the purposes of this opinion, it is presumed for the sake of argument that section
106.002(b) applies to judgments for attorney‘s fees in favor of either a party or an
attorney. Under this statute, the trial court has the authority to enforce a judgment for
attorney‘s fees by any means available for the enforcement of a judgment for debt, but
the trial court is not required to use these means of enforcement. See id. § 106.002(b);
Iliff, 339 S.W.3d at 81. The courts in the Moers line of cases and our dissenting
colleagues rely upon section 106.002(b) for the proposition that judgments for attorney‘s
fees under the Family Code are debts rather than child support unless a provision of the
Family Code states otherwise. See In re Moers, 104 S.W.3d at 612. Under section
8
If a trial court finds attorney‘s fees for enforcement of an order for possession of or access to a child to
be necessaries for the benefit of the child and awards them as additional child support, it may be that
section 157.167(b) would prohibit the trial court from enforcing this order by means of income
withholding. In any event, this issue is not before the court today.
17
106.002(b), the Legislature simply permits judgments for attorney‘s fees to be enforced
by the means available for enforcing a judgment for debt; the statute does not state that
such a judgment is a judgment based upon a debt. See Tex. Fam. Code Ann. §
106.002(b). Indeed, one of the remedies that the Legislature has provided for unpaid
child support is rendition of a money judgment for child-support arrearages, which
judgment ―may be enforced by any means available for the enforcement of a judgment
for debts.‖ See id. § 157.264(a) (West Supp. 2010). Just as the enforcement remedies
provided in section 157.264(a) do not make past-due child support a debt, the provision
of the same remedies in section 106.002(b) does not mean an order that a party pay
attorney‘s fees must be a debt and cannot be child support under the necessaries rule. See
id. §§ 106.002(b), 157.264(a). Nothing in the language of section 106.002 reflects any
intent by the Legislature to limit the circumstances under which trial courts may find that
attorney‘s fees are necessaries for the benefit of the children under other statutes (such as
sections 151.001, 154.001(a), and 156.401). See id. § 106.002.
In pertinent part, section 158.0051 reads as follows:
(a) In addition to an order for income to be withheld for child support,
including child support and child support arrearages, the court may render
an order that income be withheld from the disposable earnings of the
obligor to be applied towards the satisfaction of any ordered attorney‘s fees
and costs resulting from an action to enforce child support under this title.
Tex. Fam. Code Ann. § 158.0051 (West 2008). Under section 158.0051(a), in addition to
rendering an order for income to be withheld for child support, the trial court may render
an order that income be withheld from the disposable earnings of the obligor to be
applied towards the satisfaction of any attorney‘s fees and costs that an obligor was
ordered to pay in an action to enforce child support, but the trial court is not required to
order income withholding as to these enforcement fees. See id.; Iliff, 339 S.W.3d at 81.
Nothing in the language of section 158.0051(a) reflects any intent by the Legislature to
limit the circumstances under which a trial court may find that a parent should pay
18
attorney‘s fees as additional child support because these fees are necessaries for the
benefit of the parent‘s children under other statutes, such as sections 151.001, 154.001(a),
and 156.401. Indeed, section 158.0051(a) expressly refers to the trial court‘s authority to
order income withholding for child support. See Tex. Fam. Code Ann. § 158.0051(a).
Our dissenting colleagues discuss section 158.0051(a) without mentioning this part of the
statute. See post at pp. 4–5. They suggest that this statute indicates that a trial court
cannot order a parent to pay attorney‘s fees in a non-enforcement modification suit as
additional child support. See id. This construction conflicts with statutes permitting a
trial court in a non-enforcement modification suit to order a parent to pay reasonable
attorney‘s fees as child support based upon the parent‘s duty to pay for the children‘s
necessaries. See Tex. Fam. Code Ann. §§ 151.001, 154.001, 155.003, 156.401. This
construction also conflicts with the statute allowing a trial court in a non-enforcement
modification suit to determine that reasonable attorney‘s fees awarded to an amicus
attorney, attorney ad litem, or guardian ad litem are necessaries for the benefit of the
child. See Tex. Fam. Code Ann. § 107.023(d).
The parties have not cited and research has not revealed any part of the Family
Code in which the Legislature prohibits trial courts from finding that attorney‘s fees are
necessaries for the benefit of the children under statutes such as sections 151.001,
154.001(a), and 156.401. The courts in the Moers line of cases do not address sections
151.001, 154.001(a), or 156.401(a), and these courts base their analysis upon the false
premise that the Legislature restricted the taxation of fees as child support to the
enforcement context.9 See In re M.A.F., 2010 WL 2178541, at *9; In re A.S.Z., 2008 WL
3540251, at *1; Naguib, 183 S.W.3d at 547–48; Finley, 154 S.W.3d at 199; In re J.C.K.,
143 S.W.3d at 143; In re Moers, 104 S.W.3d at 611–12. See id. By urging the adoption
of this analysis of sections 106.002, 157.167, and 158.0051, Ross is effectively asking
this court to supplant the policy choice of the people‘s elected representatives in favor of
a more restrictive rule. The role of the court is to apply the statute as written. See Iliff,
9
None of the cases cited by our dissenting colleagues address these statutes. See post at p. 15.
19
339 S.W.3d at 79. Any policy changes regarding the Family Code should come from the
Capitol, not the courthouse. See id.
In enacting the Family Code, the Legislature did not impose the restriction that the
courts in the Moers line of cases have adopted; instead, the Texas Legislature placed
broad discretion in the courts of continuing jurisdiction to order a parent to pay attorney‘s
fees as child support in appropriate cases, whether in the enforcement context or not. See
Tex. Fam. Code Ann. §§ 151.001, 154.001(a), 156.401. There is no sound reason to
overrule Hardin and In re J.A.D.10 and to replace them with a rule that is not congruent
with the statutory scheme or grounded in the statutory text. See In re J.A.D., 2010 WL
2649961, at *1–4; Hardin, 161 S.W.3d at 25–26.
4. Caution in the trial court’s exercise of its contempt power is not
relevant to the determination of whether the trial court has the
authority to order the children’s father to pay attorney’s fees as
additional child support.
The Moers court reasoned that ―a trial court should exercise its contempt power
with caution‖ and that ―because of this widely accepted principle, we have sought to limit
any extension of the ‗duty to support‘ to services and costs required for enforcing child
support.‖ In re Moers, 104 S.W.3d at 612. Our dissenting colleagues employ similar
reasoning. See post at p. 7. In Moers, the trial court had not exercised its contempt
power, and the trial court in the case under review has not exercised this power to enforce
its order that Ross pay the attorney‘s fees at issue in this appeal. See id. at 611–12.
Therefore, the principle that the trial court should exercise its contempt power with
caution was not relevant in Moers and is not relevant in the case under review. The
10
Our dissenting colleagues conclude that In re J.A.D. is not on point. But in In re J.A.D., this court
concluded as follows:
We cannot say the trial court acted arbitrarily or unreasonably or disregarded guiding
rules and principles in ordering [father] to pay [mother‘s] attorney‘s fees as child support.
Each of the issues raised by [father] and [mother] were directly related to J.A.D.‘s
welfare and best interests, thus making [mother‘s] attorney‘s fees ―necessaries‖ for
J.A.D.‘s support. This allowed the trial court to assess [mother‘s] attorney‘s fees as
‗necessaries‘ against [father].
In re J.A.D., 2010 WL 2649961, at *4 (citations omitted).
20
unambiguous language of the relevant statutes gives the trial court the authority to order
Ross to pay attorney‘s fees as additional child support in the context of a non-
enforcement modification suit. See Tex. Fam. Code Ann. §§ 151.001, 154.001(a),
156.401. This authority is not affected one iota by the principle that trial courts should
exercise their contempt power with caution. A trial court may exercise its authority to
order a parent to pay attorney‘s fees as child support under the rule of necessaries, and if
the obligor fails to pay this child support, then the trial court should exercise caution in
deciding whether to hold the obligor in contempt or to use other means of enforcement.
The Supreme Court of Texas has stated clearly and consistently that holding a parent in
contempt for failure to pay child support ordered by the trial court does not violate the
constitutional prohibition against imprisonment for failure to pay a debt. 11 See Tex.
Const. art. I, section 18; Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993); Ex parte
Birkhead, 95 S.W.2d 953, 954–56 (Tex. 1936). Rather than proceed ―with caution,‖
courts should readily give effect to the unambiguous language of the applicable statutes.
See Iliff, 339 S.W.3d at 79.
5. Section 107.023 provides an additional basis for the trial court’s
authority to order payment of reasonable attorney’s fees to the
amicus attorney as additional child support.
Ross argues that the trial court lacked authority to order him to pay one-half of the
amicus attorney‘s reasonable fees as additional child support. In addition to the Family
Code provisions discussed above, another statute supports the trial court‘s authority to
order Ross to pay these fees as child support. Section 107.023, entitled ―Fees in Suits
Other Than by Governmental Entity,‖ provides in pertinent part as follows:
(a) In a suit other than a suit filed by a governmental entity requesting
termination of the parent-child relationship or appointment of the entity as
conservator of the child . . . the following persons are entitled to reasonable
fees and expenses in an amount set by the court and ordered to be paid by
one or more parties to the suit:
11
Ross has not asserted that any statute relating to this case is unconstitutional.
21
(1) an attorney appointed as an amicus attorney . . . .
...
(d) The court may determine that fees awarded under this subchapter to an
amicus attorney, an attorney ad litem for the child, or a guardian ad litem
for the child are necessaries for the benefit of the child.
Tex. Fam. Code Ann. § 107.023 (West Supp. 2010). Under the unambiguous language of
this statute, the trial court had authority to determine that the amicus attorney‘s
reasonable fees were necessaries for the children‘s benefit and to order Ross to pay the
amicus attorney one-half of the amount of these fees as additional child support. See id. §
107.023(d). According to the dissenting justices, in section 107.023(d), the Texas
Legislature provides only that a trial court may determine that fees awarded to an amicus
attorney, attorney ad litem, or guardian ad litem are necessaries for the benefit of the
child, and this determination does not mean that the attorney‘s fees are part of the
parent‘s support obligation. See post at p. 9–10. But the Texas Legislature has stated in
the Family Code that a parent‘s duty to support minor children includes a duty to provide
them with necessaries. See Tex. Fam. Code Ann. § 151.001(c). In addition, the Supreme
Court of Texas and this court have concluded that a parent‘s duty of support includes a
duty to pay for the necessaries of the parent‘s children. See In re H.V., 252 S.W.3d at
327, n.55; In re W.J.S., 35 S.W.3d at 277–278. Under section 151.001(c) and this court‘s
opinion in Hardin, a trial court‘s finding that attorney‘s fees are necessaries for the
benefit of the child supports a trial court‘s order that a parent pay these fees as additional
child support.12 See Tex. Fam. Code Ann. § 151.001(c); Hardin, 161 S.W.3d at 24–27;
see also In re J.A.D., 2010 WL 2649961, at *4 (holding that trial court properly assessed
―[mother‘s] attorney‘s fees as ‗necessaries‘ against [father]‖ in case in which trial court
ordered father to pay mother‘s attorney‘s fees as ―child support‖ but did not state that the
12
In the case under review, the trial court found that the fees incurred by Lizabeth and the amicus
attorney are necessaries for the benefit of the children, and the trial court ordered Ross to pay Lizabeth‘s
fees and half of the amicus attorney‘s fees as additional child support.
22
fees were ―necessaries‖). The only reasonable construction of section 107.023(d) is that
a trial court has discretion to find that attorney‘s fees awarded to an amicus attorney,
attorney ad litem, or guardian ad litem are necessaries for the benefit of the child that
may be awarded as additional child support.
6. The Daggett opinion does not address the statutes at issue in this appeal.
The In re Moers court and our dissenting colleagues rely upon this court‘s opinion
in Roosth v. Daggett, 869 S.W.2d 634 (Tex. App.—Houston [14th Dist.] 1994, orig.
proceeding). In Daggett, this court conditionally granted a writ of mandamus directing
the trial court to vacate its show cause order for violation of a turnover order, holding
that, because the relator had appealed from the turnover order, the trial court lacked
contempt jurisdiction over the relator regarding alleged violations of the turnover order.
See id. at 637. The Daggett court addressed issues relating to an appeal from a turnover
order and the enforcement of that turnover order. See id. at 635–37. The Daggett court
applied a rule of law regarding contempt jurisdiction that has since been abrogated by the
Supreme Court of Texas. See id. at 637 (applying Schultz v. Fifth Judicial District Court
of Appeals at Dallas, 810 S.W.2d 738, 740–41 (Tex. 1991), abrogated by In re
Sheshtawy, 154 S.W.3d 114, 123–25 (Tex. 2004)). When this court issued the Daggett
opinion, the Family Code did not contain the language in the second sentence of section
157.167(a) or the language in section 157.167(b) or any similar language. See Act of
July 29, 1987, 70th Leg., 2d C.S., ch. 73, § 7, 1987 Tex. Gen. Laws 225, 229, repealed by
Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282. We
conclude that the Daggett opinion is not on point.
In any event, the Daggett court‘s discussion regarding attorney‘s fees does not
necessarily conflict with this court‘s opinion in Hardin. The Daggett court stated that (1)
not all attorney‘s fees awards are treated the same way; (2) attorney‘s fees may be
assessed as ―necessities‖13 under [predecessor of section 106.002] for enforcement of a
13
Some courts use the term ―necessities‖ instead of ―necessaries.‖
23
child-support order; (3) such an award is incurred as child support and is enforceable
through contempt; (4) attorney‘s fees also may be awarded for other services in suits
affecting the parent-child relationship; and (5) attorney‘s fees ―other than necessities for a
child‘s support‖ are a debt and are not enforceable by contempt. See Daggett, 869
S.W.2d at 636–37. The Daggett court did not address attorney‘s fees in a non-
enforcement modification suit, and the court did not state that attorney‘s fees in
enforcement actions were the only fees that could be ―necessities.‖ See id. Indeed, the
Hardin court cited the Daggett opinion. See Hardin, 161 S.W.3d at 26. The Daggett
court did not discuss sections 151.001, 154.001, 156.401, or their statutory predecessors.
See Daggett, 869 S.W.2d at 636–37. The Daggett court did not address whether a trial
court in a non-enforcement modification suit may order a parent to pay reasonable
attorney‘s fees as child support based upon a finding that these fees are necessaries for
the children. See id. Contrary to the dissent, the Daggett opinion does not undermine our
analysis.
7. This court’s Hardin precedent stands.
For the reasons stated above, we conclude that, in the Family Code, the Texas
Legislature gives the trial court in a non-enforcement modification suit jurisdiction and
authority to order a parent to pay reasonable attorney‘s fees for legal services benefitting
the children as additional child support under the necessaries rule. The trial court may
order such fees paid to the other parent, an amicus attorney, attorney ad litem, or guardian
ad litem. We uphold the conclusion reached in Hardin and In re J.A.D. See In re J.A.D.,
2010 WL 2649961, at *1–4; Hardin, 161 S.W.3d at 24–27. To the extent portions of the
opinions in McCloskey and In re D.C.M. are contrary, we disapprove of these portions.
See McCloskey, 2009 WL 3335868, at *2; In re D.C.M., 2008 WL 4146785, at *10.
24
B. Is the evidence sufficient to prove that the fees incurred by the children’s
mother were reasonable fees for legal services benefitting the children?
Under his first issue, Ross also asserts that the trial court abused its discretion by
ordering Ross to pay Lizabeth‘s attorney‘s fees as additional child support because (1)
Lizabeth did not request this relief in her pleadings; (2) the trial court provided that
postjudgment interest would accrue on its judgment at an incorrect interest rate; and (3)
the evidence is insufficient to show that these fees are necessaries for the children and are
reasonable.
As to the first two complaints, Ross did not raise them in the trial court, and
therefore he failed to preserve error. See Halla v. Halla, No. 14-06-01126-CV, 2007 WL
2367600, at *3 (Tex. App.—Houston [14th Dist.] Aug. 21, 2007, no pet.) (failure to
preserve error regarding lack-of-pleadings argument) (mem. op); Wohlfahrt v. Holloway,
172 S.W.3d 630, 639–40 (Tex. App.—Houston [14th Dist.] 2005, pet. denied) (failure to
preserve error regarding postjudgment-interest-rate argument); Hardin, 161 S.W.3d at
23(failure to preserve error regarding lack-of-pleadings argument).
As to the third assertion, Ross initiated the suit, seeking to change the children‘s
primary residence, and Lizabeth counter-petitioned seeking an increase in Ross‘s
monthly child-support obligation. The trial court found that it was in the best interests of
the children not to give Ross the exclusive right to designate the children‘s primary
residence, and the trial court increased Ross‘s monthly child-support obligation from
$1,800 to $2,200. Lizabeth submitted evidence showing that she incurred $82,375 in fees
for legal services rendered in opposing Ross‘s modification petition and asserting her
counter-petition. The evidence supports a finding that the fees incurred by Lizabeth were
for legal services benefitting the children. But, to order a parent to pay attorney‘s fees as
necessaries, there also must be evidence that the fees are reasonable. See Hardin, 161
S.W.3d at 24. Though Lizabeth introduced invoices showing the attorney‘s fees she
incurred, the work performed, the hours billed, and the billing rates, the record contains
no testimony as to whether the fees are reasonable. The evidence is insufficient to
25
support the trial court‘s finding that the $82,375 in attorney‘s fees are reasonable and, for
this reason, the trial court abused its discretion in ordering Ross to pay these fees. See id.
We sustain Ross‘s first issue to this extent.
C. Do the father’s other complaints regarding the amicus attorney’s fees have
merit?
Under his first issue, Ross also asserts that the trial court abused its discretion by
ordering him to pay half of the amicus attorney‘s fees as additional child support because
(1) the amicus attorney did not request this relief in her pleadings until an amended
pleading filed during trial, without leave of court; (2) the trial court provided that
postjudgment interest would accrue on its judgment at an incorrect interest rate; and (3)
the amicus attorney produced no evidence that her fees were necessaries for the benefit of
the children.
As to the first two complaints, because Ross did not raise them in the trial court,
he failed to preserve any error. See Halla, 2007 WL 2367600, at *3; Wohlfahrt, 172
S.W.3d at 639–40; Hardin, 161 S.W.3d at 23. As to the third assertion, Ross has not
provided any argument, analysis, or citations to show that the amicus attorney presented
no evidence that her fees were necessaries and how this would constitute error by the trial
court. Even construing Ross‘s appellate brief liberally, we cannot conclude that he has
briefed these issues adequately. See Tex. R. App. P. 38.1(i); Pitsenbarger v. Cytec
Indus., Inc., No. 14-10-00474-CV, 2011 WL 1312274, at *3 (Tex. App.—Houston [14th
Dist.] Apr. 7, 2011, no pet.) (mem. op.); San Saba Energy, L.P. v. Crawford, 171 S.W.3d
323, 337 (Tex. App.— Houston [14th Dist.] 2005, no pet.). Based upon this inadequate
briefing, Ross has waived review of his third complaint. See Pitsenbarger, 2011 WL
1312274, at *3; San Saba Energy, L.P., 171 S.W.3d at 337.
26
D. Did the father preserve error in the trial court regarding the arguments he
asserts in support of his contention that the trial court erred in denying the
relief requested in his modification petition?
In his second issue, Ross asserts that the trial court abused its discretion by
denying the relief Ross sought in his modification petition. Under this issue, Ross asserts
that (1) the trial court erred by allowing witnesses to be taken out of order during the
bench trial and by taking long breaks during the bench trial, denying Ross a fair trial and
resulting in an erroneous ruling; (2) the trial judge failed to pay attention during the
bench trial, and did not hear or understand the evidence, denying Ross a fair trial and
resulting in an erroneous ruling; and (3) the trial judge erred by conducting his own
investigation into the facts when he asked his clerk to obtain information about a petition
to enforce a child-support order that Ross‘s trial lawyer had filed in a different court
against Trenton Thomas, Lizabeth‘s current husband, on behalf of Trenton‘s ex-wife.
Before this court can reverse the trial court‘s judgment based upon these
complaints, Ross must have presented these complaints to the trial court and obtained an
adverse ruling. See Tex. R. App. P. 33.1(a); Kupersmith v. Weitz, No. 14-05-00167-CV,
2006 WL 3407832, at *3 (Tex. App.—Houston [14th Dist.] Nov. 28, 2006, no pet.)
(mem. op.). A review of the appellate record shows that Ross did not voice any of these
complaints in the trial court or obtain rulings from the trial court. Ross has not asserted
that any of these alleged errors would constitute fundamental error, nor has Ross cited
any case addressing this issue. The Supreme Court of Texas has concluded that, in the
context of civil appeals, fundamental error is a narrow doctrine. See In re B.L.D., 113
S.W.3d 340, 350B52 (Tex. 2003). None of the alleged errors fall within the narrow scope
of the fundamental-error doctrine recognized by the Supreme Court of Texas. See id.
Therefore, fundamental error does not apply to these complaints. See id. We conclude
27
Ross failed to preserve error as to these complaints.14 See Kupersmith, 2006 WL
3407832, at *3.
Under the second issue, Ross also asserts that the trial court erred by making
various comments during the bench trial that allegedly showed the trial court‘s purported
bias or prejudice in favor of Lizabeth and against Ross or his attorney. As to these
comments, Ross was required to preserve error in the trial court by objecting when the
trial court made the comments.15 See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241
(Tex. 2001) (per curiam); Elloway v. Pate, 238 S.W.3d 882, 900 (Tex. App.—Houston
[14th Dist.] 2007, no pet.). Ross did not object to any of the allegedly improper
comments when the trial court made them.16 Therefore, Ross has waived this complaint
by failing to preserve error in the trial court. See Francis, 46 S.W.3d at 241; Elloway,
238 S.W.3d at 900.
We overrule the second issue.
V. CONCLUSION
Under the unambiguous language of the applicable statutes, in a non-enforcement
modification suit the court of continuing jurisdiction has the jurisdiction and authority to
order a parent to pay reasonable attorney‘s fees for legal services benefitting the children
as additional child support, based upon the parent‘s duty to pay for the children‘s
necessaries. The trial court may order such fees paid to the other parent or to a third
party, such as an amicus attorney. The reasons stated in Moers and the cases following it
for reaching the opposite conclusion conflict with the plain meaning of the applicable
14
Ross has cited no case holding that a trial judge reversibly erred by failing to pay attention during a
bench trial or by failing to hear or understand evidence during a bench trial. We express no opinion
regarding this legal theory.
15
A complaining party need not object in the trial court if any harm from the comment could not have
been cured by proper instructions from the judge to the jury. See Francis, 46 S.W.3d at 241; Elloway,
238 S.W.3d at 900. Because the case under review involved a bench trial, this exception does not apply.
Ross does not argue otherwise.
16
Though not required to preserve error, we note that Ross did not file a motion to recuse the trial judge.
28
statutes. Accordingly, we uphold the conclusion reached in Hardin and In re J.A.D. See
In re J.A.D., 2010 WL 2649961, at *1–4; Hardin, 161 S.W.3d at 24–27. To the extent
other opinions of this court conflict with the analysis in this opinion, we disapprove them.
The evidence supports a finding that the fees incurred by Lizabeth were for legal
services benefitting the children. But the evidence is insufficient to support the trial
court‘s finding that the attorney‘s fees that the trial court ordered Ross to pay are
reasonable. Accordingly, the trial court abused its discretion in ordering Ross to pay
these fees, and to this extent, we reverse the trial court‘s order and remand for a
determination of the amount of reasonable attorney‘s fees incurred by Lizabeth for legal
services benefitting the children. Because Ross has failed to preserve error or
inadequately briefed the remaining complaints in his appellate brief, we overrule these
challenges. The remainder of the trial court‘s order is affirmed.
/s/ Kem Thompson Frost
Justice
The en banc court consists of Chief Justice Hedges and Justices Frost, Seymore, Brown,
Boyce, Christopher, Jamison, and McCally. Justice Anderson is not participating.
Justices Seymore, Brown, Boyce, and Jamison join the En Banc Majority Opinion
authored by Justice Frost. Justice Frost issues a separate En Banc Concurring Opinion in
which Justices Seymore and Brown join. Justice Jamison issues an En Banc Concurring
Opinion. Justice Christopher issues an En Banc Dissenting Opinion in which Chief
Justice Hedges and Justice McCally join.
29