365 S.W.3d 718
Tex. App.2012Background
- Divorce between Slanker and Christine was finalized in 2010; remand directed a new trial on property division.
- On remand, Lamar County trial court ordered Slanker to pay $5,000 to an expert (Mosher) to value the business, within 10 days.
- Slanker challenged the order as not supported by any testimony or evidence.
- Texas family law context allows expert fees under certain circumstances; general rule is expert costs are not recoverable as ordinary costs.
- This is a mandamus proceeding seeking to strike the expert-fee order; the court treats the order as a temporary provision not subject to interlocutory appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the expert fee order was supported by evidence | Slanker: no evidence supports the fee | Slanker (as movant) impliedly argues necessity/evidence exists | Abuse of discretion; lack of evidentiary support |
| Whether expert-witness fees are recoverable in post-divorce property division | Fees should be recoverable as property division costs | Fees are generally not recoverable as costs in litigation | Not recoverable as ordinary costs; limited discretionary authority exists under family code |
| Whether mandamus is proper to challenge temporary orders | Mandamus is appropriate to challenge temporary orders | Interlocutory appeals are typically unavailable for such orders | Mandamus appropriate to strike the erroneous order if relief not otherwise available |
| Whether the court could order payment from community property in Slanker’s sole possession | Fees could be paid from community property | No clear basis to require sole-party payment | Order lacked evidentiary support and equitable basis; strike required |
| Whether the court should strike the fee order | Strike due to lack of evidence and improper allocation | Maintain order if supported by evidence | Conditionally granted mandamus; strike if trial court does not strike within 10 days |
Key Cases Cited
- Diaz v. Diaz, 350 S.W.3d 251 (Tex.App.-San Antonio 2011) (expert fees in divorce context; specific rules vary by context)
- Farley v. Farley, 930 S.W.2d 208 (Tex.App.-Eastland 1996) (trial court may award expert fees with sufficient evidence)
- Richards v. Mena, 907 S.W.2d 566 (Tex. App.-Corpus Christi 1995) (expert costs are incidental and generally not taxable costs)
- King v. Acker, 725 S.W.2d 750 (Tex.App.-Houston [1st Dist.] 1987) (handwriting experts not recoverable as costs)
- In re McAllen Med. Ctr., Inc., 275 S.W.3d 458 (Tex. 2008) (mandamus relief and standards for trial court discretion)