in the Interest Of: M.A.M., a Child
05-14-00040-CV
| Tex. App. | Oct 8, 2015Background
- Father (appellant) appealed the trial court’s March 25, 2014 modification order and an earlier March 12, 2014 order dismissing his affirmative claims after he failed to pay attorney’s fees awarded to Mother.
- Mother obtained a May 2012 ruling awarding her over $13,000 in attorney’s fees against Father and the trial court characterized those fees as costs under Texas Rule of Civil Procedure 143; Father did not pay within 20 days.
- Mother moved to dismiss Father’s pleadings under rule 143 for failing to give security for costs; the trial court granted the motion and dismissed Father’s claims without prejudice.
- Father also challenged an October 30, 2012 order sealing the record; he claimed he did not receive notice until late 2013.
- On appeal the court addressed whether attorney’s fees awarded under Texas Family Code §106.002 are “costs” for purposes of rule 143, and whether sealing the record was an abuse of discretion.
Issues
| Issue | Mother’s Argument | Father’s Argument | Held |
|---|---|---|---|
| Whether attorney’s fees awarded under Fam. Code §106.002 may be taxed as “costs” and enforced under Tex. R. Civ. P. 143 | Fees were properly taxed as costs and Father’s failure to pay justified dismissal under rule 143 | Fees awarded under §106.002 are not “costs” for rule 143; thus dismissal under rule 143 was improper | The court held §106.002 fees are not costs; taxing them as costs and dismissing under rule 143 was an abuse of discretion (reversed) |
| Whether the trial court abused discretion by striking Father’s pleadings for failure to give security for costs | Dismissal under rule 143 was authorized after Father failed to pay the fee award | Striking pleadings was improper because the award was not a cost subject to rule 143 | Court reversed the dismissal and found the striking of pleadings improper |
| Whether the trial court abused its discretion by sealing the record | (Mother argued sealing permissible under family-code-related confidentiality) | Father argued he lacked notice and sealing was improper | Court affirmed: on this record Father failed to show the sealing was an abuse of discretion |
| Whether other appellate issues (e.g., change in circumstances, discovery, child-support resources) required resolution | Mother’s modification was proper | Father raised multiple challenges to modification and procedures | Court declined to address remaining issues as unnecessary to disposition |
Key Cases Cited
- Johnson v. Universal Life & Accident Ins. Co., 127 Tex. 435, 94 S.W.2d 1145 (court’s historical treatment of "costs" excluding attorney’s fees)
- American Airlines, Inc. v. Swest, Inc., 707 S.W.2d 545 (Tex. 1986) ("costs" does not include attorney’s fees)
- In re Nalle Plastics Family Ltd. P’ship, 406 S.W.3d 168 (Tex. 2013) (legislature must say when fees are to be treated as costs)
- Tucker v. Thomas, 419 S.W.3d 292 (Tex. 2013) (§106.002 is the general fee provision for suits affecting parent-child relationship)