Rosscer Craig Tucker, II v. Lizabeth Thomas, 405 S.W.3d 694

Tucker and Thomas were divorced in 2005 with joint managing conservatorship; primary residence designated to Elizabeth, Ross had possession rights.
In 2008, Ross petitioned for modification seeking joint managing conservatorship and geographic restriction; Elizabeth counter-petitioned for sole conservatorship and increased child support.
At trial, an amicus attorney was appointed; final order increased Ross's child support and ordered payment of certain fees as additional child support.
The trial court found amicus fees ($9,137.50) and Elizabeth’s fees ($82,375) were necessaries; ordered Ross to pay half of each as additional child support.
Ross challenged the order; trial court denied new trial; issue focused on whether fees could be taxed as child support under non-enforcement modification.
En banc court held that in non-enforcement modification, trial court may order reasonable attorney’s fees as additional child support if fees are necessaries; but evidence on Elizabeth’s fees was insufficient to prove reasonableness, so remanded for a determination of reasonable fees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Authority to tax fees as child support in non-enforcement modification	Ross contends no authority in non-enforcement modification to tax attorney’s fees as child support.	Thomas (and court) rely on Family Code provisions granting jurisdiction to order fees as necessaries under modification.	Yes; trial court has authority to order fees as additional child support in non-enforcement modification.
Reasonableness of Elizabeth's fees	Ross argues the $82,375 fees were not proven reasonable.	Elizabeth presented invoices, hours, and rates; court could find fees were necessaries and reasonable.	Evidence insufficient to prove reasonableness; award reversed and remanded for determination of reasonable fees.
Amicus fees as necessaries	Ross challenges amicus fee award as improper.	Statutory provisions authorize amicus fees as necessaries; may be ordered as additional child support.	Authority exists to order amicus fees as necessaries; upheld.

Hardin v. Hardin, 161 S.W.3d 14 (Tex. App.—Houston [14th Dist.] 2004) (holds that trial courts may order attorney’s fees as child support in non-enforcement modifications under necessaries rule (cited as controlling by majority))
In re H.V., 252 S.W.3d 319 (Tex. 2008) (parental duty to support includes payment of necessaries, including attorney’s fees for child benefit)
In re W.J.S., 35 S.W.3d 274 (Tex. App.—Houston [14th Dist.] 2000) (confirms necessaries concept under parental duty to support)
Roosth v. Roosth, 889 S.W.2d 445 (Tex. App.—Houston [14th Dist.] 1994) (distinguishes enforcement vs. other suits in fees context)
In re A.J.L., 108 S.W.3d 414 (Tex. App.—Houston [14th Dist.] 2003) (discusses necessaries and fees in modification context)
In re Moers, 104 S.W.3d 609 (Tex. App.—Houston [1st Dist.] 2003) (Moers line holds lack of authority to tax fees as child support in non-enforcement modifications)
In re J.A.D., 2010 WL 2649961 (Tex. App.—Houston [14th Dist.] 2010) (mem. op. addressing fees as necessaries; not a stand-alone point about non-enforcement context (not an official reporter citation))
In re A.S.Z., No. 2-07-259-CV, 2008 WL 3540251 (Tex. App.—Fort Worth 2008) (holds attorney’s fees generally not taxed as child support in modification suits)
Ex parte Hall, 854 S.W.2d 656 (Tex. 1993) (constitutional protection against imprisonment for debt; contextual relevance to contempt in sanctions)