*1 II, TUCKER, Appellant, Craig Rosscer THOMAS, Appellee.
Lizabeth 14-09-01081-CV.
No. Texas, Appeals of
Court of (14th Dist.).
Houston
Dec. Jan.
Rehearing Overruled *3 attorney
incurred an amicus mother were for the necessaries children’s benefit, and ordered the father these fees as additional child To- day, the upholds en banc court this court’s conclusion Hardin Hardin and holds Code, under the Texas a non-enforcement modifica- jurisdiction tion suit has and authority to order a parent reasonable attor- fees, as additional *4 legal services benefitting the children. Thus, authority court had to order to pay attorney’s father fees incurred by the attorney amicus and the mother as additional child support. But because the evidence is insufficient to the trial court’s finding attorney’s that the mother’s reasonable, fees were we reverse the trial pay court’s order that the father the fees by incurred the mother and remand for Alyssa Daniel Jake Lemkuil and P. further proceedings. Finding merit in Lemkuil, Houston, Appellant. for challenges the father’s to the re- order Thomas, Mahoney, Lizabeth P. Walter garding the attorney’s amicus and Pasadena, Appellee. Jr. denial requested father’s modifica- tion, we affirm the remainder of the trial EN OPINION BANC court’s order. FROST,
KEM THOMPSON Justice. Background I. and Factual PROCEDURAL Does trial court have the to (“Ross”) Appellant order a to pay Craig fees as Rosscer Tuck- er, in a II appellee additional child non-enforce- and Lizabeth Thomas were decree, ment In modification suit? This issue has divorced in 2005. the divorce divided our state’s intermediate the trial court appointed courts Ross and Liza- court, appeals as well beth panels joint managing as of this and conservators of their key presented decree, it to three minor issue the en banc children. Under that today. right Lizabeth had the desig- exclusive residence, nate primary the children’s The father three filed children suit Ross the right possession had of the seeking modification of final ren- order possession children under standard or- in a affecting parent-child dered suit der. counter-sued, relationship, and the mother seeking also modification of order. December Ross filed an original The trial court relief requested petition parent-child denied the of the modification granted part relationship, the father seeking appointed the relief to be joint mother, requested by increasing managing conservator with the exclusive obligation. right designate father’s monthly child-support primary the children’s The trial court also sought geo- found certain fees residence. Ross also order new trial filed a motion for restricting pri- the children’s Ross
graphically court’s challenged he County, Texas. which to Harris mary residence to the amicus Ross seeking counter-petition, filed a Lizabeth additional attorney and to Lizabeth as conservator managing appointment sole The trial court denied this children, terms modification to and motion. Ross’s access conditions children, and an increase possession II. obligation. child-support monthly
in Ross’s Issues Presented rep- attorney appointed was An amicus issue, Ross In his first asserts that interests. resent the children’s its discretion award- trial court abused fees, ing by assessing the bench on Lizabeth tried to The case was and amicus fees On days period. over a ten-week eleven that, trial, by assessing compound post- if stated day Ross final on fees. his interest to increase month- the trial court were issue, Ross asserts that the and order him his second ly child-support obligation Lizabeth, by denying its discretion Ross trial court abused attorney’s fees in his requested the relief Ross modifica- bankruptcy court.” go “have to would *5 petition. the trial court to tion attorney asked Lizabeth’s attorney’s Lizabeth’s pay order that Ross III. The ami- support. additional child of Review Standard attorney requested Lizabeth cus also respective prevail To their to pay reasonable and Ross ordered Lizabeth, Ross each modification suits attorney amicus
attorney’s fees to the relief, party seeking had to show that child support. additional or a person circumstances of children order, materially and the trial court dis- affected the order had In its final requests. substantially changed the date of the parties’ modification since posed of the Ann. court denied divorce decree. See Tex. Fam.Code Among things, other trial D.S., 156.401(a)(1); in- re modification and In petition Ross’s for (Tex.App.-Houston Dist.] monthly child-support obli- 520 [14th creased Ross’s $2,200. $1,800 determining The trial no whether child gation pet.). from modified, attorney should be support court also amicus found fees, $9,137.50 to examine the circumstances of obliged had incurred reasonable, parents the time and that the children and of these fees are divorce decree and circumstances ex they the children’s ben- are necessaries isting that Ross time modifica efit. The trial court ordered D.S., attorney tion See In re S.W.3d at 520. pay the amicus suit. Lizabeth each Upon showing requisite changed of the one-half of amount of these fees as circumstances, alter The trial court additional child Tri expended child-support obligations. See id. also found that Lizabeth had al $82,375 fees as courts have broad discretion deter modify sup of child children’s benefit. The mine and amount necessaries parent must See id. We port pay. trial court ordered Ross ruling the trial court’s modification plus postjudgment interest to Li- review amount mak- the abuse-of-discretion standard. zabeth as additional under id. at 521. test abuse ing per month until payments $500 trial court acted in full. discretion is whether the paid amount owed is unreasonably, whether it arbitrarily parent or or one to pay the reasonable reference guiding acted without of the other as addi principles. rules or v. Worford tional if the neces (Tex.1990). Stamper, 801 saries children), for the benefit of the Under the abuse-of-discretion standard of vacated, withdrawn, judgm’t op. not No. review, challenges to sufficiency 14-03-00342-CV, at *1 independent grounds evidence are not (Tex.App.-Houston [14th Dist.] Feb. in assessing error but are relevant factors (mem. 2005, no pet.) op.). This court has whether the trial court abused its discre- See, precedent. followed Hardin e.g., T.J.L., tion. J.A.D., 14-08-00689-CV, No. Dist.] no [14th WL at *1-4 (Tex.App.-Houston pet.). An abuse discretion does not 6, 2010, [14th Jul. pet.) Dist.] (holding, occur when the record contains some evi- suit in dence of a modification which no probative substantial and char- enforce acter to ruling. trial court’s ordered, ment was that trial court did not Id. abuse ordering its discretion in father to sup mother’s fees as child Analysis
IV. rule) (mem. port under the “necessaries” But, op). by Ross, as noted in two opin A. In a non-enforcement modification ions this court followed In re Moers with suit, jurisdic- does trial court have out citing discussing payment prior tion and this court’s to order fees as additional precedent in Hardin. See McCloskey support? 14-06-00470-CV, McCloskey, No. *6 3335868, WL *2 (Tex.App.-Houston issue, argues Under his first Ross 2, 2009, denied) [14th Apr. pet. Dist.] in a modification suit in which the trial (mem. pay D.C.M., court does not order a party past- op.); In re No. 14-06- due child-support obligation,1 the trial (Tex. 00844-CV, 4146785, WL at *10 authority payment court has no to order 9, App.-Houston 2008, Sept. to a or amicus attor denied) (mem. op.). pet. On our own mo ney as additional child support. rea tion, we to hear decided this case en banc soning of First Appeals Court of in In opinions resolve the conflict among re Moers supports argument. Ross’s See this court whether court in as to a trial (Tex.App.-Houston 611-12 ju non-enforcement modification suit has 2003, no pet.). Though [1st he Dist.] relies authority payment risdiction and to order upon case, the In re Moers Ross acknowl of attorney’s sup additional child edges that this court to follow declined In 41.2(c). port. Tex.R.App. Compare See P. re contrary Moers and held to the in Har J.A.D., *1-4, 2010 WL din v. See 161 Hardin. 24-27 Hardin, 24-27, and 161 S.W.3d at with 2004) (hold (Tex.App.-Houston [14th Dist.] *2, McCloskey, WL ing in non-enforcement modification suit D.C.M., continuing jurisdiction court of may at *10. party 1. A grant can file a motion for enforcement in a motion for en- does suit. modification Fam.Code Ann. Tex. forcement as a "non-enforcement modifica- (West 157.003(a) 2008). § opinion, In this tion suit.” we refer to a modification suit in which the (1) jurisdiction or a the circumstances of had trial court authority order additional by have mate- person affected the order general. in changed rially substantially since the earlier of: trial court rendered
Because decree, has the trial court con the divorce rendition; (A) the date of the order’s over jurisdiction exclusive tinuing, or Family Title of the in matters addressed and Liza- with Ross Code in connection (B) signing a medi- date children, child-support is including beth’s law settlement ated collaborative §Ann. Tex. Fam.Code 155.001 sues. See agreement on which 2008) (West exceptions not (stating, with based.... review, that upon applicable to case under order, a trial court final rendition (West 156.401(a) Ann. Tex. Fam.Code jurisdiction acquires continuing, exclusive 2008). provision Lizabeth invoked Title 5 provided over the matters counter-petition an increase seeking her in connection with a Code child-support obligations, and Ross’s child). appeal, dispute Ross does On provision impliedly trial court found continuing, exclu that the trial court when Lizabeth’s counter- apply granted it jurisdiction. But Ross asserts that sive part, petition ordered increase authority to order the trial court lacked monthly obligation, child-support Ross’s as additional him to not have because courts do and ordered Ross to modi such in a non-enforcement id.; additional child Lemons fication suit. Co., v. Mfg. EMW the divorce decree (Tex.1988) curiam) that, (per (stating duty to regarding rendered orders Ross’s findings fact the trial the absence of As support his children. court, courts appellate presume jurisdiction, continuing, exclusive necessary to findings trial court made all modify jurisdiction court is vested with Randle, its Randle judgment); (1) regarding duty Ross’s decree (2) children, conservatorship support his writ) (concluding [1st Dist.] (3) issues, regarding possession issues *7 the impliedly trial court found that circum of See Tex. and access to the children. materially and (West stances of the child had Supp. § Ann. 155.003 Fam.Code 2010) (stating, exceptions not applica- substantially in which the changed in case review, “a ble to case under that court with of findings trial court not make did may jurisdiction exer- continuing, exclusive necessary finding sup fact and was to its jurisdiction modify cise to order its port judgment). unambigu the Under conservatorship, regarding pos- managing Code, language Family the trial ous of possession sessory conservatorship, of and jurisdiction authority had and child, support to the access to to ad modification suit order Ross child”). support. ditional child See Tex. Fam.Code exceptions applicable to the With 155.003, 156.401(a); §§ Tex. Ann. see also review, Legislature case under the Texas 154.001(a) (West 2008) §Ann. Fam.Code provided continuing, that a court with (stating may that “the court order either may modify its jurisdiction prior exclusive parents support both child order of providing support order....”). specified by the if: manner
701 jurisdiction Carter, Attorney 2. The trial had v. General authority payment order of attor- 159, 160-61 ney’s additional fees as 1998, pet.). no For more than a century, Texas have courts held that reasonable clear juris Given trial court’s attorney’s fees incurred for the benefit of a diction Ross to pay question additional child the next may minor constitute necessaries. See Se whether, is ain non-enforcement modifica Hunter, arcy 644, v. 81 Tex. 17 S.W. suit, tion trial court could determine (Tex.1891) 373 (stating that reasonable at duty his support Ross’s children torney’s fees for the benefit aof minor in duty to pay includes a reasonable attor civil prosecuting a suit to money recover benefitting services or property for the minor be neces unambiguous children. Under lan saries); Williams, 294, 11 Askey 74 Tex. guage Family prec Code and under (1889) S.W. (holding that Texas, Supreme edent from the Court fees for the benefit question “yes.” the answer to this of a defending minor in against the minor parent “A of a has ... necessaries). charge criminal were duty to Tex. child.” Fam. years Three ago, Supreme Court of 151.001(a) (West 2008). § Code Ann. Texas reaffirmed fees for Code, Legislature the Texas services rendered for a child’s benefit expressly parent states that “a who fails to constitute necessaries that within fall duty discharge the is liable to a duty of support owed par that child’s person who provides necessaries those H.V., ents. See In re n. to whom support owed.” Id. 151.001(c). provision, In this the Legis longstanding lature has codified common- duty
law principles. plain language Under the Ross’s to support his chil 151.001(c),2 of section duty as Ross’s a dren encompasses an obligation pro to support his minor children in necessaries, vide them with which may provide cludes a duty them with necess include reasonable for le id.; H.V., aries.3 See In re 252 S.W.3d gal benefitting services the children. See (Tex.2008) (concluding n. 55 151.001(a), (c); §§ Tex. Fam.Code Ann. parent’s duty duty includes a H.V., 55; S.W.3d at n. to pay for the parent’s the “necessaries” of 373; Searcy, Askey, S.W. S.W. children); W.J.S., Hardin, at 1101-02. In Hardin v. 277-278 (Tex.App.-Houston [14th Dist.] court cited section 154.001 did but (same H.V.). pet.) as In re This 156.401(a). cite section 151.001 or section duty changed by is not divorce Ross Hardin, S.W.3d at 24-27. None Lizabeth, person provides and “a who theless, the Hardin court noted 151.001(c) necessaries” under section can *8 duty attorney’s of a to parent pay fees as Lizabeth, include even she though is a upon necessaries is B.I.V., parent’s duty based parent of the children. See In re 573, (Tex.1996); 923 S.W.2d support 574-75 to children. id. his See at 25. Office stated, child, statutory “during 2. minority parent Unless otherwise all refer- of the opinion Family ences in this to the Texas are absolutely provide reasonably is bound to Code. education, [the maintenance and and child's] parent] may be sued [the for necessaries fur- part jurispru- This rule has been nished, child, schooling given and to a under early days dence in America since the of our circumstances”). just and reasonable country. 2 J. Kent, Commentaries On (3d 1827) (stating American Law 191 ed. that 2-04-265-CV, rule); A.J.J., No. addition, cited non- ies” the Hardin court 914493, at statutory (Tex.App.-Fort 2005 WL *5-6 cited the cases that enforcement (mem. 21, 2005, op.) Apr. pet.) id. at no 151.001. See Worth to section predecessor (holding Dan in non-enforcement modification v. Roosth and (citing Roosth 25-26 Roosth, jurisdiction Allen); continuing that court of v. suit Roosth iels v. ordering in 445, not abuse its discretion (Tex.App.-Houston did 456-57 denied) 1994, (holding father to reasonable pay writ Dist.] [14th incurred mother necessaries for the abuse its discre as trial court did not that Hardin, children); S.W.3d at 25-26 pay ordering in that father tion (holding in non-enforcement modification as for the ben fees mother necessaries to jurisdiction continuing that in divorce decree suit court efit of the children parent pay to reason statutory to section order one citing predecessor Allen, parent as 151.001); able fees of the other Daniels v. 811 S.W.2d writ) 1991, 278, no necessaries for benefit children (Tex.App.-Tyler thus v. support); trial did not abuse its as Stevens (holding that Stevens, 05-03-00249-CV, at WL ordering pay that father No. discretion in 21999900, (Tex.App.-Dallas Aug. *2-3 torney’s as necessaries at fees mother (mem. 25, 2003, pet.) op.) (stating paternity children in no the benefit suit citing statutory predeces non-enforcement modification proceeding 151.001). jurisdiction continuing not cited court of order Though sor to section attor opinions, parent pay there a sound one the reasonable in all of the ney’s parent in cases of the other as neces statutory holdings basis for the children, that the for the benefit of the but in which courts have determined saries that trial court abused its dis concluding trial court in a non-enforcement modifica concluding nec parent to order a cretion were tion suit has and circum pay fees as child essaries under facts review); rule.”4 of the case In re support under the “necessaries stances under A.J.L., 414, J.A.D., (Tex.App. See In re denied) pet. (stating suit in -Fort Worth (holding, *1-4 in modification ordered, suit which no enforcement was non-enforcement modification continuing jurisdiction may did not abuse its in court discretion parent one the reasonable attor ordering father mother’s neces under the “necessar fees of other review; (2) dissenting rely par- colleagues upon the ab- ble to the case under 4. Our any express of this authori- sence of statement duty ent’s minor children includes ty referring Chapter to this sometimes duty provide the children necessar- Chapter 156. See absence as “silence” 151.001, §§ ies. See id. 154.001. These sec- Though Legislature post pp. 720-21. actions, apply even tions in modification authority expressly could have stated this though they Chapter found disposi- Chapter its to do so not failure See, A.L.E., e.g„ Legislature stated in tive. The section (Tex.App.-Houston pet.) may modify a child- 156.401 that courts (applying section 153.001 to modification suit circumstances such as order under 156); Stanfield, Chapter under Stanfield 2005 presented in the case under review. those 01-05-00379-CV, WL No. Tex. Fam.Code Ann. 156.401. In other *2 Dist] Dec. [1st Code, Legislature chapters *9 2005, pet.) (applying to no section 154.001 (1) has that order a stated 156) (mem. Chapter modification suit under speci- parent in the a child manner order, exceptions applica- op.). fied with
703 2008, dism’d) saries for benefit of the children pet. and (concluding Dist.] that holding that trial court abused its discre trial courts have broad discretion craft ordering pay tion in that non-parent at ing the rights and duties of each conserva torney’s given as child support, that tor in effectuating the best interest of the no non-parent duty had for the child); K.R.P., 669, In re 80 S.W.3d 674 necessaries). statutory children’s ba (Tex.App.-Houston 2002, pet. [1st Dist.] holdings sis for a strong these reflects denied) (stating trial courts have wide legislative of policy arming court of discretion in determining the best interests continuing jurisdiction judicial with the family of a child in law matters such as parents tools to ensure held ac child support); Dade, Dade v. No. 01-05- countable in child for necessaries 00912-CV, (Tex. 1153053, WL 2007 at *1 furnished for the benefit of their children. App.-Houston 19, 2007, Apr. [1st Dist.] no pet.) (noting that Legislature Legislature The Texas has crafted a Texas comprehensive statutory upon scheme conferred the trial courts wide Family Though Legislature pro Code. discretion to enforce property divisions (mem. hibits trial taking decree) courts from various ac contained in a divorce op.); parts Code, Family Klise, tions different Klise v. 678 S.W.2d the Legislature language permis uses (Tex.App.-Houston [14th Dist.] no Family writ) sion in the Code much more fre (stating that each child-support case quently language than of prohibition. that, stands own on its facts and trial enacting governing rights laws courts have wide discretion in resolving responsibilities parents the protec issues). child-support big-picture This children, tion of the Legislature made a view is strong Legislature’s evidence of the policy choice to vest trial courts vast place choice to broad discretion the trial many and broad discretion over im power judge in family the resolution of law mat portant Family matters. The Code con ters. provisions tains numerous in which the we interpret today statutes do not Legislature grants judge wide contain which language expressly prohibits crafting latitude in orders to meet a trial ordering court from needs children and families. See Gilles fees for ser- (Tex. pie Gillespie, benefitting vices the children as additional 1982) (concluding gives Code Nor do these statutes ex- trial courts wide latitude in determining pressly authorize trial court to take this child); Quija best interests a minor action. hardly But the silence is an indica- (Tex. v. Quijano, tion Legislature that the intended forbid App.-Houston no pet.) [14th Dist.] award of child sup- fees as 7.001, that, (stating under section in a port non-enforcement modification courts have wide in making discretion contrary, suit. To light general just right division of the marital es tate); Smith, giving authority statutes trial court parents comply duty with their (Tex.App.-Houston orig. by paying their children’s nec- proceeding) (stating trial courts are essaries, statutory language vested with the absence of broad discretion in determin ing the limitations or family placing best interests of a child in restrictions on the visitation, law court’s custody, matters such as some indication that Swaab, possession); Legislature did Swaab v. not intend restrict authority. See Tex. Fam.Code Ann. [14th *10 704 154.001(a), Legislature has entrusted broad dis- 151.001, As Texas
§§ 156.401. dem- many family terms of sec- and when plain judge onstrated cretion to Code, Legis- Family in the when tions to limit or restrict Legislature seeks restrictions, it impose intends lature discretion, Legislature generally that clearly intention usually expresses this says regime, this silence does so. Under statutory language. concisely within permis- prohibition not but rather indicate See, 158.001(b) e.g., Tex. Fam.Code Ann. sion. (West 2008) that “a court not (stating review, case In the under the right conditions render an order that attorney’s fees Liza- determined that possession of of access a conservator attorney beth and amicus incurred sup- of child payment to a child on the fees are neces reasonable and that these of port”). anything, If the absence such of in the saries for benefit best in- Legislature suggests restrictions applica interests of the children. Under that in non-enforcement modifica- tended statutes, ble was clothed suits, the court is vested with the tion authority to jurisdiction authority to whether power and determine fees as addi Ross to these pay, a should be ordered parent See Tex. support.5 tional Fam.Code support, reasonable attor- additional child 154.001, 155.003, 151.001, §§ Ann. 156.401. benefitting services appeals five courts Though sister have statutory scheme of children. overall In re Har- Moers,6 court, in clear Code makes that followed 21705248, 24, (Tex.App.-Austin at Jul. permit a trial court order a *8 These statutes 2003, attorney's parent pet.) (holding or an amicus no fees for the other quantum-meruit attorney attorney’s fees as child claim be recovered un in a modification der Texas Civil Practice and Remedies Code non-enforcement expressly falls within Because these statutes do not section 38.001 because this claim suit. fees, general language, though attorney's dissenting statutory mention our col- even stat quantum- leagues permits specifically conclude that no statute such ute does refer claims) (mem. op.). Legislature post pp. at 718-21. But the meruit Our order. Legislature express provided parent’s child-support is free to itself Texas duty through general specific paying rather lan- includes for child’s necessaries. than 151.001(c). guage, meaning §Ann. and the a statute can be See Tex. Fam.Code implied express Legislature's expressly failure to state that from the statements attorney's Energy may include statutory Tex. Con- necessaries text. See Indus. for a does Energy services rendered child’s benefit sumers v. CenterPoint Houston Elec- tric, LLC, 95, (Tex.2010) concluding prevent from that such courts 324 105-07 S.W.3d scope general fees fall within the of this statu (holding request transferor's recover Energy tory language. Tex. Indus. Con paid scope fee it had was within the 105-07; sumers, Perry Perry 324 & general language allowing recovery statutory Builders, Inc., 21705248, WL 2003 *8. participating in pro- "reasonable costs ceeding,” though party even other was initial- See, M.A.F., 12-08-00231-CV, ly responsible paying fee and even e.g., In re No. 2178541, provide though specifically (Tex.App.-Tyler May statute did not at *9 allowed); 2010, 28, (mem. A.S.Z., recovery Sturgis was Air pet.) op.); that such no One, Dist., 2-07-259-CV, 3540251, County Appraisal L.L.C. v. Harris *1 No. WL 14-09-00891-CV, 14, 2008, Aug. (Tex.App.-Fort pet.) No. 351 S.W.3d 385- Worth no curiam) (mem. op.); (per Naguib Naguib, v. no pet.) (holding imposed (Tex.App.-Dallas Legislature Finley requirement implicitly, pet.); May, no v. rather than means stating pet.); statutory language expressly (Tex.App.-Austin no the re- Builders, J.C.K., quirement); Perry Perry (Tex.App.- & Inc. Galvan, 03-02-00091-CV, pet.). No. WL Waco
705
din,
determined,
have
the
weigh
results;
and other courts
effectiveness of their
correctly,
the trial court in a non-
rather, our
interpret
task is to
those stat-
suit
may
enforcement modification
order
utes in manner that
the Leg-
effectuates
”
pay
reasonable
fees as
Iliff,
islature’s intent.’
339
at 79
S.W.3d
support
upon
parent’s duty
based
the
Ramirez,
(quoting McIntyre v.
pay
for the children’s necessaries. See 741,
(Tex.2003)).
748
When statutory lan-
55;
H.V.,
In re
252
at
n.
is
guage
unambiguous
yields only
and
one
373;
Searcy,
Askey,
at
at
S.W.
S.W.
interpretation,
this court must
1101-02;
J.A.D.,
2010 WL
In
interpret
according
plain
statute
to its
A.J.J.,
*1-4;
at
In re
2005 WL
meaning. Id.
*5-6; Hardin,
25-26;
161 S.W.3d at
Ste
vens,
*2-3;
In re
157.167,
In pertinent part, section
enti-
A.J.L.,
421-22;
W.J.S.,
108 S.W.3d at
tled “Respondent
Pay Attorney’s
Fees
ing
construction,
withholding.
meaningless.
Under our
discretion to find that
(West
§ 157.167
Tex. Fam.Code Ann.
*12
fees
attorney’s
prosecuting
incurred
2008).
157.167(a), if the
section
Under
motion
necessaries for
for enforcement are
to a
respondent
that a
trial court finds
the benefit of the children and thus consti-
make
has failed to
motion for enforcement
part
child-support
the parent’s
tute
obli-
the trial court
child-support payments,
gation.
statutory language
the
mov-
Under
respondent
the
must order the
1999,
fees
court
added in
trial courts have
author-
attorney’s
and
ant’s reasonable
child-support arrearag-
ity
attorney’s
an award of
costs as well as the
enforce
requirement of
if they
es.
id. Without the
and
as
child support,
costs
were
and
are
any finding that these fees
costs
any
that the fees
costs
finding
without
and
for the benefit
child
or necessaries
actually
are necessaries or child
children, the
court has the
157.167(a).
of the
trial
§
See Tex.
Ann.
Fam.Code
by any
an
authority to enforce such
order
Giving
trial courts discretion
enforce
for the enforcement of
means available
they
attorney’s fees
if
were
awards as
the trial court is not
but
duplicative
is not
of discre-
required to use these means of enforce-
tion to
that
are
determine
id.;
at 81
Iliff,
ment. See
they
child support because
are necessaries
“may”
used in section
(holding that
for the benefit of the children.
authority or
gave
154.066
the trial court
157.167(b), if
Under section
the trial
Isaacs,
permission);
also
see
Isaacs
respondent
court finds
to motion
(Tex.App.-Houston [14th
comply
for
has failed
enforcement
filed)
various
pet.
(outlining
Dist.]
regarding possession
terms of
cumulative means available under
child,
of or
to a
access
trial court must
may
which a trial
Family
by
Code
court
respondent
order the
the movant’s
child-support
unpaid
enforce an
obli-
attorney’s fees
court
costs.
gation).
latter determination is within
157.167(b).
§
See id.
If the trial court
according
to the
trial court’s discretion
finds that the enforcement of the order
in a particular
facts
circumstances
necessary
was
question
to ensure the
Nothing
language
case.
of section
physical
child’s
or emotional health or wel-
157.167(a)
any
by
Legis-
reflects
intent
fare,
authority
then
has
lature to limit the circumstances under
by
to enforce this order of fees and costs
trial
which
courts
find
for
means available
the enforcement
for the benefit of the
are necessaries
statutes,
for
support except
children under other
such as sec-
income withhold-
151.001,154.001(a),
ing,
required
tions
and 156.401.
but the trial court
id.;
use
means
these
of enforcement. See
language
second sentence
(holding
“may”
forcement. See id.
Iliff,
In addition to
order
an
for income to
The courts in the
support,
Moers
be withheld for
including
child
157.167(b)
attorney's
If a trial court finds
en-
prohibit
fees for
would
the trial court from
possession
of an
forcement
order for
of or
enforcing
this order means of income with-
access
child
to be necessaries for the
event,
holding.
any
this issue
not before
benefit of the child and awards them as addi-
today.
the court
support, may
tional child
it
be that section
reason-
support
arrear-
cation suit
order
an
ages,
render
order
fees as child
based
able
the dispos-
that income be withheld from
upon
parent’s duty
ap-
to be
earnings
obligor
able
See Tex. Fam.
children’s necessaries.
155.003,
or-
plied
any
151.001, 154.001,
towards the satisfaction
§§
Ann.
Code
resulting
fees and costs
dered
also
156.401. This construction
conflicts
an action to enforce child
from
allowing
a trial court
statute
under
title.
modification suit to de-
non-enforcement
(West
termine that
§
Tex. Fam.Code Ann.
158.0051
attorney, attorney
amicus
2008).
158.0051(a),
awarded
an
Under section
addi-
litem,
ad
litem are neces-
guardian ad
rendering
order
income to
tion to
an
saries for the benefit of the child. See
withheld
107.023(d).
that income be with-
Ann.
render
Tex. Fam.Code
earnings
held
disposable
from
parties
have not cited and research
obligor
applied
to be
towards
satisfac-
part
has not revealed
any attorney’s
tion of
fees and costs that
*14
Legislature prohibits
Code in which the
was
to
in an
obligor
pay
ordered
action
that
finding
trial courts from
to
child
the trial
support,
enforce
but
court
the
fees are necessaries for the benefit of
not required
to order income withhold-
as
children under statutes such
sections
id.;
these
ing as to
enforcement fees. See
151.001, 154.001(a),
The
and 156.401.
Iliff,
Nothing
at 81.
courts in the Moers line of cases do not
158.0051(a)
language of section
reflects
151.001, 154.001(a), or
address
sections
by
Legislature
intent
the
to limit the cir-
156.401(a), and these courts base their
which a
cumstances under
trial court
upon the
the
analysis
premise
false
parent
pay attorney’s
And that a
should
fees
Legislature restricted the taxation of
support
additional child
because
as
as
to
con-
support
child
the enforcement
these
the
necessaries for
benefit
M.A.F.,
text.9 See In re
2010 WL
other
parent’s
the
children under
stat-
A.S.Z.,
*9;
at
re
In
utes,
151.001, 154.001(a),
as sections
such
*1; Naguib,
at
at
Indeed,
158.0051(a)
and 156.401.
section
547-48;
199;
at
Finley,
S.W.3d
expressly refers to the trial court’s author-
J.C.K.,
Moers,
143;
at
In
S.W.3d
re
ity to
withholding
order income
By urging
lature should exercise its line of cases have the courts in the Moers caution in was relevant Moers and is instead, Legislature the Texas adopted; in relevant the case under review. discretion the courts of broad placed unambiguous language of the relevant parent to order a continuing jurisdiction authority gives statutes the trial court the pay attorney’s fees as pay attorney’s order Ross to fees as cases, in the enforce- whether appropriate additional child the context of a context or not. Tex. Fam.Code ment non-enforcement modification suit. See 151.001, 154.001(a), §§ 156.401. Ann. 151.001, §§ Tex. Fam.Code Ann. is no reason overrule Har- There sound 154.001(a), authority 156.401. This is not replace and In J.A.D.10and to them din re affected one iota principle trial congruent with a rule that is not with the contempt pow courts should exercise their statutory grounded scheme or in the statu- er with caution. A exer J.A.D., WL tory text. See cise authority its to order a parent Hardin, *1-4; attorney’s fees as under the 25-26. necessaries, obligor rule of and if the fails in the trial court’s exer- 4. Caution this child then contempt power of its not rele- cise deciding should exercise caution determination vant whether obligor contempt whether to hold the trial court has the to order to use other means of enforcement. pay attorney’s the children’s father Supreme clearly Court Texas has stated additional child consistently *15 and in holding court that “a trial The Moers reasoned to contempt pay for failure child contempt power court should exercise its by ordered the trial court does violate with caution” and that “because this prohibition against constitutional im widely accepted principle, sought we have to prisonment pay failure a debt.11 See any ‘duty sup- to limit of the to extension I, 18; Tex. art. section Ex parte Const. port’ required to services and costs for Hall, (Tex.1993); Ex Moers, In enforcing support.” re Birkhead, Tex. parte S.W.2d colleagues dissenting S.W.3d at 612. Our (1936). proceed Rather than pp. similar at employ reasoning. post caution,” readily give “with courts should Moers, In the trial court had not 721-22. unambiguous effect to of the language contempt power, exercised its and the trial applicable Iliff, statutes. See in court the case under review has not at 79. power exercised this to enforce its order provides an addi- pay that Ross fees at issue Section 107.023 trial in See id. 611-12. There- tional basis for the court’s authori- appeal. this at 10. Our dissenting colleagues making fees conclude In "neces- [mother’s] J.A.D., point. on But in re J.A.D. is not In re support. This allowed saries” J.A.D.’s court this concluded as follows: the trial court to assess attor- [mother's] say We cannot the trial court acted arbi- ney’s against fees as 'necessaries’ [father]. guid- trarily unreasonably disregarded or or J.A.D., (cita- at *4 In re 2010 WL ing principles ordering [father] rules and omitted). tions pay as child to support. fees [mother’s] by of the issues [fa- Each raised Ross has not asserted that statute re- directly were related to ther] [mother] lating to this case is unconstitutional. interests, J.A.D.'s welfare and best thus cording dissenting justices, sec
ty reasonable attor- to payment of to order attorney 107.023(d), Legislature pro tion Texas to the amicus only determine support. vides that a court additional attorney, to amicus that fees awarded an argues that Ross litem, guardian ad litem are attorney ad him one- authority pay order lacked child, for the benefit of necessaries attorney’s reasonable half of the amicus not mean that this determination does support. In addi fees as additional part the parent’s dis provisions Family tion to the Code post p. 723. support obligation. See above, supports another statute cussed Legislature has stated But the Texas pay order Ross to court’s duty to parent’s that a Code Section as child these fees a duty includes support minor children 107.023, in Suits Other Than entitled “Fees Tex. provide them with necessaries. See per by Entity,” provides Governmental 151.001(c). addition, § In Ann. Fam.Code tinent follows: part as Supreme Court Texas (a) by a than a suit filed In a suit other duty of parent’s have concluded that a entity requesting termi- governmental duty includes parent-child relationship or nation of the parent’s children. See necessaries entity appointment conservator H.V., 55; n. re following persons child ... W.J.S, 35 sec 277-278. Under ex- fees and are entitled 151.001(c) opinion court’s tion in an set the court penses amount Hardin, finding a trial court’s that attor more paid one or and ordered ney’s fees for the benefit of are necessaries parties to suit: a trial court’s supports the child (1) attorney amicus appointed as an these as additional child attorney.... Ann. support.12 Tex. Fam.Code Hardin, 151.001(c); 24- 161 S.W.3d at (d) determine that 27; J.A.D., see also chapter sub to an awarded under this (holding at *4 trial court *16 attorney, attorney an ad litem amicus attorney’s properly assessed “[mother’s] child, or ad litem guardian for the a in against fees as ‘necessaries’ [father]” are for the benefit the child necessaries in which trial court ordered father case of the child. sup fees as “child pay mother’s but that the were (West port” did not state fees § Tex. Ann. 107.023 FarmCode “necessaries”). The only reasonable con lan Supp.2010). unambiguous Under the 107.023(d) a section is that struction of statute, the trial court had guage of this to find that attor trial court has discretion that the amicus authority determine attorney, amicus ney’s fees awarded attorney’s reasonable fees were necessar litem, attorney or ad are guardian litem ad ies for the children’s benefit and to order for the benefit of child attorney one-half necessaries pay Ross to amicus sup may be awarded as additional child amount of these fees as additional 107.023(d). Ac port. § support. child See id. review, pay trial court Lizabeth’s fees and half
12. In the case under ordered Ross by that the incurred Lizabeth and found fees of the amicus additional attorney for the amicus are necessaries children, and the trial court benefit
7H
Daggett opinion
order;
(3)
not ad-
child-support
6. The
does
forcement
aof
appeal.
statutes at issue in this
dress the
such an
award
incurred as
(4)
and is enforceable through contempt;
In re
court and our dissent-
Moers
attorney’s fees
also
be awarded for
ing colleagues rely upon
opin-
this court’s
other
in
affecting
services
suits
parent-
Daggett,
ion in Roosth v.
at 24-27. $2,200. $1,800 to Li- port obligation from McCloskey In re opinions in D.C.M. showing that evidence por these zabeth submitted contrary, disapprove are we $82,375 legal in fees for ser- she incurred McCloskey, 2009 WL tions. Ross’s modifi- D.C.M., opposing rendered in *2; at vices at WL her asserting counter- petition cation *10. finding petition. supports The evidence prove to the evidence sufficient B. Is by Lizabeth were that incurred by the children’s the fees incurred that benefitting services children. legal fees for mother were reasonable But, pay attorney’s to to order a benefitting the children? services necessaries, there also must fees as issue, his Ross also Under first asserts fees are reasonable. See evidence abused its discretion that the Hardin, Though at 24. Liza- ordering pay Ross Lizabeth’s to showing invoices attor- beth introduced (1) as additional child because incurred, ney’s per- the work fees she her request did not this relief in Lizabeth formed, billed, billing the hours (2) pleadings; provided trial court rates, testimony as the record contains no interest would accrue on its postjudgment to fees are reasonable. whether the rate; interest judgment an incorrect to the trial evidence is insufficient (3) to the evidence is insufficient show $82,375 in finding that the attor- court’s for the these fees necessaries and, for this fees are reasonable and are reasonable. children reason, the its discretion trial court abused ordering to these fees. See id. Ross complaints, As to the first two this extent. We first issue to sustain Ross’s court, did not raise them in the Ross failed preserve and therefore he error. complaints re- C. Do the father’s other Halla, 14-06-01126-CV,
See Halla v. No. attorney’s fees garding the amicus (Tex.App.-Hous at *3 have merit? Aug. ton no pet.) [14th Dist.] (failure preserve regarding error lack- issue, first also Under his Ross (mem.op.); of-pleadings argument) Wohlf that the trial court abused its dis asserts Holloway, ahrt v. him half of the ordering cretion pet. attorney’s fees additional child amicus denied) (failure preserve regard error (1) attorney support because amicus ing argument); postjudgment-interest-rate request pleadings did this relief in her 23(failure Hardin, pre during filed pleading until an amended lack-of-pleadings serve error ar regarding (2) court; trial, without leave of the trial gument). provided postjudgment interest accrue its incor would on assertion, As Ross third (3) rate; and the amicus at rect interest suit, change seeking initiated that her fees torney produced no evidence residence, primary and Lizabeth children’s for the benefit of the were necessaries counter-petitioned seeking an increase children. monthly obligation. child-support Ross’s *18 because complaints, it was in the As to first two The trial court found that court, in the trial give interests did not raise them best of the children Ross preserve any he error. Hal right designate failed See Ross exclusive la, 2367600, *3; residence, Wohlfahrt, primary and the trial 2007 WL children’s Hardin, 639-40; S.W.3d into the facts when he asked his clerk to assertion, obtain information petition at 23. As to the third Ross has about a to en- force a provided any argument, child-support or that Ross’s analysis, tri- lawyer al had in filed attorney show that amicus different court citations to Thomas, against Trenton presented her Lizabeth’s cur- no evidence that fees were husband, rent on behalf of Trenton’s ex- necessaries and how would this constitute wife. by construing error the trial court. Even appellate liberally,
Ross’s brief we cannot Before this can court reverse the trial conclude he has briefed these issues court’s upon based these com 38.1(f); adequately. Tex.R.App. See P. plaints, presented Ross must have these Indus., Inc., 14- Pitsenbarger Cytec No. complaints to the trial court and obtained 10-00474-CV, 1312274, *3 WL an ruling. adverse See Tex.R.App. P. 7, (Tex.App.-Houston Apr. 33.1(a); [14th Dist.] Weitz, Kupersmith v. No. 14-05- (mem. pet.) op.); 00167-CV, (Tex. no San Saba Ener- 2006 WL at *3 gy, Crawford, L.P. v. App.-Houston Nov. [14th Dist.] (mem. no pet.) no A op.). appel review of the pet.). upon inadequate Based this brief- late record shows that Ross did not voice ing, any Ross waived review of his third of these complaints the trial court complaint. Pitsenbarger, See or rulings 2011 WL obtain from the trial court. *3; L.P., 1312274, at San Ross has not asserted Energy, any Saba these alleged at 337. errors would constitute fundamen error,
tal nor has Ross cited case preserve D. Did father error in the addressing this issue. The Supreme Court regarding arguments trial court that, of Texas has concluded in the context he asserts his conten- appeals, civil fundamental error is a tion that B.L.D., erred narrow doctrine. See In re denying requested (Tex.2003). the relief in his S.W.3d None of petition? modification alleged errors fall within the narrow scope of the fundamental-error doctrine issue, In his second Ross asserts recognized by Supreme Court Tex that the by trial abused its discretion Therefore, as. id. See fundamental error denying sought the relief Ross his modi apply complaints.14 does not to these issue, petition. fication Under Ross preserve id. We conclude Ross failed to (1) by asserts that the trial court erred complaints. error Kupers these allowing witnesses to be taken out of order mith, at *3. during by bench taking long trial and trial, during breaks the bench denying issue, Under the second Ross also resulting Ross a fair trial and in an errone that the asserts trial erred mak (2) ous ruling; the trial judge failed to ing during various comments the bench trial, during attention the bench and did trial allegedly showed the trial court’s evidence, not hear deny or understand the purported bias or in favor prejudice fair ing Ross a resulting against attorney. Lizabeth and Ross or his (3) comments, ruling; erroneous the trial judge required As to these Ross was by conducting erred his own investigation preserve error in the trial court holding cited during Ross has no case understand evidence a bench trial. reversibly judge by failing express opinion regarding erred atten- We during by failing theory. tion a bench trial or to hear *19 to is insufficient made the evidence trial court objecting when the finding fees that v. Fran court’s Dow Chem. Co. comments.15 See (Tex.2001) cis, (per pay Ross to the trial court ordered Pate, curiam); Accordingly, 238 S.W.3d Elloway v. reasonable. ordering Dist.] Ross (Tex.App.-Houston [14th abused its discretion object any fees, extent, not to this we pet.). pay Ross did these and tri when the improper comments
allegedly the trial court’s order remand reverse Therefore, Ross al made them.16 amount of rea- for a determination by complaint failing by this Liza- waived fees incurred sonable court. in the trial error preserve benefitting the chil- legal beth for services 241; Elloway, Francis, 46 S.W.3d preserve Ross has failed to dren. Because at 900. inadequately briefed the remain- error brief, we ing complaints appellate his second issue. We overrule the challenges. The remainder overrule these order affirmed. of the trial court’s V. CONCLUSION unambiguous language of Under the en banc court of Chief consists statutes, in a non-enforcement applicable FROST, Justice HEDGES Justices continuing the court of modification suit BROWN, BOYCE, SEYMORE, jurisdiction and au- jurisdiction has the CHRISTOPHER, JAMISON, and parent to order a thority Justice ANDERSON is not McCALLY. legal benefit- services participating. sup- ting as additional the children duty parent’s upon the port, based SEYMORE, BROWN, BOYCE, Justices The trial children’s necessaries. join Majority the En Banc and JAMISON paid such fees Opinion authored Justice FROST. third such as an party, other or to a En Banc separate Justice FROST issues attorney. The reasons stated amicus Concurring in which Opinion Justices following it for reach- Moers and cases join. SEYMORE BROWN Justice ing conclusion conflict with opposite Concurring an En JAMISON issues Banc meaning applicable stat- plain Opinion. issues Justice CHRISTOPHER uphold we the conclu- Accordingly, utes. Dissenting Banc which Opinion En In re J.A.D. sion reached in Hardin and Justice HEDGES Justice Chief J.A.D., *1- See In re join. McCALLY Hardin, 4; at 24-27. To JAMISON, Justice, en MARTHA HILL court conflict opinions other of this extent concurring. banc analysis disap- in this we opinion, with the prove them. majority’s holding join I discretion in finding that the trial court did not abuse its supports evidence awarding were for fees incurred Lizabeth sepa- I write the children. But the under facts of case. benefitting services trial, exception apply. object does not complaining party 15. not a bench A need argue does not otherwise. Ross if harm from the comment trial court by proper cured instruc could have been Francis, error, jury. Though we judge required preserve to the tions from 241; Elloway, 238 S.W.3d at did not file a motion to recuse note Ross judge. Because under review involved the case *20 case, In rately emphasize distinguish this specific made however, findings; even propriety the trial court’s award of fees without such find- ings, appointment of the amicus attor- attorney. to the amicus ney only be if can made the court finds her a attorney relatively is new The amicus “necessary” services assist in protecting Family The de- statutory position.1 Code child’s best interests. See id. attorney “an attorney” fines an “amicus as 107.021(b)(2). 107.001(1), §§ The trial ... appointed the court in suit whose court should be given broad discretion in necessary provide legal role is to services this making determination. Since the to assist the court in a child’s protecting permitted court is not to require an amicus provide legal best rather than to interests without serve reasonable compensation, Tex. services to child.” Fam.Code the court must all use available tools to added).2 107.001(1) § (emphasis Although attorney paid, ensure the amicus child, lawyer often for the considered including, statute, permitted by when appointed assist the amicus is court.3 ordering paid such fees to be in the nature may if it appoint only an amicus 107.023(d). § of child See id. necessary appointment finds the to deter- policy encourages This competent attor- mine the child’s best interests and neys accept attorney assign- amicus require appointed amicus to serve with- and fulfill vital ments role “to assist out compensation. reasonable See id. protecting child’s inter- best 107.021(b)(2)-(3); Collins, § see also In Re 107.001(1); §§ ests.” Id. see also id. 837, (Tex.App.- n. 16 844 & § 153.002. pet.). no Houston [14th Dist.] comments, With these I concur holding the trial court’s court did not Here, court found that “all ami- abuse its in determining discretion cus case attorney’s fees are reason- fees to amicus be “necessar- necessary, able and as for the necessaries ordering ies” for children’s benefit and children,” benefit and best interest paid them to be child support. appellant pay and ordered half of the amicus fees “as additional child Justice, FROST, KEM THOMPSON support.” majority correctly points enc concurring. banc Family out that ex- Code section 107.023 plicitly finding authorized the trial court’s court, banc, Today sitting en up- that the amicus are “neces- holds its decision Hardin v. Hardin and 107.023(d). § Tex. saries.” See Code, Fam.Code holds that under the the trial An order to amicus fees in court in non-enforcement modification of child thus nature should pay, suit order a addi- interpreted as an such order to fees as tional child benefit, “necessaries” the children’s the chil- benefitting fees for services split consistent with the statute. See id. dren. This means holding that a R.S., (Tex.1993); Leg., 1. See June 78th n. 3 Act of see also (cur- ch. 2003 Gen. Laws 1173-83 § Tex. Fam.Code 153.002. §§ rent at Tex. version Fam.Code 107.001- .056). 107.001(1); 3.Tex. Fam.Code see also Re Collins, (Tex.App.- paramount goal 2. Our in suits that determine pet.). [14th Houston Dist.] protect of a child also to needs Rodriguez Rodriguez, child’s interests. best for review.6 party timely petition files a authority persists on this issue between Moers, Hardin, and almost all of the the other Houston-based this court and *21 issue, subsequent conse- no appeals. addressing This unwelcome cases court of light on quence today’s petition of decision shines a a for review in the party filed Texas, in problems unique the the vexing Supreme high inherent and the Court of in- governing Texas’s jurisdictional scheme court no to resolve this opportunity had termediate courts. appellate split the two Hous- unfortunate between long courts As as a appeals. ton-based of system only court The Texas court is appel- conflict these two persists between inter system in the States has United courts, problems recurring late and serious appellate geographi whose mediate courts in abound for trial the ten counties courts overlaps.1 The First Court jurisdiction cal jurisdiction within of geographical Appeals of District and the Fourteenth courts, lawyers these as for the and well of District both are com Appeals Court litigate region. who in this parties high posed of the ten counties.2 A same consequence troubling pe- most of Texas’s ten-county re litigation of in this volume jurisdictional regime culiar is the difficult gion, which includes one of the nation’s litigants on and their law- places burden it areas, big ap fuels largest metropolitan who, times, important must yers make pellate case in which there load. cases costly litigation and or settlement deci- appeals from prior appeal, has been no sions on cases which out- pending randomly assigned these ten counties on the likely entirely appel- come will turn between First Court the Four appeal randomly late court to which the teenth Court. Sometimes this court assigned. Rather than make decisions disagree our sister about esteemed strength of based on an evaluation of prime the law. The case under review is a case, litigants caught split-of-author- For seven example such conflict. over ity proceed blindly with the cases must years been there has a conflict between hope randomly will that their case fall opinion our in Hardin and the First the more favorable rule. has opinion Court’s re Moers.3 judges face a similar dilemma. Texas Rules of Appellate Under Procedure, involving upon In cases an issue which method resolving for such disagreement there is an unresolved be- split Supreme is review Court ap- tween the Houston-based courts of Texas.4 Unlike Texas Court of Crimi- no peals, apparent has there is basis deter- Appeals, power nal which to review mining precedent binding on the appeals a court of decision on its own which motion,5 of vertical Supreme of Texas trial court under the doctrine Court if a two appeals only Despite prior review a court of decision stare decisis. least Co., withdrawn, vacated, op. Miles 14-03-00342- v. Ford Motor No. (Tex. 1995). CV, (Tex.App.-Hous- WL at *1 10, 2005, (mem. pet.) [14th Dist.] ton Feb. no (West Supp. 22.201 Tex. Code Gov’t Ann. Moers, op.); 611-12 2010). These ten counties are counties 2003, no (Tex.App.-Houston pet.). [1st Dist.] Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and 4. See Tex R.App. 53.1, P. 56.1. Washington. Gov't Ann. See Tex. Code 22.201. R.App. 66.1, 5. See Tex P. 67.1. Hardin, 3. See Hardin v. 53.1, 2004), judgin't 6. See P. 53.7. Tex.R.App.
7X7 courts, appeals challenges from a court whose tical opinions both not the sits, the trial court least which is the district enormous and con- mandatory precedent apply stant commitment of time judicial re- determining necessary which of the sources manage no clear basis the task. conflicting rules to follow. The trial Compounding difficulty two is the lack of will held judge’s ruling to be correct mechanism at the court-of-appeals appeals designed on which court of level incorrect based eliminate conflicts be- case, two upon appellate is called review critical- tween these courts and to fact known ly important bring uniformity to the trial jurisprudence *22 until litigants or the after the deci- two districts that judge geo- share the same If trial judge guesses graphical jurisdiction. sions are made. the wrong appeals of and the court which Panels of this court are bound follow assigned case the is determines the precedent, this court’s and if a panel occa- harmful, was then the trial court error will sionally precedent, overlooks this court’s reversed, may be and the case be remand- of any the members the court resolve ed retrial. When the two courts with resulting conflict en means of banc jurisdiction opposite coterminous are on very In a case involving review.9 a close issue, counsel, parties, of an and trial sides legal issue in which of one the Houston- play judges appellate are forced rou- based of appeals already courts has taken lette. a position, justices on the other Houston- courts, uncertainty appeals may
This the trial based court of the adopt rule counsel, in litigants especially proble- is from the sister court of and interest fostering important uniformity predictability matic when the issue is an and But, jurisdiction. practically like issue their shared frequently recurring one we today.7 justice speaking, legal One former of most encounter issues are not that and, cases, Texas a Supreme appellate judges Court of and former close most of likely adopt member of both courts are the rule that in Houston-based their correct, predicament this if appeals judgment doing has described is even so gamble.”8 on a a “practicing guess they law and a create conflict between the two perception appeals. Public of fairness is diminished Houston-based courts of of certainty predictability when the En banc review is well-suited resolve compromised. court decisions is But the of appeals’s prece- conflicts one court public’s in our is confidence courts But, en exceptions, dent. with few banc strengthened by the assurance that review will resolve a conflict between single jurisdiction in a courts view the law only appeals two Houston-based courts of uniformly apply consistently. it majority happens if a of the en banc court judgment For these reasons it is in the best in- to make the same the other that, appellate regarding terest of all concerned whenever issue at possible, prece- the two of If Houston-based courts hand.10 there is no conflict in alignment. if a appeals majority achieve But this de- dent this court and goal members of banc presents prac- sitting sirable number this court en eon- Miles, denied) pet. App.-Houston 7. 139. (en banc). Brister, 8. Scott Is It Time to Our Reform Appeals? Mar.-Apr. Courts 2003, Hous. Law.. Glassman, 10. See (en opinion *6-9 banc this Tex.R.App. 41.2(c); Glassman v. Good P. (Tex. friend, 347 S.W.3d 781-82 & n. 8 port in a non-enforcement modification of this court is precedent elude that correct, suit, that prece- majority changes question a conflict between then the First from Court precedent dent award. prohibits statute this whether by en banc review be resolved cannot legislature expressly has not Because majority of the members court. If a prohibited the taxation sitting en conclude that this court banc con- in the modification as child our sister that conflicts precedent text, a trial majority concludes that be wrongly decided and should power to render court has the inherent overruled, for en banc re- then basis fails majority as such. What judgment precedent view is the conclusion Texas to realize is Code decided, than the con- rather wrongly was statutory a comprehensive scheme sitting flict between sister courts. specifically when addresses cannot en the First Court sit justices from enforceable in vice Fourteenth Court and on the banc manner as child Under same reasons, en banc re- For these versa.11 scheme, attorney’s as child taxable *23 not well-suited to resolve conflicts view is exclusively suits enforcement. support appellate courts. between these statutory We not frustrate the should Supreme of Texas ago, Years Court by holding that the trial court framework problems notice of the manifest creat- took has inherent make such discretion to by overlaps appellate in Texas districts. ed a an award in non-enforcement modifica- Miles, S.W.2d at 139. This “disfa- tion For reason and the reasons suit. harshly system has been criticized vored” follow, I respectfully dissent. community who members of the unwanted experienced have firsthand our
consequences of state’s unusual and Family No I. The Texas Code Contains increasingly problematic ap- intermediate Attorney’s Allowing Fees Provision Many have court structure. called pellate Support in a to Be Taxed As Child of the two Houston- for combination Non-Enforcement Modification district, a single courts into to elimi- based Suit jurisprudential problems nate the growing today’s The focus of en banc consider- extraordinary time and ex- as well as the dealing in which a trial court that are devoted to with ation is manner pense confusion inherent the cur- in a may judgment conflicts and a tax for rent scheme.12 Were the two courts to be No modification suit. non-enforcement district, single combined into a conflicts may tax disputes one that the like between cases Moers Hardin judgment as costs. issue for the en through could be resolved banc court, a decide whether court to is option That is not an under the process. context, same added discretion existing structure. in- judgment support as child tax stead. CHRISTOPHER, Justice, TRACY en dissenting.
banc a for judgment The difference between judgment a for child lies costs and permits Recognizing no statute en- primarily varying methods of judgment sup- for fees as child Brister, prior agreeing opinion en banc 40 Hous. Law. 25-27. Appeals). from First Court 41.2(a). P. 11. See Tex.R.App. costs, (a)
forcement incumbent to each. As title, In a suit under this the court judgment for fees is enforceable judgment render for reasonable at- “by any means available for the enforce- torney’s expenses fees and and order judgment ment of a for debt.” Tex. Fam. judgment postjudgment interest 106.002(b) (West 2008). § Code Ann. paid directly to be attorney. point critical here for judgment (b) A judgment fees and by contempt. costs never be enforced expenses may be enforced in the attor- I, prohibition compelled by This article by any name means available for Constitution, section 18 of the Texas which enforcement of a for debt. states, plainly “No ever person shall Tex. Fam.Code Ann. 106.002. This stat- Const, imprisoned I, Tex. debt.” art. ute is organized under the “General Provi- § 18. A, sions” of terms, Subtitle its own When taxed as child judg- it all applies to affecting suits the parent just ordinary ment is treated like an ar- relationship, making apparent dis- rearage unpaid support. par- Because tinction between enforcement and non-en- duty ents owe this under a legal forcement modification proceedings. children, their fees rendered in the nature B. The Only Code Provides are not considered tradi- One tional within debts of Article Additional meaning Attorney’s Provision for I, Hall, parte Section 18. See Ex Fees “As Costs” in Modification (Tex.1993); parte Ex Action Helms, 152 Tex. Subtitle B of Title 5 contains additional *24 (1953). contrary, To the judgments taxed fees, provisions subject on the of attorney’s as child specifically are enforce- 106.002, but unlike Section they by able contempt any and other means generally all applicable to suits affecting the sup- available for enforcement of child parent-child the relationship. Only one 157.167(a). port. § Tex. Fam.Code Ann. such is unique statute to the modification These the garnishment means include context, 156.005, it is and Section which wages, suspension well as as the of drivers states the “If following: the court finds government-issued per- licenses and other that a suit for modification is filed frivo- Const, XVI, 28; § mits. See Tex. art. lously designed or party, to harass a the §§ 158.0051, Tex. Fam.Code Ann. 232.003. court shall tax fees as costs The Constitution not expressly does au- against offending the party.” Id. thorize the enforcement of a for § provision 156.005. This represents the fashion, any debt similar nor does other only “attorney’s occasion where the words statute within the Texas Family Code. fees” appear Chapter chapter the specifically all pertaining reserved for suits A.Section 106.002 Provides for Attorney’s Award Fees a “Debt” modification. As Proceeding in a Title 5 Only C. Authorizing Statute parents in this case filed under suit Award Attorney’s Fees As “Child Code, Family
Title 5 of the Texas which Support” Chapter Is Contained in legislature has labeled “The Parent- Code, the Chapter Des- Relationship Child and the Affecting Suit ignated All Actions for of “Enforce- Relationship.” Pareni^Child Within ment” all only of Title single global there is provision regarding judgments only Section for attor- 157.167 statute ney’s fees, and it as expressly reads follows: authorizes a attor- judgment for resulting an action to costs enforced nature to be fees enforce from Id. part, the stat- under pertinent [Title 5].” child support. added). 158.0051(a) There is (emphasis follows: provides
ute result- (a) provision no like the respon- finds that If the court modification ing from non-enforcement failed to make dent has order the re- the court shall suit. payments, pay the movant’s reasonable
spondent to and all court costs attorney’s fees Do by Majority E. The Statutes Cited and arrearages. Fees addition to 'Attorney’s the Words Not Contain this subsection costs ordered under Fees” any available for be means enforced statutory sections quoting Without of child includ- the enforcement states, majority “Under opinion, its ing contempt. statutes, the trial court was applicable (b) the respon- If finds the court jurisdiction clothed with comply dent has failed order Ross these providing pos- terms order of an Fam. See Tex. support. additional child, access the court session of or 155.003, 151.001, 154.001, §§ Code Ann. respondent shall order Ante, Not of these 156.401.” at 704. one movant’s “attorney’s words sections contains the any all in addition other court costs pro- fees” of these sections one If the court finds the en- remedy. attorney’s fees can vides that an award of with which the forcement of be taxed as additional child comply was respondent has failed to physical child’s necessary to ensure the 15j, Sup- Chapter F. Entitled “Child welfare, health or emotional Attorney’s Does Not Mention port,” ordered under subsection costs Fees means enforced available support, in- enforcement of child provides comprehensive Chapter *25 in- cluding contempt, including but court, guideline setting to the trial withholding. come child and support amounts of awardable 157.167(a)-(b). § provision speaks Id. This through con- providing for enforcement “respondents” in terms of “movants” and withholding those wage and as to tempt wholly Chapter 157 dedicated to because is Ann. periodic payments. Tex. Fam.Code who are al- against parents motions filed § wage It also for with- provides 154.007. legal duty of leged neglected to have their support obligations. holding for medical other Title 5 support. provision No on § Id. It defines interest due 154.183. similarly a authorizes the enforcement of part as child Id. support support. child of attorney’s in the judgment for fees nature § 154.267. child support. of attorney’s 154 never defines Chapter Wage 158.0051 Provides
D.Section for child It component fees as a of Attorney’s in an Withholding Fees for withholding provide wage does Action Enforcement that a attorney’s provide fees. does not It is a of specifies component Section that the trial “necessaries” award 158.0051 award or that a “necessaries” “may support court render an order that income be with- contempt wage can applied withheld towards the satis- be enforced [and] any holding. faction ordered fees and
721 79, (Tex.2004). II. A Silence Statute’s P’ship, 146 S.W.3d 84 In Significance Has the absence of comparable provision Chapter under I read Section 157.167 my opinion, language place- and as a part deliberate choice on the suggest that attor- ment of these statutes legislature to restrict the taxation of attor only as ney’s fees be taxed ney’s support fees as child to suits involv support provisions under the enforcement ing the enforcement of a prior order. This If Section 157.167. were interpretation corresponds logical with the a support intended to be taxable as child legislature notion that appreciated suit, non-enforcement modification I be- practical disparity between modification legislature expressed lieve the would have suits; Chapter judgment against enforcement a that intent under where all provisions parent presently are a who orga- the other modification behind in child Moers, nized. See In certainly will almost require more 612 no [1st Dist.] compelling means enforcement than a legislature pet.) (observing that judgment against a with proven only expressly judgment authorized Moers, history of arrears. See as con- at 611-12 (recognizing the serious conse enforcement, restricting text of and that quences taxing attorney’s that stem from availability of as child fees as child observing of enforcement corre- suits expansion effort to limit their beyond the intent). Chap- sponded legislative As context, enforcement where the threat of now, however, ter is written there 156 can justified); contempt is most see also Mar ascertaining be no textual basis for such Newman, kowsky 134 Tex. Chapter only single intent. contains (1940) (observing that a discussing subject statute consider the evils a statute fees, require its terms when remedy ascertaining legisla seeks if judgment to tax the a modifica- costs intent). interpretation ap tive This also brought tion is frivolous or with the suit preciates longstanding tradition that purpose of Tex. harassment. See Fam. by contempt power punish must ordinary Ann. Code 156.005. modifi- caution, great only exercised “with suits, filings cation those where frivolous preservative, and not as a vindictive issue, only and harassment not at Herring v. Nat’l measure.” Houston for attor- authorizing statute Bank, Tex. Exch. S.W. global provision Section (1923). 106.002—and its text makes no allowance *26 sup- as judgment for a enforceable child legislature specific Where the has made § port. (permitting judg- id. a 106.002 attorney’s the of subject enactments on attorney’s ment fees to be for enforceable fees, there turn is no need to to other judgment as a debt in suit for under containing I provisions general terms. 5). Title legislature fully that the would conclude subject attorney’s the of fees addressed significant. “A silence can be statute’s parent-child the affecting suits relation- Legislature right When a or the includes ship, and Title 5 makes clear that attor- of a but it remedy part one code omits another, ney’s may only be child considered as precisely that be what the Indus., support in enforcement actions under Legislature Inc. intended.” PPG Chapter Ctrs. Partners Ltd. JMB/Houston meaning the majority strains all from The Majority’s Has III. The Conclusion provision as citing text this Any Support Provi- No Textual taxed as child judgment may that a be Family the Texas Code sion of support in a non-enforcement modification Majority Do by the A. The Statutes Cited suit. Judgment Attor- Permit a Not for in a Support Fees ney’s As Child Majority’s Analysis Contrary Is B. The Suit Modification Legislature Non-Enforcement to the Intent the of un- statutory the majority majority’s The claims “under The construction Code,” rea- ambiguous language rejected of should be for the additional ba- statutory super- a “sound that it renders Section 157.167 son “the ordering payment According majority, of fluous. to the sis” for jurisdiction in a non-enforcement support fees as child was clothed with trial court Ante, 700-01, 701-02. suit. of authority” payment modification order conclusion, majority Sec- support support of fees as child under 151.001, exclusively 151.001, 154.001, 155.003, relies on Sections tions Ante, 155.003, 154.001, Ante, and 156.401. But if 156.401. analysis be majority’s judg- should 700-04. The court has the discretion to render rejected simple reason that none support for ment “attor- provisions, these statutes contains words re- under these four without words, ma- pro- those gard underlying fees.” Without to the nature of the possibly reflect jority’s ceeding, legislature construction cannot would have no legislature’s subject. on this intent be specify need support upon finding taxed as the col- Although majority relies on respondent has “the failed make for its con- weight lective four statutes support payments,” provided under Sec- clusion, majority only quotes one of ex- majority tion 157.167. The does not statutes, 151.001, those in Part Section can plain how Section 157.167 be effective Ante, The opinion. IV.A.2 of its at 701. it from the four on which apart statutes pro- majority subsections recited Ann. relies. Tex. Gov’t Code ... parent a child has vide that “[a] 2005) (West (establishing pre- § 311.021 child,” duty support and “[a] every is sumption that statute intended discharge duty who fails to effective). person provides who neces- is liable to is also majority’s analysis flawed owed.” saries to those whom the legislature that it attributes with hav- (c). 151.001(a)(8), Tex. Ann. Fam.Code ing an intent that is inconsistent with its Sec- majority apparently believes that majority enactments. As the ob- own 151.001(c) to be tion authorizes Eight opinion: in Footnote serves its legisla- taxed as child because the law ture If trial court finds parent’s has codified a common ma- for possession What the enforcement of liability “necessaries.” liability to a child to be necessaries jority recognize fails to access *27 of child awards only upon a for the benefit the parent’s “fail[ure] accrues may support, Id. them child it duty support.” the of as additional discharge 151.001(c). 157.167(b) sup- prohibit § The to provide failure be that section would enforcing the trial court from this order port is a matter incumbent enforcement by withholding. not for of income proceedings, suits modification. means
723 Ante, suggests 707 n. This statement in this case taxed the amicus fully legislature appreciate did not judgment the as “additional child support,” of consequences taxing the and there language statutory is no the support. of child Under the the nature equating text with sup- necessaries child majority’s construction of the “relevant fact, port. the statute makes no men- statutes,” attorney’s represent fees that a judgment tion of for or fees the manner by any necessaries enforceable means And, in which it be may enforced. as I of sup- available for the enforcement child follow, explain the sections that there is port, including wage withholding. But un- no body ju- under the entire of der express language the Section risprudence in this holding state that a 157.167(b), wage withholding is not avail- judgment for necessaries enforceable in able if a court finds that a the same manner as support. an comply posses- failed to order for Majority’s The IV. Decision Is Not
sion or to a child. Tex. access See by 157.167(b). Supported Law §Ann. Case majori- Fam.Code ty explanation why can as to offer Supreme A. The Texas Has Never Court allow legislature wage withholding would May Held That Attorney’s Fees Be in suits where there has been no failure of Taxed Child Support As in a Norir- but support, judicial forbid same where Suit Enforcement Modification “necessary intervention is ensure Many Texas courts have held that attor physical child’s or emotional health or wel- may be as construed necessaries inconsistency fare.” id. The required See for incurred the benefit of the child. Even by majority’s holding was intended the Texas Supreme Court has adhered to legislature. fight Rather than position, majority recognizes as inconsistency, majority simply should citations, dating three some back far as concede its own construction is con- ante, century. the nineteenth 701 trary legislature to what actually in- H.V., (citing In re 252 n. 327 tended, which is to restrict the taxation of (2008); Hunter, Searcy v. 81 Tex. attorney’s fees as child suits (Tex.1891); Askey S.W. involving prior the enforcement of a order. Williams, 74 Tex. 1101- S.W. C. Section 107.023 Does Not Permit (Tex.1889)). these au Relying on cited Judgment Amicus Fees in the Na- for thorities, majority judg believes that a Support ture Child may ment for be enforced finally majority claims that necessaries, as child because like an attorney awarded to amicus are en- directly pertain parent’s to a provi- forceable under the duty proposition This Ante, sions of Section 107.023. at 709-11. supported issues addressed In pertinent part, provides that statute All three three cited cases. following: “The court determine that subjects cases examine other than the ... an attorney, fees awarded amicus manner in a judgment which child, attorney ad litem the or guard- enforced, none of them ian ad litem for the child are necessaries dispute arises context of a under the benefit of child.” Tex. Fam. statutory Title predecessor. its 107.023(d). Code Ann. (addressing at 1101-02 Askey, S.W.
I provision ownership do not believe this tract minor supports of land that a majority’s previously mortgaged conclusion. The trial court had to a criminal *28 724 attorney) 1; Searcy, at an enforcement suit and S.W. tinctions between
defense
suit. Ac
ownership of a
a non-enforcement modification
(addressing the
cordingly,
not believe these authori
minor
I do
previously
tract
land that a
had
firm)2; H.V.,
majority’s
can
the
conclusion
ties
to a law
conveyed
a
be
(addressing
evi
that
at 324-27
whether
in a non-enforce
juve
in a
taxed as child
properly suppressed
dence was
case).3
modification suit.
These authorities con ment
nile justice
suggestions
tain
that
the services
general
on
Majority
by Relying
B.
Errs
attorney
be
of an
“necessaries”
Decision Has
Hardin Because That
child,
not
they
the
of the
but
do
benefit
Statutory
No
or Common
Basis
sup
and “child
indicate
“necessaries”
Law
terms, nor do
port”
interchangeable
majori
the
enlight
opinion,
In Part
of its
they
might
basis that
IV.A.2
provide
the
court
a non-
understanding
statutory
ty
of the
dis
concludes “that
en our
disaffirmed,
compensa-
Askey
appellee
were to
reasonable
1.
was whether the
The issue
Thus,
had established title to an undivided one-third
tion would still be owed. Id.
the court
Askey,
at
in a tract
land.
11 S.W.
interest
remanded the case for the additional determi-
The land at the center
this contro-
1101.
nation of whether the
were beneficial
services
had,
versy
point,
at an
to a
earlier
descended
to the minor. Id.
minor,
mortgaged
property
who later
the
promissory note as a
of secur-
issued a
means
H.V.,
supreme
was called to
3.In
the
court
ing
legal
of a
defense
the
services
criminal
a
invoked
Fifth
determine whether minor
his
eventually
attorney.
Id.
was
con-
The land
when,
right
during
to
Amendment
counsel
veyed
legal
the
when
note matured and the
interrogation,
stated that he
custodial
he
unpaid.
supreme
went
Id. The
attorney.”
"wanted
mother to ask for an
his
that the
of an
for neces-
held
"contracts
infant
H.V.,
considering
After
321.
saries are neither void nor voidable” and
objective
interroga
the
circumstances
attorney
"the services
an
should be held
tion, including
age,
majority
the
the minor's
infant,
necessary
charged
an
where
he is
request
un
concluded that the minor's
was
Although
an
with crime.”
the
indictment
Id.
ambiguous,
suppression
fees,
attorney's
minor was bound to
properly granted.
was
Id. at 327. The dis
the court held that he could have avoided
sent would have held that the statement re
mortgage
paid
had he
rea-
within a
therefore,
clarification,
quired
was not
attaining
majority.
after
his
Id.
sonable time
right
conveyance
upheld
was
where
invocation of
to counsel.
Id. at 330
1102.
C.J.,
(Jefferson,
concurring
part
that the
made no
evidence showed
minor
and dis
pay anything upon reaching majority.
senting
objected
offer to
part). The
dissent
Id.
majority's
age
the minor's
"at
conclusion that
prevent
did
least hindered if it
him from
Searcy,
conveyed
interest in
minor
her
[hiring private
himself.”
at 335.
counsel]
Id.
a law firm in
of certain
land to
consideration
Citing Askey,
a mi
the dissent observed that
legal
provided
Searcy,
services
her.
always
right
had
nor
contract for
died,
S.W. at 372. When the minor
suit was
necessaries,
counsel,
including defense
be
Recognizing
filed to disaffirm the deed.
Id.
deny
“it
him
cause
would be unreasonable
voidable,
that a minor’s deed is
rather than
defending
power
to secure the means
void,
supreme
held
the deed
that if
Askey,
In a
himself.” See
11 S.W.
disaffirmed,
have
were to be
must
minor
footnote,
response consigned only
attempted to
it
disaffirm within a
stated,
majority
today
"We
need
decide
majority.
attaining
time after
Id. at 372-73.
[Askey
whether
rule announced
] survives the
The cause was remanded to
trial court
years
juveniles
have a
later
constitu
sur-
determination of whether the minor's
counsel;
right
merely
we
that it
tional
note
attempted
had
to disaffirm the deed
vivor
duty
remains
of a
in the first in
within a reasonable time.
Id. at 373. Be-
H.V.,
pay for
stance to
such necessaries.”
services were
found to be
cause
necessaries,
also
omitted).
(citations
n.
court held that if the deed
725
London,
suit may
enforcement modification
order a don v.
See, 611-12; e.g., McCloskey,
McCloskey v. No. 14-06- (Tex.
00470-CV, *2 *33 2, 2009,
App.-Houston Apr. [14th Dist.] denied) (mem. D.C.M.,
pet. op.); No.
14-06-00844-CV, 4146785, WL *10 Sept. denied) (mem. pet. op.); Duruji v. RIVERA, Appellant Michael Duruji, & Nos. 14-05-01885-CV 14-05- (Tex. 01186-CV, 2007 WL at *8 27, 2007, App.-Houston [14th Dist.] Feb. Texas, Appellee. The STATE of (mem. Watson, pet.) op.); 2005 WL *2; V.T., WL No. 01-11-00729-CR. Castillo, *3; parte Ex No. A14-94-00547- Texas, Appeals Court of CV, (Tex.App. at *1 (1st Dist.). Houston 14, 1994, July orig. Houston [14th Dist.] (mem. proceeding) op.). Jan. them, Daggett IAs read and Hardin Discretionary Review Refused majority may
cannot be reconciled. The March to uphold expressly decide Hardin and D.C.M., McCloskey overrule but I be- precedent
lieve conflict within our still
persists long Daggett so and Hardin together.
are allowed stand Conclusion
VI. majority today holds be taxed as child
non-enforcement modification proceeding.