Tucker v. Thomas

405 S.W.3d 694

Rosscer Craig TUCKER, II, Appellant,

v.Lizabeth THOMAS, Appellee.

No. 14–09–01081–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Dec. 20, 2011.

Rehearing Overruled Jan. 18, 2012.

Daniel Jake Lemkuil and Alyssa P. Lemkuil, Houston, for Appellant.

Lizabeth Thomas, Walter P. Mahoney, Jr. Pasadena, for Appellee.

EN BANC OPINION

KEM THOMPSON FROST, Justice.

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 geographicallyrestricting 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 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 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. SeeTex. 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.

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. See104 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. See161 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 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. SeeTex.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. SeeTex. Fam.Code Ann. § 155.001 (West...