Helping Texans with a variety of family law cases, including child custody and divorce.

Beating a Request to Pay the other sides attorney’s fees- Safety and Welfare of the Child

by | Jan 6, 2024 | Firm News

Representing yourself in a family law matter can save you a substantial amount of money, but it can also be a challenging journey. It’s often referred to as the “pro-se killer” when a pro-se litigant is ordered to pay the other side’s legal fees. It’s a tough situation because not only are you navigating the legal landscape without an attorney, but you’re also footing the bill for the opposing party’s lawyer. This scenario can discourage settlement attempts and lead to prolonged litigation, with you stuck paying the opposing attorney’s fees. However, there are strategies you can employ to tackle this daunting challenge.

One effective way to contest a request for attorney’s fees is by recognizing when the opposing side has not proved that the fees are for the “safety and welfare” of the child. In this specific blog I will be addressing the specific situation of Interim Attorney’s Fees awarded in a Suit Affecting Parent-Child Relationship. Interim fees are attorney’s fees which are awarded prior to final orders are are intended to be paid from one party to the other in order to provide the other party with attorney’s fees while the suit is being litigated.

In a notable case, during my early legal career, I successfully challenged an award of interim-attorney’s fees in the amount of  $4,205.00. Int he hearing, opposing counsel did not present any evidence that the fees he was seeking were for the “safety and welfare” of the child. Under cross examination of myself he even admitted that the fees were not for the safety and welfare of the child. The Court however ordered my client to pay the attorney’s fees and said that there was “good cause” to do so. The appellate court seemed a bit perturbed that the district court thought it could award these fees simply by announcing that there was “good cause” and ignoring the actual  legal standard.

Below is an excerpt of my brief:

Applicable Law

“Texas has long followed the “American Rule” prohibiting fee awards unless specifically provided by contract or statute.” MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d 660, 669 (Tex. 2009). The basis for the fees must be explicit and the “necessary statutory basis for an award of attorney’s fees may not be supplied by implication.” Lake LBJ Mun. Util. Dist. v. Coulson, 839 S.W.2d 880, 890 (Tex. App.—Austin 1992)

Family Code Section 105.001(a)(5) provides “[i]n a suit, the court may make a temporary order, including the modification of a prior temporary order, for the safety and welfare of the child, including an order:

… for payment of reasonable attorney’s fees and expenses.” Tex. Fam. Code §105.00l(a)(5). As the party requesting temporary orders under§105.001(a)(5), the Real Party in  Interest has the burden of demonstrating to the trial court that the requested temporary  order–e.g., to pay attorney’s fees–is necessary to preserve and protect the safety and welfare of the child. Rogers, 370 S.W.3d at 446.

Below is an excerpt from the Court of Appeals Order which reversed the attorney’s fees. An interesting component of this matter was that at the hearing opposing counsel also asked for attorney’s fees as a sanction. The Trial Court Judge denied the sanctions but awarded interim attorney’s fees. On appeal opposing party argued that the appellate court could infer that the $4,205 ordered was for sanctions and not interim attorney’s fees. The appellate court refused to accept that explanation.

In his petition for mandamus relief, [Petitioner] asserts that the trial court abused its discretion in awarding attorney’s fees because “there was no evidence that the fees were necessary to protect the safety and welfare of the child.” Section 105.001(a)(5) of the Family Code provides that in a SAPCR, the trial court may make a temporary order “for the safety and welfare of the child, including an order . . . for payment of reasonable attorney’s fees and expenses.” Tex. Fam. Code § 105.001(a)(5). Thus, a party seeking interim attorney’s fees under section 105.001 has the burden of showing that payment of the requested attorney’s fees is necessary for the safety and welfare of the child. See In re Rogers, 370 S.W.3d at 445; see also In re Payne, No. 03-17-00757-CV, 2018 Tex.App. LEXIS 2449, at *4-5 (Tex. App.-Austin Apr. 5, 2018, orig. proceeding) (mem. op.) (explaining that trial court may not order payment of attorney’s fees for purpose of “leveling the playing field”).

         Upon review of the mandamus record, we conclude that {respondent] did not present any evidence at the attorney’s-fees hearing demonstrating that the payment of the requested attorney’s fees was necessary for the safety and welfare of [the child] In addition, because “good cause” is not the operative standard under Section 105.001, the trial court’s good-cause finding, even if supported by evidence, will not support the award. See In re Rogers, 370 S.W.3d at 445-46 (explaining that Section 105.001 does not authorize trial court to order payment of fees “for a purpose other than the safety and welfare of the child”).

         In response to[Petitioner’s] petition, [Respondent] does not dispute that she did not present evidence to support an award of attorney’s fees under Section 105.001. Instead, [Respondent] argues that the trial court did not abuse its discretion because it awarded the attorney’s fees to her for “good cause,” as a sanction and not under Section 105.001. See Tex. Civ. Prac. &Rem. Code §§ 10.001, 10.004(b); Tex.R.Civ.P. 13; Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 718-719 (Tex. 2020) (explaining that court’s inherent power to sanction “exists to the extent necessary to deter, alleviate and counteract bad faith abuse of the judicial process”); Howell v. Texas Workers’ Comp. Comm’n, 143 S.W.3d 416, 446 (Tex. App.-2004, pet. denied). Nothing in the record, however, indicates that the trial court awarded the fees as a sanction. In fact, the trial court judge questioned [Respondent’s] attorney about his characterization of the requested fees as a sanction and then expressly stated at the attorneys-fees hearing that he was not imposing sanctions. Specifically, the trial court judge stated, “Yeah, but these aren’t sanctions…. I’m only in fees-for-hearing-work territory, not that anybody has done something sanctionable.” We disagree with Ho’s contention that the attorney’s-fees award was intended as a sanction.

         However, after rejecting [Respondent’s] request for sanctions, the trial court judge went on to state: “[I]t’s long been my impression and understanding that I can order fees for a particular hearing that were not interim fees [and that] if I find it appropriate, I can give fees to the winner.” Based on these comments, it appears that the judge assumed that he had inherent authority to award attorney’s fees to [Respondent] as a prevailing party. This assumption is incorrect. Aside from sanctions for bad-faith abuses of the judicial process, attorney’s fees may only be awarded when specifically provided by contract or statute. See Tucker v. Thomas, 419 S.W.3d 292, 298 (Tex. 2013) (“A trial court’s authority to award attorney’s fees in civil cases may not be inferred; rather, the Legislature must provide authorization through the express terms of the statute in question.”).

         In summary, there is no evidence to support an award of attorney’s fees under Section 105.001, and the trial court did not have any inherent authority to award fees to Ho as a prevailing party. Although it is unclear from the order which of these grounds the trial court relied on in awarding attorney’s fees for “good cause,” an award under either of these grounds would constitute an abuse of discretion.
In re O'Connor, 03-21-00159-CV (Tex. App. Aug 31, 2021)

 

In conclusion, mastering the legal chess game in family law, especially when facing the possibility of attorney’s fees and sanctions, requires not only legal knowledge but also a strategic approach. At the Beveridge Law Firm, PLLC, we specialize in family law and have a deep understanding of the unique challenges faced by non-custodial parents who seek more time with their children. Our geographic focus on Brazoria County and Galveston County allows us to provide tailored solutions that align with the specific dynamics of these courts.

Whether you’re currently dealing with family law issues, anticipating potential challenges in your non-custodial parent journey, or facing unexpected attorney’s fees and sanctions, we’re here to help. Our commitment to equal access for parents and our track record in appellate work set us apart in the legal field.

If you find yourself in a situation where attorney’s fees or sanctions have become a concern, remember that we can assist you in navigating these challenges. Whether you need help with appeals or require a skilled trial attorney to advocate for your case, the Beveridge Law Firm, PLLC, is here to provide you with the support and expertise you need.

Don’t hesitate to take action. Call our office at 281-407-0961 or submit your information through our contact form. We are passionate about helping parents secure equal access to their children and are ready to guide you through the legal maze. With our knowledge, dedication, and personalized approach, you can confidently face any family law challenge that comes your way. The Beveridge Law Firm, PLLC, is your ally in achieving the fair and just outcome you deserve.