Texas Appeals Court Upholds Order Requiring Father to Pay Mother’s Attorney’s Fees

When a party wants a judgment corrected, he or she generally has to challenge it directly within a specific time frame.  In some cases, however, a person may seek to avoid the effect of the judgment through a collateral attack.  A voidable judgment becomes final unless it is attacked directly in accordance with applicable procedural rules, but a void judgment may be challenged at any time.  In a recent case, a Texas appeals court had to determine if a provision in a Texas divorce decree ordering a father to pay the mother’s attorney’s fees was void or voidable.

The divorce decree included a fee provision that ordered the father to pay the mother’s attorney’s fees related “to issues concerning the suit affecting parent-child relationship [“SAPCR”] and the safety and welfare of the children.”

The father moved to modify the decree about a month after it was signed.  He asked for increased possession and decreased child support.  He also challenged the fee provision.  The court’s order increased his possession. In its Findings of Fact and Conclusions of Law, the court found there was not a sufficient change in circumstances of either parent or the children to support a change in the father’s child support obligations or the fee provision.  The court ordered him to continue to pay all of the mother’s attorney’s fees related to the SAPCR.

The father appealed the order, along with the orders ordering him to pay specific fees related to the modification proceeding and the appeal.

The appeals court first considered whether the question of the fee provision’s validity was properly before it.  The fee provision was part of the divorce decree.  The father had not appealed the decree, but instead challenged the fee provision with his motion for modification.  He could now only successfully challenge it by showing it was void and therefore subject to collateral attack or that there was a material and substantial change in circumstances that would support a modification.

A judgment is void if the court did not have jurisdiction over the parties or the subject matter, or did not have the capacity to act or jurisdiction to enter the specific judgment.  In this case, the court had jurisdiction over the parties and the subject matter.  The appeals court also found the trial court had the authority to award attorney’s fees. The appeals court therefore found the fee provision was not void.

Because the father moved to modify the decree rather than appeal it, the trial court could only modify the fee provision if there was a material and substantial change in circumstances supporting a modification.  The trial court found there had been none.  The father argued there had been such a change based on the mother’s remarriage.  The mother had testified she did not pay insurance, mortgage payments, or most of the utilities.  The mother also testified, however, she could not afford an attorney if the father did not have to pay the fees.  She had stopped receiving $20,000 in monthly spousal support.  The appeals court found no abuse of discretion in the trial court’s finding there had not been a material and substantial change in circumstances that supported modifying the fee provision.

The father also argued the fee provision should only apply to fees incurred before the decree was entered.  He argued the fee provision did not apply to the modification proceeding because it was a separate lawsuit.  The appeals court noted, however, that the trial court has continuing jurisdiction over the case for purposes of modification.  The appeals court found “[a] modification proceeding is simply one aspect of the continuing SAPCR.”

The father also argued attorney’s fees can only be awarded in modification proceedings if the suit is frivolous or brought to harass the other party.  The Texas Family Code, however, authorizes a trial court to award reasonable attorney’s fees in any suit affecting the parent child relationship. §106.002. Courts have held this section also applies to modifications.   The appeals court found the trial court had the authority to award fees in the modification.

The father also argued the invoices submitted by the mother were too heavily redacted to show they were reasonable and necessary and related to the suit affecting the SAPCR and the children’s safety and welfare.  The appeals court found the documents showed the required information: the type of service, who performed it, the hourly rate, the date, and the time spent.  The appeals court also noted the mother’s attorneys testified at the hearings to enforce payment of the fees.  The father’s attorney was able to cross examine them and address the reasonableness, necessity and relevance of the bills. The trial court also received unredacted copies of the bills.  The appeals court found the trial court had a sufficient opportunity to evaluate the bills for reasonableness, necessity, and relevance.

The appeals court affirmed the trial court’s judgment and ordered the father to pay the mother’s costs in the appeal.

If you are facing a divorce from a partner with substantially more assets, you need a skilled Texas divorce attorney to help you protect your rights.  Call McClure Law Group at 214.692.8200 to set up an appointment.

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