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ATTORNEY’S FEES

ROBERT T. STITES JOHN T. ECK LAW OFFICES OF ROBERT T. STITES, P.C. 933 West Weatherford Street Fort Worth, Texas 76102 (817) 336-7577 Facsimile (817) 336-7583 robert@stitesattorney.com john@stitesattorney.com

STATE BAR OF TEXAS 2007 MARRIAGE DISSOLUTION INSTITUTE BOOT CAMP May 9, 2007 El Paso, Texas CHAPTER 2.2

ROBRET T. STITES LAW OFFICES OF ROBERT T. STITES, P.C. 933 West Weatherford Street Fort Worth, Texas 76102 (817) 336-7577 Facsimile (817) 336-7583 robert@stitesattorney.com
FAMILY LAW SPECIALIST Board Certified - Family Law, Texas Board of Legal Specialization since 1984 Tarrant County Family Law Bar Association (Secretary, 1985-86) Former Member, North Texas Family Law Specialist Association One hundred fifty (150) contested family cases handled annually EDUCATION UNIVERSITY OF OKLAHOMA, Norman, Oklahoma B.A. Political Science, with Honors, 1970 B.A. Spanish, 1970 UNIVERSITY OF OKLAHOMA, Norman, Oklahoma Juris Doctor, 1975 UNIVERSITY OF TEXAS AT ARLINGTON, Arlington, Texas 45 hours toward MBA, 1976-78 BAR ACTIVITIES State Bar of Texas, May, 1976 PUBLICATIONS/SPEECHES Damages: Compensating the Injured for Injury Resulting From Insurer’s Misconduct and Claims Dispositions--Is It Tort or Contract? Oklahoma Law Review, Volume 28, Pages 394-404, Spring, 1975 Conflicts of Law: Statutes of Limitations, Oklahoma Law Review, Volume 29, Pages 385-395, Spring, 1976 HONORS/AWARDS Big Man on Campus University of Oklahoma, 1968-70 Pe-et Men=s Honorary, Top 10 Senior Men University of Oklahoma, 1969-70 Gamma Gamma, All Greek Honorary University of Oklahoma, 1969-70 Secretary, Interfraternity Council University of Oklahoma, 1969-70 University of Oklahoma Law Review, Editor, 1974-75 Phi Delta Phi Law Fraternity, 1974-75 Omicron Delta Kappa Leadership Honorary Trustee, Davey O=Brien National Foundation Trust (Established to honor top college quarterbacks, NCAA Division I Football) MILITARY SERVICE United States Naval Officer, May 31, 1970-August 4, 1973; Honorable Discharge, Lieutenant Junior Grade, United States Navy Served on Commander Sixth Fleet Flagship, USS Springfield (CLG-7), Gaeta, Italy Served on Commander Sixth Fleet Staff, 1972-73 Served on Board USS Intrepid, (CVS-11); Home port: Quanset Point, Rhode Island OTHER Youth Sunday School Class Teacher, Trinity United Methodist Church, Arlington, Texas Eagle Scout, 1962

JOHN T. ECK LAW OFFICES OF ROBERT T. STITES, P.C. 933 West Weatherford Street Fort Worth, Texas 76102 (817) 336-7577 Facsimile (817) 336-7583
john@stitesattorney.com

Education University of Oklahoma College of Law Doctor of Jurisprudence, 1994 Southern Methodist University Bachelor of Science, Economics, 1991 Bachelor of Arts, Political Science with Departmental Distinction, 1991 Professional Licenses and Certifications State of Texas, 1995 Northern District of Texas, 1997 Fifth Circuit Court of Appeals, 1999 Board Certified in Family Law, Texas Board of Legal Specialization, 2004 Member, College of the State Bar of Texas Professional Associations, Honors and Activities Member, State Bar of Texas Member, Tarrant County Family Law Bar Association Member, Tarrant County Bar Association Advisory Committee, 233rd District Court Volunteer Associate Judge, 231st and 324th District Courts Managing Editor, American Indian Law Review, 1993-94 Attorney Panel Training, Child Advocates of Tarrant County Family Law Training, White Settlement Police Department Volunteer Intake Attorney, Legal Aid of Northwest Texas Publications 2006 LexisNexis Texas Annotated Family Code (contributing writer). Studying for the Board Certification Exam, 32nd Annual Advanced Family Law Course, August 2006. Post Judgment, State Bar of Texas, Family Law: Ultimate Trial Notebook, December 2004. Receiverships in Family Law Cases, Tarrant County Family Law Bar Association, April 2003. Receiverships in Family Law Cases, 3rd Annual Family Law on the Front Lines Conference, March 2003. Unusual Uses of QDROs: Using the QDRO to Collect Child Support and Spousal Maintenance, 25th Annual Marriage Dissolution Institute, May 2002. Alternative Enforcement Remedies, Texas Association of Domestic Relations Offices, 15th Annual Conference, October 1999. Eliminating Indian Stereotypes From American Society: Causes and Legal and Societal Solutions (coauthored with Kim Chandler Johnson), AMERICAN INDIAN LAW REVIEW, Volume 20:1 (1995-96).

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TABLE OF CONTENTS
I. INTRODUCTION ............................................................................................................................................. 1 II. LEGAL AUTHORITY FOR ATTORNEY’S FEES ........................................................................................... 1 A. Dissolution of Marriage .............................................................................................................................. 1 1. In General ............................................................................................................................................... 1 2. Temporary Orders .................................................................................................................................. 1 3. Can an Award of Interim Attorney’s Fees be Appealed?....................................................................... 2 4. Temporary Orders on Appeal ................................................................................................................. 2 5. Enforcement of Interim Attorney’s Fees ................................................................................................ 3 6. Post-Decree Enforcement and Clarification ........................................................................................... 3 7. Post-Decree Division of Property........................................................................................................... 3 B. Suit Affecting Parent-Child Relationship ................................................................................................. 3 1. In General ............................................................................................................................................... 3 2. Temporary Orders .................................................................................................................................. 4 3. Temporary Orders on Appeal ................................................................................................................. 4 4. Enforcement of Child Support................................................................................................................ 4 5. Enforcement of Access and Possession.................................................................................................. 5 C. Attorney Ad Litem/Amicus Attorney........................................................................................................ 5 D. Parentage ..................................................................................................................................................... 6 E. Gestational Agreements.............................................................................................................................. 6 F. Termination Hearings................................................................................................................................. 6 G. Adoptions ..................................................................................................................................................... 6 H. Title IV-D Cases ........................................................................................................................................... 6 I. CPS Allegations ........................................................................................................................................... 6 J. Grandparent Custody, Possession and Access ......................................................................................... 7 K. Interference with Possession of Child ....................................................................................................... 7 L. Protective Orders ........................................................................................................................................ 7 M. Habeas Corpus Proceedings....................................................................................................................... 7 N. Damage Caused by a Minor....................................................................................................................... 7 O. Sale of Homestead ....................................................................................................................................... 7 P. Motion for Sanctions or Order Compelling Discovery............................................................................ 7 Q. Rule 13 Sanctions ........................................................................................................................................ 7 III. PROVING UP INTERIM ATTORNEY’S FEES ........................................................................................... 8 A. Pleading........................................................................................................................................................ 8 B. Proving the Fees .......................................................................................................................................... 8 C. Why Your Client Cannot Pay Your Fee ................................................................................................... 9 D. The Other Spouse Has the Funds .............................................................................................................. 9 E. Show the Specific Source of Funds .......................................................................................................... 10 F. Specific Considerations for Title 5 Cases................................................................................................ 11 G. What Does the Judge Think? ................................................................................................................... 11 H. Enforcing the Award of Interim Attorney’s Fees .................................................................................. 12 IV. PROVING UP ATTORNEY’S FEES AT FINAL TRIAL .......................................................................... 12 A. Pleading...................................................................................................................................................... 13 B. What is Still Needed.................................................................................................................................. 13 C. What to Say ............................................................................................................................................... 13 1. Attorney’s Fees..................................................................................................................................... 13 2. Expert Testimony ................................................................................................................................. 14 3. Judicial Notice ..................................................................................................................................... 15 4. What is Still Needed ............................................................................................................................. 15 3. Legal Assistants.................................................................................................................................... 15 V. TIPS AND TRICKS ........................................................................................................................................ 15 A. Affidavit ..................................................................................................................................................... 15 B. Attorney’s Fees a Jury Issue? .................................................................................................................. 15 C. Segregating Your Fees for an Appeal ...................................................................................................... 16 D. Rule for Costs ............................................................................................................................................ 16 VI. CONCLUSION ................................................................................................................................................ 16
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APPENDIX A ......................................................................................................................................................... 17 APPENDIX B ......................................................................................................................................................... 19 APPENDIX C ......................................................................................................................................................... 21

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ATTORNEY’S FEES
I. INTRODUCTION We all want to help our clients. We all want to get paid for helping our clients. Your client is spending limited resources for your time and effort, often owing you money in the process. However, in preparing our cases for trial, the issue of attorney’s fees is often an afterthought. Attorney’s fees are an important issue and should be considered in the preparation of every case. With some preparation and legal authority, it is possible to recoup some of your client’s expenses. You may also be able offer opportunities to potential clients with little access to available funds. This article is intended to be a reference guide to help the family law attorney provide the authority needed to support a request for attorney’s fees and costs. This article also provides helpful ideas and strategies for convincing the trial court as to the amount of fees needed and how to get paid. II. LEGAL AUTHORITY FOR ATTORNEY’S FEES The Texas Family Code authorizes the award of attorney’s fees in the following seven circumstances: 1. Sale of homestead; 2. Temporary orders in a divorce action; 3. Temporary orders on appeal; 4. Post-divorce property division; 5. Enforcement of property division; 6. Temporary orders in a suit affecting the parent-child relationship; and 7. Final orders in a suit affecting the parent-child relationship. In addition to these statutory grounds, the trial court may consider attorney’s fees in making a just and right division of the parties’ marital estate. Wilson v. Wilson, 44 S.W.3d 597, 599-600 (Tex. App.--Fort Worth 2001, no pet.). Dissolution of Marriage In General Texas trial courts are required to divide the parties’ estate in a just and right manner, having due regard for the rights of each party and any children of the marriage. TEX. FAM. CODE § 7.001. The trial court does not have inherent authority or statutory authority to award attorney’s fees in a divorce action. Pletcher v. Goetz, 9 S.W.3d 442, 447-48 (Tex. App.--Fort Worth 1999, pet. denied); Chiles v. Chiles, 779 S.W.2d 127, 129 (Tex. App.--Houston [14th Dist.] 1989, writ denied), overruled on other grounds by Twyman v. Twyman, 855 S.W.2d 619, 624 (Tex. 1993). The trial court may award costs, including attorney’s fees, to any party as it deems reasonable. Mattox v. Buentenello, 800 S.W.2d 320, 328 (Tex. App.--Corpus Christi 1990, no writ). The trial court is authorized to consider attorney’s fees as one of
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many factors when making a just and right division of the marital estate. Pletcher, 9 S.W.3d at 447-48. In determining a just and right division of property and reasonable attorney fees, the trial court may consider such factors as the spouses’ capacities and abilities, benefits which the party not at fault would have derived from the continuation of the marriage, business opportunities, education, relative physical conditions, relative financial condition and obligations, disparity of ages, size of separate estates, and the nature of the property. Murff v. Murff. 615 S.W.2d 696, 699 (Tex. 1981). However, the award of attorney’s fees in a divorce action not involving the parent-child relationship cannot exceed the value of the community property in issue before the trial court. Chiles, 779 S.W.2d at 129. In order to be entitled to attorney’s fees, the party seeking the fees must affirmatively plead for relief. A general prayer for relief is not sufficient. Klaver v. Klaver, 764 S.W.2d 401, 405 (Tex. App.--Fort Worth, 1989, no writ). An award of attorney’s fees in a divorce action should also state that it is awarded “to effect an equitable division of the estate of the parties” thereby making the attorney’s fees judgment acceptable since it was a factor in the property division. Wilson, 44 S.W.3d at 600; Mattox, 800 S.W.2d at 328. While in a suit for dissolution of marriage the trial court, as it considers reasonable, may award costs to a party, costs may not be adjudged against a party against whom a divorce is granted for confinement in a mental hospital under Section 6.007. TEX. FAM. CODE § 6.708. 2. Temporary Orders While a suit for dissolution of a marriage is pending and on the motion of a party or on the trial court’s own motion after notice and hearing, the trial court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable and including an order directed to one or both parties ordering payment of reasonable attorney’s fees and expenses. TEX. FAM. CODE § 6.502(a)(4). The problem that often arises is who will pay the interim attorney’s fees. Can the husband be obligated to provide interim attorney’s fees to the wife’s attorney? Can the husband’s separate property be used to pay interim attorney’s fees? Family law practitioners may look to Section 2.501 of the Texas Family Code, which provides that not only is each spouse has the duty to support the other spouse, but that a spouse who fails to discharge the duty of support is liable to any person who provides necessaries to the spouse to whom support is owed. TEX. FAM. CODE § 2.501. This has been interpreted to include that spouses are obligated to furnish support for community

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living expenses using separate property, if necessary. Graham v. Graham, 836 S.W.2d 308, 310 (Tex. App.-Texarkana 1992, no writ); In re Marriage of Long, 542 S.W.2d 712, 717 (Tex. Civ. App.--Texarkana 1976, no writ). Separate property expended for community living is deemed to be a gift for the benefit of the well-being and use of the community estate. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676, 683 (1953). The law is well settled that both the husband and wife are liable upon the wife’s contracts for necessaries. See Daggett v. Neiman-Marcus Co., 348 S.W.2d 796, 799-800 (Tex. Civ. App.--Houston [1st Dist.] 1961, no writ). This includes attorney’s fees incurred in a divorce action. Smoak v. Smoak, 525 S.W.2d 888, 891 (Tex. Civ. App.--Texarkana 1975, writ dism’d). Further, a spouse can be held responsible for paying the other spouse’s interim attorney’s fees. See Ex Parte Hall, 854 S.W.2d 656, 658 (Tex. 1993). Thus, a helpful extension of this line of cases involves whether one spouse’s separate property may be used to pay the other spouse’s attorney’s fees. See Swenson v. Swenson, 466 S.W.2d 424, 428 (Tex. Civ. App.--Houston [1st Dist.] 1971, no writ)(“Thus it appears that a Wife may collect attorney’s fees, in a suit where legal assistance is required to protect her marital rights, out of the community property, or, if necessary, out of the Husband’s separate property.”). See Jindra v. Jindra, 267 S.W.2d 287, 288 (Tex. Civ. App.--San Antonio 1954, writ ref., n.r.e.). Can an Award of Interim Fees be Appealed? Maybe, so be careful. Reasonable attorney’s fees can be ordered as a part of temporary orders in a divorce case. See TEX. FAM. CODE § 6.502(a)(4). With regard to attorney’s fees, there is no specific guidance in section 6.502 to suggest how the amount of expected attorney’s fees is to be calculated, giving the trial court some discretion. As with temporary support, the award of temporary attorney’s fees must be based on the needs of the applicant as weighed against the ability of the opposing party to pay such fees. See Russell v. Russell, 79 S.W.2d 639, 640 (Tex. Civ. App.--Fort Worth 1934, writ dism’d w.o.j.). An order for temporary support is not appealable, but must be challenged by mandamus under an abuse of discretion standard. Herschberg v. Herschberg, 994 S.W.2d 273, 278 (Tex. App.--Corpus Christi 1999, pet. denied). Some appellate courts take the position that mandamus will not lie to alter the trial court’s award of interim attorney’s fees. See In re Chu, 134 S.W.3d 459, 468 (Tex. App.--Waco 2004, orig. proceeding); In re Bissell, 109 S.W.3d 87, 89 (Tex. App.--El Paso 2003, orig. proceeding); Street v. Second Court of Appeals, 715 S.W.2d 638, 639 (Tex.1986) (orig. proceeding). This is because, in general, when a trial court awards interim attorney’s fees, there is an adequate remedy at law. See
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Bissell, 109 S.W.3d at 89. The award of attorney’s fees may be reviewed on appeal of a final judgment. See In re Ford Motor Co., 988 S.W.2d 714, 722 (Tex. 1998) (orig. proceeding). Mandamus lies to correct the award of interim fees only in extreme cases in which a “party’s ability to prosecute the case further is jeopardized” by the party’s payment of, or inability to pay, the fees. Id. However, in Herschberg, the appellate court granted a mandamus request and reversed an interim attorney’s fee award and stated the following: With regard to attorney’s fees, there is no specific guidance in section 6.502 to suggest how the amount of expected attorney’s fees is to be calculated. We conclude that, as with temporary support, the award of temporary attorney’s fees must be based on the needs of the applicant as weighed against the ability of the opposing party to pay such fees. [See Russell v. Russell, 79 S.W.2d 639, 640 (Tex. Civ. App.--Fort Worth 1934, writ dism’d w.o.j.)]. The danger to be guarded against is that the spouse in control and possession of the bulk of the marital estate will use that control to his or her advantage in the adversary process, leaving the other spouse with inferior representation and at a disadvantage with regard to the division of property. Moreover, unlike an ordinary trial in which there is no community of interest between the litigants, in a divorce proceeding the funds which assist one party are often drawn from the community interest to which the other party has an equal right. Cf. Travelers Indem. Co. v. Mayfield, 923 S.W.2d 590, 595 (Tex.1996) (generally disapproving a pre-trial order requiring party to advance the litigation costs of the opposition because it “radically skews the procedural dynamics of the case”). Because of the uncertainties of future litigation and of the legal and factual issues that may arise, temporary orders are only an estimate of the actual attorney’s fees and costs. As long as there is a credible showing of the need for attorney’s fees in the amount requested and the ability of the opposing spouse to meet that need, the trial court has authority by temporary orders to require the payment of such fees. However, the trial court may not make the opposing party destitute in order to pay the applicant’s support and fees. Herschberg, 994 S.W.2d at 279. See Villasenor v. Villasenor, 911 S.W.2d 411, 420 (Tex. App.--San Antonio 1995, no writ); Florence v. Florence, 388 S.W.2d 220, 224 (Tex. Civ. App.--Tyler 1965, writ dism’d w.o.j.); Allen v. Allen, 366 S.W.2d 650, 651 (Tex. Civ. App.--Amarillo 1963, no writ). 4. Temporary Orders on Appeal The trial court is expressly authorized to award

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“attorney’s fees and expenses” when it is necessary to preserve the property during the appeal. TEX. FAM. CODE § 6.709(2). See also Larry H. Schwartz & Hon. Judith G. Wells, Attorney’s Fees, ULTIMATE TRIAL NOTEBOOK: FAMILY LAW (State Bar of Texas), 2004, Ch. 17, at 1. This includes the payment of appellate attorney’s fees to the appellee. See Love v. Bailey-Love, 2006 WL 2435547, at *3 (Tex. App.--Houston [1st Dist.] Aug. 24, 2006); In re Garza, 153 S.W.3d 97, 101 (Tex. App.--San Antonio 2004, orig. proceeding); Eikenhorst v. Eikenhorst, 746 S.W.2d 882, 890-91 (Tex. App.-Houston [1st Dist.] 1988, no writ)(citing section 3.58(h), now section 6.709). Enforcement of Interim Attorney’s Fees While enforcement of a temporary order awarding interim attorney’s fees is available under Section 6.506 of the Texas Family Code, the enforcement of the payment of interim attorney’s fees can be tricky. For example, in Ex Parte Kimsey, 915 S.W.2d 523, 526-27 (Tex. App.--El Paso 1995, no writ), the trial court’s order requiring the former husband to pay interim attorney’s fees was enforceable by contempt under Section 3.58(f) [now section 6.506] of the Texas Family Code because the obligation was incurred for the support of a spouse or child, and thus did not constitute a debt, making it enforceable by incarceration without violating article I, section 18 of the Texas Constitution. See Ex Parte Hall, 854 S.W.2d 656, 658 (Tex. 1993). In an original habeas corpus proceeding, In re Bielefeld, 143 S.W.3d 924, 930 (Tex. App.--Fort Worth 2004, no pet.), the husband argued that the trial court’s contempt order was unconstitutional because it violated the constitutional prohibition against imprisonment for a “debt.” The trial court did not have the authority to enforce its written order for payment of advance interim attorney’s fees and future expenses by contempt because it did not characterize those fees and expenses as spousal support, thus making them attorney’s fees which could not be enforced by contempt. Therefore, the contempt order entered against the husband was void. If you have an order for interim attorney’s fees as a form of spousal maintenance, the failure to pay interim attorney’s fees as a form of spousal maintenance is punishable by contempt. See TEX. FAM. CODE § 8.059. The lesson from this is that while interim attorney’s fees are allowable, if you need to enforce the order for payment, it may be necessary to classify the fees as support. 6. Post-Decree Enforcement and Clarification Attorney fees may be awarded in post decree contempt hearings. Section 9.014 of the Texas Family Code provides: The court may award reasonable attorney’s fees as costs in a proceeding under this subchapter. The
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court may order the attorney’s fees to be paid directly to the attorney, who may enforce the order for fees in the attorney’s own name by any means available for the enforcement of a judgment for debt. Remember, this statute does not entitle either party to attorney’s fees. It merely permits the trial court to award them. Schneider v. Schneider, 5 S.W.3d 925,930 (Tex. App.--Austin 1999, no pet). Further, the statute does not require a party to have prevailed on his or her claims against the other party. Jenkins v. Jenkins, 991 S.W.2d 440, 450 (Tex. App.--Fort Worth 1999, pet. denied). As of the date this article is written, Senate Bill 433 and House Bill 444 (identical bills) are working their way through the Texas Legislature which would allow a trial court presiding over a post-decree qualified domestic relations order to award reasonable attorney’s fees incurred by a party in a divorce or annulment proceeding. The trial court would be authorized to order the payments to be made directly to the attorney and enforceable by any means available to the enforcement of a debt. See Appendix A. The bills would also amend section 9.014, removing the reference to the award of attorney’s fees “as costs” so that it is uniform with other statutes which provide for the recovery of attorney’s fees as a judgment. See Appendix A. Post-Decree Division of Property Section 9.205 of the Texas Family Code provides: In a proceeding to divide property previously undivided in a decree of divorce or annulment as provided by this subchapter, the trial court may award reasonable attorney’s fees as costs. The trial court may order the attorney’s fees to be paid directly to the attorney, who may enforce the order in the attorney’s own name by any means available for the enforcement of a judgment for debt. The trial court may award reasonable attorney’s fees in a suit to partition undivided property. Burgess v. Easley, 893 S.W.2d 87, 91 (Tex. App.--Dallas 1994, no writ). As of the date this article is written, Senate Bill 433 and House Bill 444 (an identical bill) are working their way through the Texas Legislature which amend section 9.205, removing the reference to the award of attorney’s fees “as costs” so that it is uniform with other statutes which provide for the recovery of attorney’s fees as a judgment. See Appendix A. B. 1. Suit Affecting Parent-Child Relationship In General Attorney fees are recoverable in a suit affecting parent-child relationship. Section 106.002 of the Texas Family Code provides: (a) In a suit under this title, the trial court may 7.

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order reasonable attorney’s fees as costs and order the fees to be paid directly to an attorney. (b) An award of attorney’s fees may be enforced in the attorney’s name by any means available for the enforcement of a judgment for debt. The trial court may also award costs in a suit or motion under this title and in a habeas corpus proceeding. TEX. FAM. CODE § 106.001. A suit for divorce that involves parents of minor children necessarily includes a suit affecting the parentchild relationship. TEX. FAM. CODE § 6.406(b). The award of costs and attorney’s fees is within the discretion of the trial court; the statutes do not require a family trial court judgment to state good cause for adjudging costs against the successful party, as is required in other civil cases, pursuant to Tex. R. Civ. P. 131. See Carlson v. Carlson, 983 S.W.2d 304, 308 (Tex. App. - Houston [1st Dist.] 1998, no pet.). Attorney’s fees awarded in a suit affecting the parent-child relationship may be awarded as necessities. See Marichal v. Marichal, 832 S.W.2d 797 (Tex. App.-Houston [14th Dist.] 1992, no writ). Further, attorney’s fees may be awarded to an unsuccessful party if they are expended for the benefit of the child. Id. at 797. Temporary Orders In a suit affecting the parent-child relationship, the trial 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 § 105.001(a)(5). Section 156.006 authorizes the trial court to render temporary orders while a modification is pending. Therefore, interim attorney’s fees are authorized and available in pending modifications. See Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex. App.--Houston [1st Dist.] 1993, orig. proceeding)(The trial court is not authorized to make a temporary order for payment of reasonable attorney’s fees for a purpose other than the safety and welfare of the child, citing section 11.11(a)(5), now section 156.006 of the Texas Family Code). Temporary orders under Section 105.001 are not subject to interlocutory appeal. TEX. FAM. CODE § 105.001(e); Cook v. Cook, 886 S.W.2d 838, 839 (Tex. App.--Waco 1994, no writ). Remember, if the trial court finds that a suit for modification is filed frivolously or is designed to harass a party, the trial court shall tax attorney’s fees as costs against the offending party. TEX. FAM. CODE § 156.005. 3. Temporary Orders on Appeal The trial court is expressly authorized to award “attorney’s fees and expenses” when it is necessary and equitable to protect the welfare of the children or necessary to preserve the property during the appeal.
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TEX. FAM. CODE § 109.001(5). See also Schwartz and Wells, supra, at 2-3. This includes the payment of appellate attorney’s fees to the appellee. See Love, 2006 WL 2435547, at *4 n.1. Enforcement of Child Support Attorney’s fees and expenses must be paid by respondent in an action for contempt based on unpaid child support. Section 157.167 of the Texas Family Code provides: (a) If the court finds that the respondent has failed to make child support payments, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to the arrearages. Fees and costs ordered under this subsection may be enforced by any means available for the enforcement of child support, including contempt. (c) Except as provided by Subsection (d), for good cause shown, the court may waive the requirement that the Respondent pay attorney’s fees and costs if the court states the reasons supporting the finding. Section 157.167 “requires the trial court to impose attorney’s fees and court costs, provided they are reasonable, absent a specific finding that the Respondent need not pay the attorney’s fees or court costs. The provision is mandatory.” Gordeau v. Marquez, 830 S.W.2d 681,682 (Tex. App.--Houston [1st Dist] 1992, no writ). However, the findings may change as follows under section 157.167(d): (d) If the court finds that the respondent is in contempt of court for failure or refusal to pay child support and that the respondent owes $20,000 or more in child support arrearages, the court may not waive the requirement that the respondent pay attorney’s fees and costs unless the court also finds that the respondent: (1) is involuntarily unemployed or is disabled; and (2) lacks the financial resources to pay the attorney’s fees and costs. Remember that attorney’s fees may be assessed as “necessities” under Section 11.18 (now section 106.002) for enforcement of a child support order. Such an award is incurred as “child support” and is enforceable through contempt. Roosth v. Daggett, 869 S.W.2d 634, 636-37 (Tex. App.--Houston [14th Dist] 1994, no writ). Other statutory sources that provide that a failure to pay child support is punishable by contempt. Include Texas Family Code sections 154.124 (child support agreements), 157.001 (child support final orders), 201.1041 and 201.1042 (master’s reports for child support) and 233.017 (review orders for child support). These sources may be helpful when you have an order for the payment of attorney’s fees a child support. 4.

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Enforcement of Access and Possession While more limited, attorney’s fees and expenses must be paid by respondent in an action for contempt based on a violation of possession of or access to a child. Section 157.167 of the Texas Family Code provides: (b) If the court finds that the respondent has failed to comply with the terms of an order providing for the possession of or access to a child, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all court costs in addition to any other remedy. If the court finds that the enforcement of the order with which the respondent failed to comply was necessary to ensure the child’s physical or emotional health or welfare, the fees and costs ordered under this subsection may be enforced by any means available for the enforcement of child support, including contempt, but not including income withholding. (c) … [F]or good cause shown, the court may waive the requirement that the Respondent pay attorney’s fees and costs if the court states the reasons supporting the finding. It is also possible to seek a remedy for a violation of possession of or access to a child as an interference with possession of a child. See infra TEX. FAM. CODE §§ 42.006, 42.009. C. Attorney Ad Litem/Amicus Attorney Section 107.015 specifically provides for the payment of attorney ad litem fees as follows: (a) An attorney appointed under this chapter to serve as an attorney ad litem for a child, an attorney in the dual role, or an attorney ad litem for a parent is entitled to reasonable fees and expenses in the amount set by the court to be paid by the parents of the child unless the parents are indigent. (b) If the court determines that one or more of the parties are able to defray the fees and expenses of an attorney ad litem or guardian ad litem for the child as determined by the reasonable and customary fees for similar services in the county of jurisdiction, the fees and expenses may be ordered paid by one or more of those parties, or the court may order one or more of those parties, prior to final hearing, to pay the sums into the registry of the court or into an account authorized by the court for the use and benefit of the payee on order of the court. The sums may be taxed as costs to be assessed against one or more of the parties. (c) If indigency of the parents is shown, an attorney ad litem appointed to represent a child or parent in a suit filed by a governmental entity shall be paid from the general funds of
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the county according to the fee schedule that applies to an attorney appointed to represent a child in a suit under Title 3 as provided by Chapter 51. The court may not award attorney ad litem fees under this chapter against the state, a state agency, or a political subdivision of the state except as provided by this subsection. (d) A person appointed as a guardian ad litem or attorney ad litem shall complete and submit to the court a voucher or claim for payment that lists the fees charged and hours worked by the guardian ad litem or attorney ad litem. Information submitted under this section is subject to disclosure under Chapter 552, Government Code. Note that when the legislature added the word “attorney” to section 107.015 of the Texas Family Code in 1999, the issue was raised as to whether the trial court was authorized to award a reasonable fee to an attorney appointed as a “guardian ad litem.” Section 107.023 now makes it clear that a attorney appointed as either an amicus attorney or an attorney ad litem is entitled to a reasonable fee as follows: (a) In a suit other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, in addition to the attorney’s fees that may be awarded under Chapter 106, the following persons are entitled to reasonable fees and expenses in an amount set by the court and ordered to be paid by one or more parties to the suit: (1) an attorney appointed as an amicus attorney or as an attorney ad litem for the child; and (2) a professional who holds a relevant professional license and who is appointed as guardian ad litem for the child, other than a volunteer advocate. (b) The court shall: (1) determine the fees and expenses of an amicus attorney, an attorney ad litem, or a guardian ad litem by reference to the reasonable and customary fees for similar services in the county of jurisdiction; (2) order a reasonable cost deposit to be made at the time the court makes the appointment; and (3) before the final hearing, order an additional amount to be paid to the credit of a trust account for the use and benefit of the amicus attorney, attorney ad litem, or guardian ad litem. (c) A court may not award costs, fees, or expenses to an amicus attorney, attorney ad litem, or

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guardian ad litem against the state, a state agency, or a political subdivision of the state under this part. (d) The court may determine that fees awarded under this subchapter to an amicus attorney, an attorney ad litem for the child, or a guardian ad litem for the child are necessaries for the benefit of the child. Ad Litem fees are to be assessed against one or more of the parties, especially if they are the parents of the child, unless the parents are indigent. Moore v. Moore, 898 S.W.2d 355, 359 (Tex. App.--San Antonio 1995, no writ). From the language of this ruling, nonparents may be ordered to pay attorney ad litem fees. See In the Interest of R.D.Y., 51 S.W.3d 314, 325-26 (Tex. App.--Houston [1st Dist.] 2001, pet. denied)(The child’s grandmother, a managing conservator, was ordered to pay ad litem fees along with the child’s biological mother and father). Parentage As with other suits affecting the parent-child relationship, attorneys may seek to be awarded fees under Sections 106.001-.002 of the Texas Family Code. Also, under Section 160.636(c), the trial court may assess filing fees, reasonable attorney’s fees, fees for genetic testing, other costs, and necessary travel and other reasonable expenses incurred in a proceeding under this subchapter. Attorney’s fees awarded by the trial court may be paid directly to the attorney. An attorney who is awarded attorney’s fees may enforce the order in the attorney’s own name. However, the trial court may not assess fees, costs, or expenses against the support enforcement agency of this state or another state, except as provided by other law. TEX. FAM. CODE § 106.636(d). E. Gestational Agreements Further, a gestational agreement that is not validated may allow the trial court to assess filing fees, reasonable attorney’s fees, fees for genetic testing, other costs, and necessary travel and other reasonable expenses incurred in a proceeding under this section. Attorney’s fees awarded by the trial court may be paid directly to the attorney. An attorney who is awarded attorney’s fees may enforce the order in the attorney’s own name. TEX. FAM. CODE § 160.762(d). F. Termination Hearings The Texas Family Code does not specifically address awards of attorney fees for litigation involving termination of parental rights. However, termination of parental rights involves a suit affecting parent-child relationship and attorneys may seek court ordered fees under Section 106.002. Also, see the discussion below concerning ad litem fees if you are appointed attorney ad litem or guardian ad litem in a termination case.
6

G. Adoptions As with other suits affecting the parent-child relationship, attorneys may seek to be awarded fees under Sections 106.001-.002 of the Texas Family Code. Also, if a petitioner is granted an injunction against a department, county child-care or welfare unit, or a licensed child-placing agency for violations of Section 162.308 of the Texas Family Code regarding preferential treatment of prospective adoptive parents according to race or ethnicity, petitioner is entitled to reasonable costs including attorney’s fees. H. Title IV-D Cases At the conclusion of a Title IV-D case, the trial court may assess attorney’s fees and all court costs as authorized by law against the nonprevailing party, except that the trial court may not assess those amounts against the Title IV-D agency or a private attorney or political subdivision that has entered into a contract under this chapter or any party to whom the agency has provided services under this chapter. Such fees and costs may not exceed reasonable and necessary costs as determined by the trial court. TEX. FAM. CODE § 231.211(a). See In the Interest of Naylor, 160 S.W.3d 292, 295 (Tex. App.--Texarkana 2005, pet. denied). I. CPS Allegations While difficult, there are some remedies for false CPS allegations. Under Section 261.107(a) of the Texas Family Code, a person commits an offense if, with the intent to deceive, the person knowingly makes a report as provided in this chapter that is false. An offense under this subsection is a state jail felony unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a felony of the third degree. The trial court shall order a person who is convicted of an offense under Subsection (a) to pay any reasonable attorney’s fees incurred by the person who was falsely accused of abuse or neglect in any proceeding relating to the false report. TEX. FAM. CODE § 261.107(d). As to a frivolous claim against person reporting the CPS allegation, under Texas Family Code section 261.108(b), a trial court shall award the reporting party reasonable attorney’s fees and other expenses related to the defense of a claim filed against the reporting party for damages or other relief arising from reporting or assisting in the investigation of a report under this chapter or participating in a judicial proceeding resulting from the report if: (1) the court finds that the claim is frivolous, unreasonable, or without foundation because the defendant is immune from liability under Section 261.106 (generally means reported in good faith); and (2) the claim is dismissed or judgment is rendered

D.

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for the reporting party. To recover under this section, the reporting party must, at any time after the filing of a claim, file a written motion stating that the claim is frivolous, unreasonable, or without foundation because the reporting party is immune from liability under Section 261.106; and (2) the reporting party requests the court to award reasonable attorney’s fees and other expenses related to the defense of the claim. TEX. FAM. CODE § 261.108(b). J. Grandparent Custody, Possession and Access Grandparents may seek custody under Section 102.004 of the Texas Family Code and possession and access to a child under Section 153.432 of the Texas Family Code. Sections 102.004 and 153.432 fall under Title 5 of the Family Code involving suits affecting parent-child relationships. Consequently, attorneys may ask the trial court to award reasonable fees and costs under section 106.002 of the Texas Family Code in suits regarding grandparent custody, possession and access. K. Interference with Possession of Child Attorney’s fees may be recovered in connection with pursuing and bringing an action against one who takes or retains possession of a child or who conceals the whereabouts of a child in violation of a possessory right of another person. TEX. FAM. CODE § 42.006. Similarly, if a defendant is successful in an action for interference with possessory right and the trial court or the jury finds the claim for damages was frivolous, unreasonable or without foundation, the defendant is entitled to recover court costs and attorney’s fees. TEX. FAM. CODE § 42.009. Protective Orders The trial court may assess reasonable attorney’s fees against the party found to have committed family violence or a party against whom an agreed protective order is rendered under Section 85.005 as compensation for the services of a private or prosecuting attorney or an attorney employed by the Department of Protective and Regulatory Services. TEX. FAM. CODE §§ 81.005(a), 81.006. In setting the amount of attorney’s fees, the trial court shall consider the income and ability to pay of the person against whom the fee is assessed. TEX. FAM. CODE § 81.005(b). M. Habeas Corpus Proceedings Texas Family Code Sections 106.001-.002 authorize the award of attorney’s fees and costs in a habeas corpus proceeding. See Miericke v. Lemoine, 786 S.W.2d 810, 811 (Tex. App.--Dallas 1990, no writ)(“Section 11.18(a) [now section 106.002] authorizes the award of attorney’s fees and costs in a habeas corpus proceeding.”). Further, under Section 157.375(b), a request by the realtor for costs, attorney’s fees and necessary travel and other expenses under Chapter 106
7

or 152 is not a waiver of immunity to civil process. Damage Caused by Minor Under Section 41.001 of the Texas Family Code, a parent or other person who has the duty of control and reasonable discipline of a child is liable for any property damage proximately caused by: (1) the negligent conduct of the child if the conduct is reasonably attributable to the negligent failure of the parent or other person to exercise that duty; or (2) the willful and malicious conduct of a child who is at least 10 years of age but under 18 years of age. Recovery for damage caused by willful and malicious conduct is limited to actual damages, not to exceed $25,000 per occurrence, plus court costs and reasonable attorney’s fees. TEX. FAM. CODE § 41.002. Separate recovery provisions apply for damage to a hotel room. See TEX. FAM. CODE § 41.0025. O. Sale of Homestead In the unusual situation in which a spouse is incompetent, has disappeared, has abandoned the homestead or is missing on public service, when the remaining spouse wants to sell the homestead, under section 5.104 of the Texas Family Code, the trial court may appoint an attorney in a suit filed under this subchapter for the respondent. The trial court shall appoint an attorney in a suit filed under this subchapter for a respondent reported to be a prisoner of war or missing on public service. The trial court shall allow a reasonable fee for the appointed attorney’s services as a part of the costs of the suit. P. Motion for Sanctions or Order Compelling Discovery Under Rule 215. l(d) of the Texas Rules of Civil Procedure, if a motion to compel for failure to comply with discovery is granted by the trial court, the trial court may award reasonable expenses, including attorney fees, to the moving party, unless the trial court finds that the opposing party to the motion was substantially justified or other circumstances make the award of expenses unjust. Similarly, if the motion is denied, after a hearing the trial court may require the moving party to pay expenses, including attorney fees, to the non-moving party unless the making of the motion was substantially justified or other circumstances make such an award of expenses unjust. The rules for awarding expenses, including attorney fees, for a motion to compel discovery under Rule 215.1(d) also apply to a motion for sanctions under Rule 215.1 (a). Q. Rule 13 Sanctions All proceedings brought before the trial court must be done so in good faith. Attorneys bringing motions N.

L.

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which are groundless or meant only for the purpose of harassment are subject to sanctions under Rule 13 of the Texas Rules of Civil Procedure. Although Rule 13 makes no specific mention of awarding attorney’s fees in Rule 13 hearings, the rule is closely related to Rule 215. The signatures of attorneys or parties constitute a certificate by them that they have read the pleading, motion or other paper; that to the best of their knowledge, information, and belief formed after reasonable inquiry the instrument is not groundless and brought in bad faith or groundless and brought for the purpose of harassment. Attorneys or parties who shall bring a fictitious suit as a experiment to get an opinion of the court, or who file any fictitious pleading in a cause for such a purpose, or shall make statements in pleading which they know to be groundless and false, for the purpose of securing a delay of the trial of the cause, shall be held guilty of contempt. If a pleading, motion, or paper is signed in violation of this rule, the court, upon motion or upon it’s own initiative, after notice and hearing, shall impose an appropriate sanction available under Rule 215(2)(b), upon the person who signed it, a represented party, or both. TEX. R. CIV. P. 13. In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order or the attorney advising him, or both, to pay, at such time as ordered by the court, the reasonable expenses, including attorney fees, caused by the failure. TEX. R. CIV. P. 215.2(b)(8). III. PROVING UP INTERIM ATTORNEY’S FEES To obtain interim attorney’s fees and expenses, an attorney must: 1. Plead for interim attorney’s fees and expenses; 2. Prove the amount of and necessity for the fees for your services and related services, and expenses; 3. Demonstrate the reason that your client does not have the ability to pay for them; 4. Demonstrate the other spouse’s ability to pay for them; and 5. Demonstrate the source of payment for your fees and expenses. Dean Rucker and Mike Gregory have provided an excellent outline to consider below. See Dean Rucker & Mike Gregory, Convincing the Court to Award Attorney’s Fees, 28th Annual Advanced Family Law Course, (State Bar of Texas), 2002, Ch 26. Pleading Without proper pleading, one will not be able to prove attorney’s fees over a properly lodged objection. An attorney seeking fees must affirmatively plead for relief. A general prayer for relief is not sufficient to support an award of attorney’s fees. Klaver, 764 S.W.2d at 405.
8

B.

A.

Proving the Fees With regard specifically to interim attorney fees, the requesting party must not only plead for interim attorney’s fees and expenses, but also convince the trial court that the award of interim fees is necessary to the prosecution of the case and is the fair thing to do. Parties seeking interim attorney fees should make presentations of proof with both oral and documentary evidence to support the claim. Simply testifying to an hourly rate and a rough estimate of the number of hours the attorney anticipates to expend in the matter. One should be prepared to present a detailed explanation of the work already performed and expenses already paid, as well as the anticipated work to be performed and future expenses to be paid. This can include experts, appraisers, receivers, etc. Legal assistant fees are a compensable component of attorney fees and are recoverable. Compensation for a legal assistant’s work may be separately assessed and included in the award of attorney’s fees if a legal assistant performs work traditionally done by an attorney. Gill Savings Ass’n v. Int’l Supply Co., 759 S.W.2d 697, 702 (Tex. App.-Dallas 1988, writ denied). When making a plea for interim attorney fees, the attorney should be prepared to present the following: 1. Show the tasks performed and the legal services rendered ant the time required for each by attorney and by legal assistant as of the time of the temporary hearing. Offer your fee contract with your client into evidence as well as a summary of your time records as of the date of the temporary hearing. 2. Present the trial court with a projection of the future work to be performed prior to trial and at trial by attorney and legal assistant, with an estimate of the time required for each service to be rendered. Present this information in the form of a time-line so the trial court will understand your goal and the manner you seek to achieve that goal. 3. Explain the need to take the other spouse’s deposition and provide an estimate of the time for the preparation for the other spouse’s deposition, for the attorney and the legal assistant, if appropriate. 4. Provide an estimate of the time required for the attorney and legal assistant, if appropriate, to take the other spouse’s deposition. 5. Provide an estimate of the time required for the legal assistant to summarize the deposition and for the attorney to read the summary. 6. Provide an estimate of the expense to pay the trial court reporter for the taking of the deposition. 7. If appraisers will be needed to appraise the value of the other spouse’s business, explain the need for the appraisers and the estimated

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cost of the appraisal. 8. If a certified public accountant will be needed to value a business, examine tax records, audit the other spouse’s business records or trace separate property, explain the need for the accountant and provide the estimated expense of the accountant. Consider calling the certified public accountant as a witness so that the accountant can explain his fees and the estimated time required to perform these tasks. 9. When presenting your case to the judge on interim attorney’s fees, explain the need for pretrial discovery. Demonstrate that your client does not have the financial records in his/her possession and does not have knowledge of or familiarity with the other spouse’s business. 10. If the facts warrant, show the uncooperative attitude of the opposing party or opposing attorney. 11. If the other spouse has perpetrated acts of violence or made threats of violence against your client, provide the trial court with evidence to justify the time and effort required to obtain a protective order, temporary restraining order and temporary injunction. 12. If the other spouse has threatened to or has actually hidden property, withdrawn money from accounts, canceled credit cards locked your client out of the house, cut off the utilities, canceled health insurance or canceled auto insurance, provide the trial court with evidence to show the need for a temporary restraining order and temporary injunction to preserve the status quo of property. Rucker & Gregory, supra at 2-3. See Appendix B for an example of a summary billing document. C. Why Your Client Cannot Pay Your Fee Demonstrate your client’s inability to pay your attorney fees and expenses. Consider the following: 1. Your client’s lack of income or low income, compared to the other spouse’s income. 2. Your client’s lack of funds from which attorney’s fees and expenses can be paid. 3. Your client’s lack of access to community funds. 4. Your client’s inability to obtain more funds. 5. That your client has paid you nothing to date, or if your client has paid you some money, show the amount of money that has been paid and the fact that it is now exhausted. 6. The provision in your attorney/client fee contract that provides that if you are unable to obtain interim fees at the temporary hearing, you have a right to withdraw as your client’s
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attorney of record. 7. That your client’s monthly expenses far exceed monthly income. 8. That your client has not been allowed to write checks and is not on the signature card for any checking or savings account and that the other spouse simply gives your client a weekly cash allowance which ceased prior to the hearing. Rucker & Gregory, supra at 2-3. D. The Other Spouse Has the Funds Showing your client has no money is not enough. The attorney for the requesting party has to show that the other spouse has the ability to pay. While the Texas Family Code and local rules often require the production of some financial information, it may be necessary to subpoena or have the other spouse ordered to produce at the temporary hearing the following financial records: 1. Copy of the other spouse’s fee contract with his/her attorney. Know your trial court. Some trial courts have a policy of equalizing attorney’s fees. 2. Records showing the amount paid by the other spouse to his/her attorney. 3. Check registers and statements for checking and savings accounts. 4. Copy of recent financial statement filed with bank. 5. Bank records showing existing lines of credit, the amount used and the amount of credit available. 6. Copies of credit card statements showing the credit limit for charges and cash advances, amount used and amount available credit. 7. Copy of life insurance policies to determine the amount of cash value in the policy that could be obtained either outright or by a loan against the policy. 8. Copy of the other spouse’s IRA, profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee savings or other employee benefit plan, which may show an ability to borrow against the plan. 9. Copy of the other spouse’s brokerage records and stock portfolio records in order to determine if there are stocks and bonds that could be sold. 10. Title documents to vehicles, boats, trailers, farm equipment, horses and livestock. 11. Copies of certificates of deposit. 12. Copies of the other spouse’s business and individual tax returns. 13. Copies of pay stubs and other records showing the other spouse’s monthly income from all sources. 14. List of contents of the other spouse’s safe

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deposit box, and a copy of ledger card showing name of person and date of each time the other spouse’s safe deposit box was entered. Rucker & Gregory, supra at 4. E. Show the Specific Sources of Funds Relatedly, show the trial court the sources for payment and manner in which payment of interim attorney’s fees can be made. Judges are more likely to award attorney’s fees from readily available funds, rather than ordering a party to sell property. Some suggested sources are: 1. From available cash as follows: a. checking account; b. savings account; c. money market account; d. cash on hand at home and in safe deposit box; e. cash value of life insurance; and f. monthly income. 2. From cash made available by having the trial court place the other spouse on a budget. The trial court has authority to prohibit a party from spending funds beyond an amount the trial court determines to be for reasonable and necessary living expenses. TEX. FAM. CODE § 6.502(a)(7). 3. Reducing any voluntary contributions made by the other spouse to an employee savings, pension or retirement plan. 4. From the sale of liquid assets like stock, bonds, gold and silver. 5. From the sale of non-essential, non-exempt, lien-free property such as: a. extra vehicle; b. power boat, waverunners, sailboat, trailer; c. motorcycle; or d. firearms. 6. From a cash advance on a credit card. 7. From a loan secured against the following: a. cash value of life insurance b. IRA, profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k), employee savings or other employee benefit plan; c. certificate of deposit; or d. home equity. 8. From existing lines of credit or through an unsecured loan. 9. If the other spouse borrowed money on an unsecured note to pay his/her attorney, request that the trial court order the other spouse to borrow money on an unsecured note in an equal amount to pay your client’s attorney’s fees. Alternatively, if the other spouse borrowed money to pay his/her attorney and still has the proceeds of the loan, order the
10

other spouse to pay one-half of the loan proceeds for your client’s attorney’s fees and one-half to the other spouse’s attorney. 10. Request that the trial court order the creation of one account, funded by the other spouse, from which both attorneys are paid, subject to the trial court’s approval. Each attorney would present his statement for attorney’s fees to the judge in camera, without a hearing, for the judge to determine the amount to be paid from the one account. By presenting the statements for attorney’s fees to the judge in camera, the two attorneys would not be able to keep track of each other’s work. 11. Request that the trial court order the establishment of two accounts, each funded by the other spouse, one for husband and one for wife, with equal amounts deposited in each account. Essentially, this is a request for matching funds. For every dollar the other spouse pays to his/her attorney, the other spouse pays an equal amount for your client’s attorney’s fees. 12. Ask the trial court to order the establishment of two unequal accounts, both funded by the other spouse, a smaller account for the other spouse and a larger account for your client. The account for your client is larger because of the other spouse’s knowledge and familiarity with his/her business and financial records, as well as the familiarity and knowledge of the other spouse’s attorney and certified public accountant with the other spouse’s business and financial records as compared to the lack of knowledge and familiarity of with the other spouse’s business and financial records by you, your client and your client’s certified public accountant. 13. Request a provision in the temporary orders that will allow you to come back to the trial court and ask for additional interim attorney’s fees and expenses when the initial amounts ordered have been depleted below a specified amount. 14. If all else fails, try the temporary support approach. In the event there are no existing funds from which to pay interim attorney fees and no property that can be sold quickly to pay the fees and expenses, but if the other spouse has a large monthly income, ask the trial court to order the other spouse to pay your client a large monthly sum in temporary support from which interim attorney’s fees can be paid. Rucker & Gregory, supra at 3-4. In drafting your pleading for interim attorney’s fees, it is most helpful to include a specific allegation that there are existing funds from which the other party can

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pay your attorney fees. Remember, the more liquid the asset (cash, bonds easily converted into cash) the more likely the judge is to award interim attorney’s fees. In your pleading, identify the specific funds and request that the trial court order the fees to be paid directly from those funds. F. Specific Considerations for Title 5 Cases It may be more difficult to obtain interim attorney’s fees in a suit affecting parent-child relationship that does not involve a dissolution of marriage because there is no community property. There may be resistance to this because permitting interim attorney fees under a solely Title 5 case (e.g. post-divorce or parties not married) constitutes a taking of separate property and should not be permitted. However, interim attorney fees are statutorily permitted by Title 5 and the discussion above should relate to any action to obtain attorney fees under Title 5. See TEX. FAM. CODE § 105.001(a)(5). G. What Does the Judge Think? When making a plea for interim attorney fees, it is always helpful to know what factors the judge will consider. A survey of Houston and Dallas area judges compiled by Mike Gregory, J. Lindsey Short, Jr., and Joan F. Jenkins revealed the following considerations: 1. Relative income of the parties. 2. Availability of money from which to pay interim attorney fees. 3. One of the parties making the process harder, more difficult, time consuming and costly for the other party. 4. The amount of attorney’s fees expended by one party. The issue here is to attempt to provide a level playing field. 5. The acts or threats of one party necessitating the need for protective orders, restraining orders and injunctions and the enforcement of same. 6. Relative earning potential and education of the parties. 7. Sacrifices made by party “A” in order to enable party “B” to obtain greater education and earning potential than party “A”. The classic example is the wife quitting college and putting her husband through college and medical school. 8. Wasting of community assets by one party. 9. Guideline child support not adequate to provide for the needs of party “A”, compensate by ordering party “B” to pay interim attorney’s fees to party “A”. 10. Size of the community estate. 11. Type of funds available from which to pay interim attorney’ s fees. The more liquid the funds, the greater likelihood of an order of interim attorney’s fees. A trial court is more
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12.

13. 14.

15.

16.

17.

18.

19. 20.

21.

22.

23. 24. 25.

26.

likely to order payment of interim attorney’s fees from cash than order property sold to pay interim attorney’ s fees. On the other hand, a trial court will order property sold for the payment of interim attorney’s fees before the trial court will order a party to borrow money or take a cash advance for the payment of interim attorney’s fees. If one party has greater control of the assets, particularly if it is to the exclusion of the other party. Financial needs of the children. Actions of the parties. How contentious are they? How much work is party “A” and his attorney causing for party “B” and her attorney? The relative experience and skill of the attorneys. Would not order the same amount of interim attorney’s fees paid for an inexperienced attorney as for a board certified family law specialist. The requesting attorney’s reputation, reasonableness, integrity, and past history. A reasonable attorney asking for an appropriate amount of interim attorney’s fees and expenses will be treated differently than an unreasonable attorney, who is making a mountain out of a mole hill and asking for unreasonable amounts of attorney’s fees relative to the assets and matters involved. The underlying reason for the request for interim attorney’s fees must be good, justified by fairness, and supported by facts. Whether the non-requesting party has paid his attorney’s fees and the amount he has paid his attorney. Whether it appears there are real issues that need to be developed in the case. What portion of community funds has been spent by whom and on what as of the time the temporary hearing. Whether the requesting party simply wants a “free ride” or is the requesting party accepting responsibility, i.e., taking care of children and/or working, and/or going to school. Will the award of interim attorney’s fees prolong and add expense to what should be a simple divorce? Can the family components still have survival income if interim attorney’s fees are awarded? Will the award of interim attorney’s fees exacerbate hostility between the parties? Will there be sufficient liquid assets upon completion of the divorce for payment of attorney’s fees? Will there be a need for appraisals, audits, tracing. Depositions, psychologists, psychological

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evaluations and thus the need for experts in those fields? 27. How much discovery might be required? 28. Are the attorney’s fees and expenses requested really necessary? 29. If the client has contracted to pay a reasonable fee. 30. That the client is bringing the action in good faith. 31. The lack of ability of a client to pay attorney’s fees because of non-access to community estate, insufficient or no separate property estate and inability to borrow money. 32. The time, skill and labor that will be required, as well as the novelty and difficulty of the questions involved. 33. The time limitations that will be imposed by the case. 34. What the attorney for the requesting party has done at the time of the temporary hearing and what will need to be done prior to final hearing. Keep in mind, judges don’t simply want an hourly rate and an estimate of the number of hours anticipated. Judges want a detailed plan explaining the attorney’s course of action and what he intends accomplish through step. The judge also wants an explanation of where the interim attorney’s fees should come from and what funds are available as a means of payment. Mike Gregory, et al., Attorney Fees-Interim and Final, 19th Annual Advanced Family Law Course, (State Bar of Texas), 1993, Ch. N, at 7-9. H. Enforcing the Award of Interim Attorney’s Fees An order for interim attorney’s fees and expenses can be enforceable by contempt pursuant to sections 6.709(a) and 105.001(f) of the Texas Family Code if it is done correctly. The order should be drafted so that it complies with the enforceability requirements of Ex Parte Slavin, 412 S.W.2d 43, 44 (Tex. 1967). A person may be ordered to pay a specific sum of money out of existing funds and that such an order is enforceable by contempt. Ex Parte Preston, 347 S.W.2d 938, 942 (Tex. 1961). In Kimsey, Mr. Kimsey was ordered to pay $50,000 in attorney’s fees as temporary spousal support. When he failed to make payments, he was incarcerated for contempt. Mr. Kimsey argued that his incarceration violated the Texas Constitution for incarceration for failure to pay a debt. The trial court disagreed, stating: It matters not whether the trial court awards alimony pendente lite to the wife in order to provide her sufficient funds with which to pay her attorney or whether the court orders, as temporary spousal support, that the monies will be paid
12

directly to the attorney for the wife’s benefit or into the registry of the court for disbursement upon application. In each instance, the wife is recouping the benefit of the support award. Kimsey, 915 S.W.2d at 526. Failure to pay interim attorney’s fees as a form of spousal maintenance or child support is punishable by contempt. See Texas Family Code Section 8.059 (spousal maintenance) and Sections 154.124 (child support agreements), 157.001 (child support final orders), 201.1041 and 201.1042 (master’s reports for child support) and 233.017 (review orders for child support). If temporary orders are drafted ordering the payment of interim attorney’s fees, Rule 215 (2)(b) sanctions may not be imposed by non-payment. Essentially, in Texas you cannot be imprisoned for failure to pay a debt. This authority is set out in Rule 215(2)(b), Texas Rules of Civil Procedure and the case Baluch v. O’Donnell, 763 S.W.2d 8, 11 (Tex. App.-Dallas 1988, orig. proceeding). You may find a way around this rule by obtaining temporary orders requiring payment specifically for the use of discovery. According to Shirley v. Montgomery, 768 S.W.2d 430, 432-33 (Tex. App.--Houston [14th Dist.] 1989, orig. proceeding), if temporary orders are drafted so that a party is ordered to pay money from existing funds into an account to pay for discovery, the failure to do so is punishable by the imposition of sanctions. In this case, Mrs. Shirley was ordered to pay $15,000 into an attorney ad litem trust fund to pay the costs of discovery to determine the best interests of the child. When Mrs. Shirley did not make the payment, the trial court granted a motion imposing sanctions and ordering that all her motions be stricken. Later on appeal, it was determined that Mrs. Shirley was unable to pay the $15,000 and the sanctions were lifted. Id. However, if you can prove the existence of funds from which discovery costs could be paid, the trial court may impose temporary orders for the payment of discovery costs and impose Rule 215(2)(b) sanctions if the costs are not paid. The payment of interim attorney’s fees cannot be coerced by refusing to go to trial. Baluch v. Miller, 774 S.W.2d 299, 301-02 (Tex. App.--Dallas 1989, orig. proceeding). IV. PROVING UP ATTORNEY’S FEES AT FINAL TRIAL When requesting interim attorney’s fees, the attorney must plan and estimate how many hours will be spent on the case and provide documentation and oral testimony as to the purpose of each planned course of action. At the final hearing, the should know how many hours have been devoted to the case and what services were rendered. However, it is important to consider the following:

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A.

Pleading In order to be awarded attorney’s fees at the conclusion of the case, the attorney must file an affirmative pleading requesting fees unless the issue is waived or tried by consent. Klaver, 764 S.W.2d at 405. Furthermore, if a party requests a specific amount in attorney’s fees, that party will be limited to that amount. Carson v. Carson, 528 S.W.2d 308, 309 (Tex. Civ. App.--Waco 1975, no writ). B. Facts of the Case Of course, show your client’s inability to pay and the ability of the other spouse to pay your attorney’s fees and expenses. This methodology is similar to that of requesting the trial court for interim attorney’s fees. The trial court should now be familiar with the relative wealth and earning capacities of each party. Seek attorney’s fees first from the liquid assets, then from property that can be sold, and finally as a money judgment which should be secured. Be familiar with the following laundry list of factors provided by the Texas Supreme Court in determining a just and right division of community property: 1. Disparity of incomes or of earning capacities of the parties; 2. The spouses’ capacities and capabilities; 3. Benefits which the party not at fault would have derived from the continuation of the marriage; 4. Business opportunities; 5. Education; 6. Relative physical conditions; 7. Relative financial condition and obligations; 8. Disparity of ages; 9. Size of separate estates; and 10. The nature of the property. See Murff, 615 S.W.2d at, 698-99. Also consider what your pleadings say. The Original Petition for Divorce, Form 3-1, Texas Family Law Practice Manual, Second Edition, Volume 1, sets out a list of twenty-eight factors for the trial court to consider when one party is attempting to convince the trial court that a fair and just division of the community estate would be an unequal division in favor of the requesting party: 1. Fault in the breakup of the marriage; 2. A fraud on the community; 3. Benefits the innocent spouse may have derived from the continuation of the marriage; 4. Disparity of earning power of the spouses and their ability to support themselves; 5. Health of the spouses; 6. The spouse to whom conservatorship of the child(ren) is granted; 7. Needs of the child(ren) of the marriage; 8. Education and future employability of the spouses;
13

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19.

20. 21. 22. 23. 24. 25. 26. 27. 28. C. 1.

Community indebtedness and liabilities; Tax consequences of the division of property; Ages of the spouses; Earning power, business opportunities, capacities, and abilities of the spouses; Need for future support; Nature of the properly involved in the division; Wasting of community assets by the spouses; Credit for temporary support paid by a spouse; Community funds used to purchase out-ofstate property; Gifts to or by a spouse during the marriage; Increase in value of separate property through community efforts by time, talent, labor, and effort; Excessive community property gifts to the parties’ child(ren); Reimbursement; Expected inheritance of a spouse; Attorney’s fees to be paid; Creation of community property through the use of a spouse’s separate estate; The size and nature of the separate estates of the spouses; Creation of community property by the efforts or lack thereof of the spouses; Actual fraud committed by a spouse; and Constructive fraud committed by a spouse.

What to Say Attorney’s Fees Prove up attorney’s fees in the event the case is appealed to the trial court of appeals and the Supreme Court of Texas. It will only take moments to prove up attorney’s fees and preserve the issue. You should include testimony about your credentials: 1. Qualifications; 2. Location of your practice and its focus; 3. Length of time in practice; 4. Board certifications, other achievements or experience; 5. Introduce a copy of your updated Curriculum Vitae; 6. Qualifications of prior attorneys, associates and legal assistants; 7. Describe any unusual circumstances or issues; 8. Your fee, its reasonableness and necessity; 9. Explain the terms of your attorney fee contract and admit it into evidence; 10. Provide redacted time records or a summary of the time records and any expenses incurred. This billing should also show how much your client has paid and the amounts still owed by the client, if any; 11. Show the debt incurred by your client to pay

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attorney’s fees and expenses; 12. Document as completely as possible the time and expenses caused by the acts, omissions and failure to cooperate by opposing party and opposing attorney--You can use this as an opportunity to demonstrate how difficult and unreasonable the other party or attorney has been; and 13. Be persuasive and be confident in knowing that you deserve the fees you request. It is important to keep in mind that judges will only reward reasonable attorney’s fees in Title 1 and Title 5 actions. The reasonableness of attorney’s fees is a fact question which must be supported by competent evidence. Morgan v. Morgan, 657 S.W.2d 484, 493 (Tex. App.--Houston [1st Dist.] 1983, writ dism’d). A comprehensive list of the factors used by the trial courts to determine if a fee is reasonable is provided in the Texas Disciplinary Rules of Professional Conduct and should be considered: 1. The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly; 2. The likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the attorney; 3. The fee customarily charged in the locality for similar legal services; 4. The amount involved and the results obtained; 5. The time limitations imposed by the client or by the circumstances; 6. The nature and length of the professional relationship with the client; 7. The experience, reputation, and ability of the attorney or attorneys performing the services; and 8. Whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal services have been rendered. TEX. DISCIPLINARY R. PROF’L CONDUCT 1.04(b), reprinted in TEX. GOV’T CODE, tit. 2, subtit. G app. A (TEX. STATE BAR R. art. X, § 9). See Braswell v. Braswell, 476 S.W.2d 444, 446 (Tex. Civ. App.--Waco 1972, writ dism’d). Expert Testimony In order to provide oral testimony concerning attorney’s fees, you must designate yourself as an expert witness. An expert on attorney’s fees may present testimony as defined by the Texas Rules of Evidence. “If scientific, technical, or other specialized knowledge will assist the trier of facts to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise. TEX. R. EVID. 702.
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2.

Only an attorney is qualified to testify as to what is a reasonable fee for an attorney’s legal services. The attorney trying the case may testify as to attorney’s fees in the case because he or she has personal knowledge of the work done in the case. A judgment awarding attorney’s fees may be supported solely based on the testimony of the trial attorney. Peeples v. Peeples, 562 S.W.2d 503, 506 (Tex. Civ. App.--San Antonio 1978, no writ). If you wish to have another attorney testify as to the reasonableness of your fees, he or she must be identified as an expert witness. If you do not make these expert designations, you and your witness will not be permitted to testify. See E.F. Hutton Co., Inc. v. Youngblood, 741 S.W.2d 363, 364 (Tex. 1987). Also, be prepared to furnish your fee agreement and billing statements in response to a request for production of documents. Also make sure the testifying attorney reviews all the trial court files including pleadings, discovery, and orders so they may provide a well educated opinion for the trial court. Remember Rule 703 of the Texas Rules of evidence allow testimony even if it is based on hearsay: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. TEX. R. EVID. 703. It is probably a good idea to have this expert attorney not be your law partner, but someone you try cases against. Once qualified, an expert may give an opinion on the issues to be decided by the fact finder, that is, the reasonableness and necessity of the attorney’s fees incurred in the suit. “Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.” TEX. R. EVID. 704. Have the expert then testify as to the criteria described above. Courts are split on whether they will permit narrative testimony in arguing for attorney’s fees. See Food Source, Inc. v. Zurich Ins. Co.. 751 S.W.2d 596, 600 (Tex. App.-Dallas 1988, writ denied). See also Great Global Assurance Co. v. Keltex Properties Inc., 904 S.W.2d 771, 778 (Tex. App.--Corpus Christi 1995, no writ). If the opposing counsel objects to your request to testify in narrative form, argue that the objection comes as a form of harassment. Also argue that the traditional question and answer format will greatly prolong the proceedings and in effect waste the trial court’s tune. Finally, remind the trial court that Rule 61l(a), Texas Rules of Evidence permits the trial court to exercise reasonable control over the mode and order of interrogation of witnesses and the presentation of evidence.

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Client Testimony Have your client testify that you were retained to represent him or her in the matter before the trial court and that she agreed to pay you a reasonable fee for your services. Merely having the client testify that he or she agreed to pay an attorney fee based on a certain dollar amount per hour is not sufficient to establish the reasonableness of the attorney’s fee. Smith v. Smith, 757 S.W.2d 422, 424-25 (Tex. App.--Dallas 1988, writ denied). 4. Judicial Notice Do not attempt to persuade the trial court to award attorney’s fees and expenses by asking the trial court to take judicial notice of a specific sum that is a reasonable attorney’s fee. The trial court may not take judicial notice of the reasonableness of attorney’s fees in an action that is not under section 38 of the Civil Practice and Remedies Code. See Valdez v. Valdez. 930 S.W.2d 725, 733 (Tex. App.--Houston [1st Dist] 1996, no writ). Cf. In re Striegler, 915 S.W.2d 629, 644 (Tex. App.-Amarillo 1996, writ denied)(Trial court’s decision to take judicial notice of reasonable attorney’s fees upheld in a family law case.). It would be wise however to prepare documentation of your attorney’s fees and designate yourself and any others testifying as expert witnesses on the reasonableness of your attorney’s fees. 5.

3.

Id. See Moody v. EMC Services, Inc., 828 S.W.2d 237, 248 (Tex. App.--Houston [14th Dist. 1992, writ denied). When presenting the issue of legal assistant fees to a jury, consider the ruling in Multi-Moto Corp. v. ITT Commercial Finance Corp., 806 S.W.2d 560 (Tex. App.--Dallas 1990, writ denied). There, evidence was sufficient to support attorneys’ fee award, even though appellee’s evidence as to attorneys’ fees failed to specifically identify legal assistants or their qualifications. Id. at 571. Appellant failed to specifically object to the jury instruction or request an instruction that the jury could only include the legal assistant’s time if the evidence established the legal assistant’s qualifications, that they performed substantive legal work under an attorney’s supervision, the nature of the work they performed, their hourly rate, and the number of hours they expended on the work. Id. See Gill Savings, 759 S.W.2d at 702. V. A. TIPS AND TRICKS Affidavit Section 18.001 of the Texas Civil Practice and Remedies Code provides that an affidavit indicating that the amount a person charged for a service was reasonable at the time and place that the service was provided and that the service was necessary is sufficient evidence to support a finding of fact by a judge or jury that the amount charged was reasonable or that the service was necessary. The party offering the affidavit in evidence or the party’s attorney must file the affidavit with the clerk of the court and serve a copy of the affidavit on each other party to the case at least 30 days before the day on which evidence is first presented at the trial of the case. TEX. CIV. PRAC. & REM. CODE § 18.001(d) A party intending to controvert a claim reflected by the affidavit must file a counteraffidavit with the clerk of the court and serve a copy of the counteraffidavit on each other party or the party’s attorney of record not later than 30 days after the day he receives a copy of the affidavit; and at least 14 days before the day on which evidence is first presented at the trial of the case; or with leave of the court, at any time before the commencement of evidence at trial. TEX. CIV. PRAC. & REM. CODE § 18.001(e). The form of the affidavit is set forth in section 18.002. An advantage to this is you will know in advance whether the reasonableness of your fee will be challenged. The disadvantage is that if it is not challenged, it is established as a matter of law and you will not be able to comment on your opponent’s unreasonable behavior. B. Attorney’s Fees a Jury Issue? The jury’s determination as to what is a reasonable and necessary fee for the attorney is binding on the court. Lawrence v. Boles, 631 S.W.2d 764, 768 (Tex. App.-15

What is Still Needed When requesting attorney’s fees at the final hearing, be sure to include an estimate of the hours involved in preparing and reviewing the final order, a qualified domestic relations order, medical child support order, income withholding order and any other necessary closing documents. 6. Legal Assistants Consider the same factors when proving up your legal assistant’s fee. See Gill Savings, 759 S.W.2d at 702; Clary Corp. v. Smith, 949 S.W.2d 452, 469 (Tex. App.--Fort Worth, 1997, pet. denied). In Gill Savings, the court held that compensation for legal assistant’s work may be separately assessed and included in award of attorney fees if legal assistant performs work that has traditionally been done by any attorney. Id. at 702. To recover compensation for legal assistant’s work, you must present evidence establishing that legal assistant is: 1. Qualified through education, training or work experience to perform substantive legal work; 2. That substantive legal work was performed under direction and supervision of attorney; 3. The nature of legal work which was performed; 4. The hourly rate being charged for legal assistant; and 5. The number of hours expended by legal assistant.

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Tyler 1981, no writ). However, whether or not the fee should be awarded to the attorney is only advisory and the court need not submit it to a jury. The trial court was not bound to award anything as attorneys’ fees. See Killpack v. Killpack, 616 S.W.2d 434, 437 (Tex. Civ. App.--Fort Worth 1981, writ ref’d n.r.e.). There is no set of Pattern Jury Charge Instructions regarding advisory opinions. However, Texas Pattern Jury Charges--Family sets out the factors and proposed jury questions. Is it a good idea to have a jury decide the issue of reasonable attorney’s fees? NO. Jurors may have a biased view of what reasonable means. Attorneys already have a bad reputation with the public, so it is likely that most jurors will be hard to win over. Factor in the bad behavior by a party or a attorney, and it is huge gamble to put this issue to a jury. If it does become a jury issue, and it relates to the bad acts of the other party or his or her attorney, consider offering testimony early on in the trial as to the work you had to do in the case. Do not forget to testify as to appellate fees. C. Segregating Your Fees for an Appeal A trial court may award attorney’s fees in a suit affecting the parent-child relationship. TEX. FAM. CODE § 106.002. A trial court may also apportion attorney’s fees in a divorce action as part of a just and right division of property. Capellen v. Capellen, 888 S.W.2d 539, 54445 (Tex. A pp.--El Paso 1994, writ denied). The award of attorney’s fees in a divorce action not involving the parent-child relationship cannot exceed the value of the community property at issue before the trial court. Chiles, 779 S.W.2d at 129. The failure to apportion the fees among claims does not automatically preclude the recovery of attorneys’ fees. Gill Savings, 759 S.W.2d at 705-06. However, as a matter of practice, it is a good idea to apportion the expenses for an appeal—how much the child custody part of the appeal will cost and how much the divorce/property of the appeal will cost. See Appendix C. D. Rule for Costs Rule 143 of the Texas Rules of Civil Procedure entitled “Rule For Costs” states: A party seeking affirmative relief may be ruled to give security for costs at any time before final judgment, upon motion of any party, or any officer of the court interested in the costs accruing in such suit, or by the court upon its own motion. If such rule be entered against any party and he failed to comply therewith on or before twenty (20) days after notice that such rule has been entered, the claim for affirmative relief of such party shall be dismissed. Rule 143 authorizes the trial court to require a party to post security for costs that have accrued, but does not authorize the trial court to fix a specific amount of a bond for anticipated costs of the trial. See Johnson v.
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Smith, 857 S.W.2d 612, 615 (Tex. App.--Houston [1st Dist.] 1993, orig. proceeding); Mosher v. Tunnell, 400 S.W.2d 402, 403 (Tex. Civ. App.--Houston [1st Dist.] 1966, writ ref’d n.r.e.). A review of case law seems to indicate that under Rule 143, attorney’s fees are a part of costs. See, e.g., Ex Parte Hightower, 877 S.W.2d 17, 21 (Tex. App.--Dallas 1994, writ dism’d w.o.j.); Shirley, 768 S.W.2d at 433. This may be helpful to ad litems or amicus attorneys. In theory, this might be useful in a case in which one side is pursuing the case in bad faith. A trial court may authorize an amount equal to the amount movant has spent so far in the case. The movant’s goal is a forced settlement because of the money that needs to be deposited (generally into the registry of the court). In the event the movant wins the case, the trial court may turn over these monies to the movant. The author has had this work on a couple of occasions. In practice, trial courts are reluctant to grant such a motion. Do you dismiss a case involving children when a party cannot comply with Rule 143? What if the other party files the same motion? Rule 143 may be useful in very limited instants, so evaluate your case carefully. VI. CONCLUSION Most attorneys do not put much thought into asking for attorney’s fees. However, with some planning and the information contained in this article, you can convince the trial court or jury that awarding your client attorney’s fees is the fair, right, and just thing to do.

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APPENDIX A

80R1895 MCK-F By: Harris S.B. No. 433

A BILL TO BE ENTITLED AN ACT relating to attorney’s fees in certain postjudgment proceedings. BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Section 9.014, Family Code, is amended to read as follows: Sec. 9.014. ATTORNEY’S FEES. The court may award reasonable attorney’s fees [as costs] in a

proceeding under this subchapter. The court may order the attorney’s fees to be paid directly to the attorney, who may enforce the order for fees in the attorney’s own name by any means available for the enforcement of a judgment for debt. SECTION 2. Subchapter B, Chapter 9, Family Code, is amended by adding Section 9.106 to read as follows: Sec. 9.106. ATTORNEY’S FEES. The court may award reasonable attorney’s fees in a proceeding under this subchapter. The court may order the attorney’s fees to be paid directly to the attorney, who may enforce the order for fees in the attorney’s own name by any means available for the enforcement of a judgment for debt. SECTION 3. Section 9.205, Family Code, is amended to read as follows: Sec. 9.205. ATTORNEY’S FEES. In a proceeding to divide property previously undivided in a decree of divorce or annulment as provided by this subchapter, the court may award reasonable attorney’s fees [as costs]. The court may order the attorney’s fees to be paid directly to the attorney, who may enforce the order in the attorney’s own name by any means available for the enforcement of a judgment for debt. SECTION 4. The changes in law made by this Act apply only to a proceeding commenced under Chapter 9, Family Code, on or after the effective date of this Act. A proceeding commenced under Chapter 9, Family Code, before the effective date of this Act is governed by the law in effect immediately before that date, and the former law is continued in effect for that purpose. SECTION 5. This Act takes effect September 1, 2007.

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BILL ANALYSIS

Senate Research Center 80R1895 MCK-F

S.B. 433 By: Harris Jurisprudence 2/27/2007 As Filed

AUTHOR’S / SPONSOR’S STATEMENT OF INTENT Current law does not authorize the court to award reasonable attorney’s fees in a case regarding a post-decree qualified domestic relations order. As proposed, S.B. 433 adds Section 9.106 to the Family Code. This allows a court presiding over a post-decree qualified domestic relations order to award reasonable attorney’s fees incurred by a party in a divorce or annulment proceeding. The court is authorized to order the payments to be made directly to the attorney and the order is enforceable by any means available for the enforcement of a debt. RULEMAKING AUTHORITY This bill does not expressly grant any additional rulemaking authority to a state officer, institution, or agency. SECTION BY SECTION ANALYSIS SECTION 1. Amends Section 9.014, Family Code, as follows: 9.014. ATTORNEY’S FEES. Authorizes the court to award reasonable attorney’s fees, rather than attorney’s fees as costs, in a proceeding under this subchapter (Post-Decree Qualified Domestic Relations Order). SECTION 2. Amends Subchapter B, Chapter 9, Family Code, by adding Section 9.106, as follows: 9.106. ATTORNEY’S FEES. Authorizes the court to award reasonable attorney’s fees in a proceeding under this subchapter. Authorizes the court to order the fees to be paid directly to the attorney, who may enforce such order in the attorney’s name by available means for the enforcement of a judgment of debt. SECTION 3. Amends Section 9.205, Family Code, to make a conforming change. SECTION 4. Makes application of this Act prospective. SECTION 5. Effective date: September 1, 2007.

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ATTORNEY’S FEES

Chapter 2.2

APPENDIX B CAUSE NO. _____________________________ IN THE MATTER OF THE MARRIAGE OF JANE DOE AND JOHN DOE AND IN THE INTEREST OF LITTLE DOE A CHILD § IN THE DISTRICT COURT OF

§

TARRANT COUNTY, TEXAS

§

_______ JUDICIAL DISTRICT

PETITIONER=S ATTORNEYS= FEES EXHIBIT Attorneys= Fees: Name Robert T. Stites Rate $300.00/hour Statement Date 10/19/05 10/26/05 11/16/05 11/29/05 02/08/06 03/01/06 04/06/06 05/04/06 05/25/06 06/29/06 07/26/06 Total $ 4,085.00 2,970.00 2,310.00 3,450.00 1,050.00 1,080.00 1,830.00 780.00 390.00 480.00 150.00 $18,575.00 $ 320.00 112.00 80.00 32.00 416.00 960.00

Associate Attorney

$160.00/hour

10/19/05 11/16/05 11/29/05 02/08/06 03/01/06

$ Paralegal $ 90.00/hour 10/19/05 10/26/05 11/16/05 11/29/05 02/08/06 03/01/06 04/06/06 06/29/06 $

63.00 81.00 270.00 900.00 18.00 36.00 90.00 9.00 $ 1,467.00 $ $ 72.00 99.00 171.00

Legal Assistant

$ 90.00/hour

10/19/05 02/08/06

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Expenses Incurred: Court Costs Photocopy Postage Certified Mail Telecopier Long Distance $ 150.00 298.80 45.84 48.47 57.00 .56 600.67

$ Payments Received: 10/05/05 11/01/05 12/13/05 12/14/05 03/06/06 05/08/06

$ 7,565.00 6,626.47 1,520.35 2,000.00 3,278.84 3,500.00 $24,490.66

Summary: Attorney=s Fees - Robert T. Stites Attorney=s Fees - Associate Attorney Attorney=s Fees - Paralegal Attorney=s Fees - Legal Assistant Subtotal (Attorneys= Fees): Expenses Subtotal (Attorneys= Fees and Expenses): Less Payments Received CREDIT BALANCE PURSUANT TO 07/26/06 BILLING STATEMENT: Preparation for Trial (RTS - 10.0 hours) Preparation for Trial (PL/LA - 20.0 hours) Court Appearance for Trial (RTS - 18.0 hours) Post-Trial (RTS - 5.0 hours) $18,575.00 960.00 1,467.00 171.00 $21,173.00 600.67 $21,773.67 - 24,490.66 [$ $ $ $ $ 2,716.99] 3,000.00 1,800.00 5,400.00 1,500.00

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APPENDIX C CAUSE NO. _____________________________ IN THE MATTER OF THE MARRIAGE OF JANE DOE AND JOHN DOE AND IN THE INTEREST OF LITTLE DOE A CHILD § IN THE DISTRICT COURT OF

§

TARRANT COUNTY, TEXAS

§

_______ JUDICIAL DISTRICT

MOTION FOR TEMPORARY ORDERS PENDING APPEAL Comes now Petitioner, JANE DOE, and for this, her Motion for Temporary Orders Pending Appeal brought pursuant to Sections 6.709(a) and 109.001(a) of the Texas Family Code, would show to the Court as follows: 1. This Court signed its Final Decree of Divorce on October 1, 2006.

2. This Court retains jurisdiction to render and enforce this temporary order pursuant to Sections 6.709(a) and 109.001(a) of the Texas Family Code. This motion is brought within thirty days of the date the appeal was perfected. 3. Temporary orders pending appeal are necessary to preserve and protect the safety and welfare of the children, to provide for the support of the child and the parties, to preserve the property, and to award the use of the parties’ residence pending appeal. 4. Petitioner requests that the Court enter orders with regard to the children consistent with the Final Decree of Divorce, including: a. b. c. d. e. Making appropriate orders for the conservatorship of the child. Defining the terms and conditions of access and possession of the child. Requiring payment of proper guideline temporary child support. Restraining Respondent from disturbing the peace of the child or Petitioner. Prohibiting Respondent from removing the child from Tarrant County or a geographical area identified by the Court. Requiring Respondent to pay reasonable attorney’s fees and expenses to Petitioner.

f.

5. Petitioner requests that the Court enter orders with regard to the property of the parties consistent with the Final Decree of Divorce, including: a. Awarding Petitioner the exclusive use and possession of the parties’ residence pending appeal. Requiring Respondent to pay reasonable attorney’s fees and expenses to Petitioner.

b.

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7. Petitioner further requests that Respondent be required to pay reasonable attorney’s fees and expenses to Petitioner. Respondent is appealing the Final Decree of Divorce. Petitioner believes that all the issues will be related to the safety and welfare of the child and the division of the marital estate. Petitioner suggests $20,400.00 as a reasonable attorney’s fee concerning the underlying appeal as follows: Issue: Appeal of Issues Related to the Child Robert T. Stites, Attorney at Law (@ $300.00 per hour) Review of transcript, reporter’s record, pleadings, related documents filed with court; review of exhibits: Research legal authority on issues of appeal; research application of legal authority to case: Review and analyze Appellant’s brief; review of cases, statutes and authorities cited by Appellant: Write Appellee’s brief; preparation of table of of citations; revise and edit: Prepare and present oral argument: Sub Total: Hours Amount

2.0

$

600.00

10.0

3,000.00

7.5

2,250.00

16.0 2.0 37.5

4,800.00 600.00 $11,250.00

Issue: Appeal of Issues Related to Property Division/Marital Estate Robert T. Stites, Attorney at Law (@ $300.00 per hour) Review of transcript, reporter’s record, pleadings, related documents filed with court; review of exhibits: Research legal authority on issues of appeal; research application of legal authority to case: Review and analyze Appellant’s brief; review of cases, statutes and authorities cited by Appellant: Write Appellee’s brief; preparation of table of of citations; revise and edit: Prepare and present oral argument: Sub Total: Total: Hours Amount

1.0

$

300.00

10.0

3,000.00

5.5

1,650.00

12.0 2.0 30.5 68.0

3,600.00 600.00 $9,150.00 $20,400.00

8. Petitioner prays that she have such other and further relief consistent with Section Sections 6.709 and 109.001 of the Texas Family Code and any other relief to which she is entitled at this time. Petitioner prays that she be awarded attorney’s fees and such other orders necessary to protect the safety and welfare of the child and protect the marital estate pending appeal. PRAYER WHEREFORE, PREMISES CONSIDERED, Petitioner prays the Court render temporary orders consistent with this request and grant to her such other and further relief to which she might show herself justly entitled.
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