Attorney’s Fees Awarded in Modification Suit Characterized as Child Support

On December 20, 2011, the 14th Court of Appeals, Houston, sitting en banc, filed its opinion in Tucker v. Thomas, 2011 Tex. App. LEXIS 9991.  The court of appeals held that a trial court in a non-enforcement modification suit has jurisdiction and authority to order payment of attorney’s fees as additional child support to the other parent, an amicus attorney, attorney ad litem, or guardian ad litem.  Id. at *46.  The opinion is significant because it would enable parties in modification suit who are awarded attorney’s fees to have those attorney’s fees characterized as child support and thus have a very real chance to collect those fees.  Because of the significance of this decision and because this case conflicts with the decisions of other appellate courts, it is no surprise that on March 5, 2012, the appellant filed a petition for review by the Texas Supreme Court.

In Tucker, the appellant argued that that in a modification suit in which the trial court does not order a party to pay a past-due child-support obligation, the trial court has no authority to order payment of attorney’s fees to a parent or amicus attorney as additional child support.  It has long been clear that a party in an enforcement suit may have an award of attorney’s fees characterized as child support.  Tex. Fam. Code § 157.167(a), (b).  While a party may be awarded attorney’s fees in a purely modification suit under Family Code section 106.002, a judgment for attorney’s fees under that section may only be enforced by any means available for the enforcement of a judgment for debt.  Tex. Fam. Code 106.002(b).

The court of appeals noted that the appellee had asked for an increase in child support, the trial court had granted that request, and that the trial court clearly had the authority to award that increase in support.  The appellate court then looked to each parent’s statutory duty to support his or her child under Family Code section 151.001(a) and the liability of any parent who fails to discharge the duty of support to a person who provides necessaries to those to whom support is owed under Family Code section 151.001(c).  The court looked back and found that for more than century Texas courts have held that reasonable attorney’s fees incurred for the benefit of a minor may constitute necessaries, with the Texas Supreme Court reaffirming that legal principle as recently as in In re H.V., 252 S.W.3d 319, 327, n.55 (Tex. 2008). 

The court of appeals looked to several cases which found the trial court in a non-enforcement modification suit had authority to order a parent to pay reasonable attorney’s fees as child support under the “necessaries rule.”  The court stated that the statutory basis for these holdings reflects a strong legislative policy of arming the court of continuing jurisdiction with the judicial tools to ensure that parents are held accountable in child support for necessaries furnished for the benefit of their children.  The court observed that the Family Code contains numerous provisions in which the Legislature grants the trial judge wide latitude in crafting orders to meet the needs of children and families. 

Finally, the court noted that the statutes it interpreted did not expressly prohibit a trial court from ordering a parent to pay reasonable attorney’s fees for legal services benefitting the children as additional child support.  The court interpreted the absence of a prohibition as a sign that

the Legislature intended that in non-enforcement modification suits, the trial court is vested with the power and authority to determine whether a parent should be ordered to pay, as additional child support, reasonable attorney’s fees for legal services benefitting the children. The overall statutory scheme of the Family Code makes clear that the Texas Legislature has entrusted broad discretion to the family court judge and when the Legislature seeks to limit or restrict that discretion, the Legislature generally says so. Under this regime, silence does not indicate prohibition but rather permission.

Tucker, 2011 Tex. App. LEXIS 9991 at *23.  The court also stated that similarly, the Family Code has not restricted the taxation of fees as child support to the enforcement context.  Id. at 29-30.

It will be interesting to see if the Texas Supreme Court agrees to review Tucker.  If Tucker is affirmed by the Supreme Court, we may see more parties seeking attorney’s fees in modification suits as there will be a realistic means of recovering those fees.

This column is published for informational purposes only. It should not be construed as legal advice and is not intended to create an attorney client relationship. The views expressed are those of the author and do not necessarily reflect the views of the author’s law firm or its individual partners.


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