Opinion
No. 04-18-00918-CV
09-30-2020
In the INTEREST OF Z.O.M. and K.R.M., Children
Under Texas Rule of Appellate Procedure 47.2, this Opinion constitutes the opinion of the court as to the "Appellate Jurisdiction & Appellate Sanctions" section. See Tex. R. App. P. 47.2(a). Otherwise, because no opinion has been approved by a majority of panel as to any other part, there is no other majority opinion of the court.
OPINION ON MOTION FOR REHEARING
Opinion by: Luz Elena D. Chapa, Justice
Appellee's motion for rehearing is denied. On the Court's own motion, the prior Opinion and judgment are withdrawn, and today's Opinion and judgment are substituted in their stead.
Stephen Matthews and the Bexar County Domestic Relations Office (DRO) appeal an award of attorney's fees against Matthews in the amount of $17,702. The award was rendered in a child-custody enforcement action the DRO filed against Matthews's ex-wife, Melody Morrison. Morrison argues this court lacks appellate jurisdiction and seeks appellate sanctions. The court reverses the award of attorney's fees, renders a take-nothing judgment on Morrison's request for attorney's fees, and denies Morrison's request for appellate sanctions.
BACKGROUND
Matthews and Morrison were divorced in 2010. At that time, Matthews and Morrison had two children, Z.O.M. and K.R.M. The divorce decree contained a modified standard possession order appointing Matthews and Morrison as joint managing conservators. The modified standard possession order was later amended, but Matthews and Morrison remained joint managing conservators. Matthews was ordered to pay child support.
A. The Pleadings
In 2018, under its statutory authority, the DRO filed a motion on its own behalf to enforce the possession order. See TEX. FAM. CODE § 203.004(a)(3)(B). In its amended motion, the DRO alleged thirty-five instances in which Morrison failed to comply with the possession order, and sought to enforce the order through contempt. The DRO named Morrison as the sole respondent. Matthews was not a party to the DRO's motion to enforce.
Morrison filed an answer, seeking a denial of the DRO's motion to enforce. At the end of her answer, Morrison moved for sanctions under Texas Rule of Civil Procedure 13 and Chapter 10 of the Texas Civil Practice & Remedies Code. Morrison sought sanctions against not only the DRO, but also Matthews, based on the allegations in the DRO's motion.
B. The Hearing on the DRO's Motion to Enforce & Final Order
At the hearing on the DRO's motion to enforce, Morrison's counsel testified about attorney's fees. At the close of the hearing, the trial court denied the DRO's motion to enforce, and ruled Morrison, as the prevailing party, would recover her attorney's fees from Matthews, not the DRO. The trial court signed a final order, denying the DRO's motion and rendering judgment in favor of Morrison and against Matthews for $17,702 in attorney's fees. The order does not specify the basis for the attorney's fees award.
C. Post-Judgment Proceedings
The DRO filed a motion for new trial, challenging the attorney's fees award on several grounds: (1) the award was an improper sanction; (2) Matthews was not a party to the DRO's motion to enforce; and (3) Matthews was not a party represented by the DRO. The DRO also alleged, for the first time, section 231.211 of the Texas Family Code barred an award of attorney's fees because the action is a Title IV-D case.
Morrison filed a response, arguing the DRO was effectively acting as Matthews's attorney by filing the motion to enforce. She also argued for the first time that section 106.002 of the Texas Family Code authorizes a discretionary award of attorney's fees in actions to enforce a child-custody order. At a hearing on the motion for new trial, the parties disputed the applicability of sections 106.002 and 231.211. The motion was overruled by operation of law. At the DRO's request, the trial court made written findings of fact and conclusions of law. The DRO and Matthews timely filed a joint notice of appeal.
OVERVIEW OF THE ISSUES
Only the award of attorney's fees is challenged in this appeal. In their briefs and at oral argument, the parties have focused primarily on whether the action is a Title IV-D case for which section 231.211 of the Texas Family Code bars an award of attorney's fees. The DRO and Matthews have also raised other issues challenging the attorney's fees award. As previously noted, Morrison argues this court lacks jurisdiction and seeks appellate sanctions.
The panel unanimously agrees this court has appellate jurisdiction and to deny Morrison's motion for appellate sanctions. A majority concurs in the judgment to reverse the attorney's fees award and to render a take-nothing judgment. I would hold the award of attorney's fees against Matthews was improper because he was not a party to the DRO's motion. Because it appears the Title IV-D issue has been the most significant to the parties and in response to the other opinions, I write separately on this issue.
The majority concurring in the judgment are Justice Martinez and myself. Chief Justice Marion would affirm.
APPELLATE JURISDICTION & APPELLATE SANCTIONS
Morrison argues this court lacks jurisdiction because this appeal concerns an order denying a request for contempt. See Norman v. Norman , 692 S.W.2d 655, 655 (Tex. 1985) (per curiam) (holding a contempt order is not reviewable by appeal). However, the DRO and Matthews do not appeal the part of the order denying the DRO's motion to enforce. Because only the attorney's fees award is appealed, this court has appellate jurisdiction. See In re T.L.K. , 90 S.W.3d 833, 841 (Tex. App.—San Antonio 2002, no pet.). Also, because this appeal is not frivolous, Morrison's request for appellate sanctions is denied. See TEX. R. APP. P. 45.
The DRO had standing to file the underlying action to enforce the possession and access order. Tex. Fam. Code § 203.004(a)(3)(B). The suit was also filed under Title V of the Texas Family Code, and "[a]n appeal may be taken by any party to a suit from a final order rendered under this title." Id. § 109.002(b). Under these circumstances, the DRO has standing to appeal the attorney's fees award against Matthews. See In re C.Y.K.S. , 549 S.W.3d 588, 590 (Tex. 2018) (per curiam) (holding a governmental entity has standing to appeal judgment against a parent in a SAPCR under section 109.002(b) when the agency has standing to file the underlying suit).
ATTORNEY'S FEES
The DRO and Matthews argue the trial court erred by awarding attorney's fees against Matthews. They contend: (1) the trial court improperly awarded attorney's fees as a sanction; and (2) section 231.211 of the Texas Family Code bars an attorney's fees award because the action is a Title IV-D case. Morrison disagrees, and argues section 106.002 alternatively supports the award of attorney's fees as a discretionary award available in all suits affecting the parent–child relationship (SAPCRs).
A. Standard of Review
"We review a trial court's award of attorney's fees for an abuse of discretion." Fort Worth Transp. Auth. v. Rodriguez , 547 S.W.3d 830, 850 (Tex. 2018). Under our applicable standard of review, a judgment awarding attorney's fees can "be affirmed on any theory of law applicable to the case and supported by the record." McDowell v. McDowell , 143 S.W.3d 124, 131 (Tex. App.—San Antonio 2004, pet. denied).
B. Awarding Attorney's Fees Against Matthews Was an Abuse of Discretion Because He Was Not a Party to the DRO's Motion to Enforce/SAPCR
In her motion for rehearing, Morrison argues the DRO and Matthews "did not raise the issue of whether Matthews was ... a party to the underlying action." However, the appellants' brief argues the attorney's fees award was improper because Matthews did not sign the motion to enforce and was not represented by the lawyer who signed the motion to enforce. If the DRO and Matthews are correct, then it necessarily follows that Matthews was not a party to the motion to enforce, was not a party to the enforcement action, and was only a party for purposes of Morrison's motion for sanctions. Briefs need not use magic words. See In re I.L. , 580 S.W.3d 227, 235 (Tex. App.—San Antonio 2019, pet. dism'd). Furthermore, Morrison's argument that the attorney's fees award may be affirmed under section 106.002 of the Texas Family Code incorrectly assumes section 106.002 was a theory of law applicable to the case and supported by the record. See McDowell , 143 S.W.3d at 131. Because Morrison did not plead or request attorney's fees under section 106.002 until her response to the motion for new trial, and a discretionary award of attorney's fees was not tried by consent, clearly and separately from her request for attorney's fees as a sanction, our standard of review precludes us from affirming the attorney's fees award under section 106.002, regardless of whether the issue was briefed. See id. Alternatively, section 106.002 did not authorize an attorney's fees award against Matthews.
"Texas has long followed the ‘American Rule’ prohibiting fee awards unless specifically provided by contract or statute." MBM Fin. Corp. v. Woodlands Operating Co., L.P. , 292 S.W.3d 660, 669 (Tex. 2009). An award of attorney's fees is proper against only the parties to a claim for which attorney's fees are available. See Tex. Am. Corp. v. Woodbridge Joint Venture , 809 S.W.2d 299, 302, 304–05 (Tex. App.—Fort Worth 1991, writ denied). Attorney's fees may not be awarded against a person who is not a party to the claim for which attorney's fees are available. Satellite Earth Stations E., Inc. v. Davis , 756 S.W.2d 385, 387 (Tex. App.—Eastland 1988, writ denied).
In Woodbridge , the court of appeals deleted the award of attorney's fees against an individual because he was not a party to the counterclaim for which attorney's fees were available. 809 S.W.2d at 304 ; cf. Berryman's S. Fork, Inc. v. J. Baxter Brinkmann Intern. Corp. , 418 S.W.3d 172, 203 (Tex. App.—Dallas 2013, pet. denied) (deleting award in favor of a party in the suit who was not a party to the specific claim for which attorney's fees were available).
Under Chapter 10 and Rule 13, a trial court may award attorney's fees as a sanction against the person who has signed a pleading, "a party represented by the person, or both." TEX. CIV. PRAC. & REM. CODE § 10.004(a) ; TEX. R. CIV. P. 13 ; Citibank, N.A. v. Estes , 385 S.W.3d 671, 675 (Tex. App.—Houston [14th Dist.] 2012, no pet.). A trial court abuses its discretion by awarding Chapter 10 or Rule 13 sanctions against any other person. Estes , 385 S.W.3d at 675. Because Matthews was not a party to the DRO's motion to enforce or the lawyer who signed the motion, which is the only pleading upon which Morrison sought sanctions, Chapter 10 and Rule 13 cannot support an award of attorney's fees.
At the hearing, the DRO's attorney announced she was the DRO's attorney of record. The trial court then asked the DRO's attorney, "And you represent?" The DRO's attorney responded, "On behalf of Stephen Matthews." Viewed in isolation, counsel's response appears to suggest she was also counsel for Matthews. Because counsel had just stated she was the DRO's attorney, it appears from context that, by "you," the trial court was referring to the DRO, and asking whose interests the DRO was representing in the enforcement action, which was a public suit to enforce a child custody order. See Tex. Fam. Code § 203.004(a)(3)(B). The trial court also was presumably aware the DRO lacked authority to act as Matthews' counsel in the case. See id. § 203.004(a). While it is also possible Matthews retained the DRO's attorney, in her individual capacity, to represent him and respond to the motion for sanctions, the issue is whether the DRO's attorney was acting as counsel for Matthews when she signed the motion to enforce. Nothing in the record establishes she was.
Although section 106.002 expressly provides a trial court may order an award of attorney's fees and expenses "in" a SAPCR, no part of section 106.002 specifically provides attorney's fees may be awarded against a person who is not a party in the SAPCR. TEX. FAM. CODE § 161.002(b). Thus, under the American Rule, attorney's fees may not be awarded against a nonparty to the SAPCR under section 106.002. See MBM Fin. Corp. , 292 S.W.3d at 669. Although this court has stated section 106.002 "does not designate to which party fees may be awarded, nor does it limit the trial court's designation" (emphasis added), this court in In re R.E.S. did not hold that a trial court's discretion is so unfettered that it may render an award of attorney's fees against a nonparty . See 482 S.W.3d 584, 586 (Tex. App.—San Antonio 2015, no pet.) (emphasis added).
Texas "courts have long held that a ‘party’ is one by or against whom a suit is brought while all others who may be incidentally or consequentially affected were ‘persons interested’ but not parties." In re E.L.P. , 636 S.W.2d 579, 581 (Tex. App.—San Antonio 1982, no writ). Although parents of a child may be "persons interested" in a SAPCR involving the child, the child's parents are not automatically parties to the case. See Tristan v. Castillo , Nos. 04-05-00658-CV, 04-06-00041-CV, 2007 WL 752203, at *2 (Tex. App.—San Antonio Mar. 14, 2007, no pet.) (mem. op.). "In Gunn , the biological father of a child was neither named a party to an adoption proceeding nor issued citation. The Supreme Court denied his writ of error because he was not a party to the proceedings below, and the exception of virtual representation did not apply." Id. (footnote omitted) (discussing Gunn v. Cavanaugh , 391 S.W.2d 723 (Tex. 1965) ). Matthews was an interested person for purposes in the SAPCR, but he was not party "in" the SAPCR. The virtual representation doctrine also does not apply because the DRO is not bound by the attorney's fees judgment, and the record does not establish any privity of estate, title, or interest between Matthews and the DRO. See BASF Fina Petrochemicals Ltd. v. H.B. Zachry Co. , 168 S.W.3d 867, 870 (Tex. App.—Houston [1st Dist.] 2004, pet. denied). Section 106.002 does not support the attorney's fees award against Matthews.
Matthews was not a party to the DRO's motion to enforce or a party "in" the SAPCR. Although the parties dispute whether the trial court awarded attorney's fees as a sanction under Chapter 10 and Rule 13, or as a discretionary award under section 106.002, this dispute is immaterial because each provision authorizes attorney's fees only against a party or the party's attorney. By awarding attorney's fees against Matthews, who is not a party to the motion to enforce or in the SAPCR or any party's lawyer, the award of attorney's fees against Matthews was an abuse of discretion. See Estes , 385 S.W.3d at 675.
C. The Title IV-D Issue
The parties have primarily disputed whether Texas Family Code section 231.211 barred the attorney's fees award against Matthews because the action is "a Title IV-D case." Section 231.211 provides:
At the conclusion of a Title IV-D case , the court may assess attorney's fees and all court costs as authorized by law against the nonprevailing party, except that the 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.
TEX. FAM. CODE § 231.211(a) (emphasis added). This court appears to be presented with two extreme options of holding a child-custody enforcement action filed by a DRO is either always a Title IV-D case or never a Title IV-D case.
It appears that whether a child-custody enforcement action filed by a DRO is a Title IV-D case depends on the circumstances. An action is a Title IV-D case if the "action relate[s] to the services ... authorized ... under Section 231.101." TEX. FAM. CODE § 101.034. Section 231.101 authorizes "all" Title IV-D services:
The "Title IV-D agency" must be the entity providing services, but when the DRO is providing Title IV-D services, the DRO is considered the Title IV-D agency. See In re Office of Atty. Gen. , 422 S.W.3d 623, 625 n.1 (Tex. 2013, orig. proceeding). Thus, this issue ultimately turns on whether the DRO was providing authorized Title IV-D services in this case. See id. ; see Tex. Fam. Code § 231.211(a).
(a) The Title IV-D agency may provide all services required or authorized to be provided by [Title IV-D] of the federal Social Security Act ( 42 U.S.C. Section 651 et seq. ), including :
(1) parent locator services;
(2) paternity determination;
(3) child support, medical support, and dental support establishment;
(4) review and adjustment of child support orders;
(5) enforcement of child support, medical support, and dental support orders; and
(6) collection and distribution of child support payments.
Id. § 231.101(a) (emphasis added). Although section 231.101 "includ[es]" six specific services, "includes" is a "term of enlargement, not of limitation," and section 231.101 plainly authorizes "all" services authorized by Title IV-D. Id. ; In re E.C.R. , 402 S.W.3d 239, 246 n.6 (Tex. 2013). Title IV-D, in turn, authorizes state programs that "facilitate noncustodial parents' access to and visitation of their children, by means of ... visitation enforcement." 42 U.S.C. § 669b(a), (e).
Title IV-D's visitation enforcement services are part of a federal grant program in which states receive funds to enforce child support obligations. See id. § 651. Congress adopted this Title IV-D grant program in the 1996 Personal Responsibility & Work Opportunity Reconciliation Act of 1996, PL 104-193, 110 Stat 2105 (Aug. 22, 1996). Although Title IV-D is primarily focused on child support enforcement, child support enforcement and access and visitation programs are heavily intertwined. Child Support Enforcement Program; Grants to States for Access and Visitation Programs: Monitoring, Evaluation, and Reporting , 63 FED. REG. 15351-01 (proposed Mar. 31, 1998), 1998 WL 140546 (codified at 45 C.F.R. § 303.109).
"Consistent with federal law," Texas has also authorized the Office of the Attorney General (OAG), Texas's Title IV-D agency, to execute governor-approved agreements with other governmental entities "to enforce an order providing for possession of or access to a child" using Title IV-D grant funds for visitation enforcement. TEX. FAM. CODE § 231.002(d). Texas law further authorizes the OAG to "enter into agreements or contracts with federal, state, or other public or private agencies or individuals for the purpose of carrying out the agency's responsibilities under federal or state law." Id. § 231.002(c). The clear purpose of section 231.211 is to ensure federal Title IV-D funds are used for "wide-ranging involvement in Title IV-D litigation," not for awards of attorney's fees and court costs. See C.Y.K.S. , 549 S.W.3d at 592.
The U.S. Office of the Administration of Children & Families has ruled, "Attorneys' fees for ... defending child support obligors or accused [parents] serves no legitimate IV-D purpose, and therefore, funding for such costs is not an allowable IV-D expense." Final Rule: Prohibition of Federal Funding for Costs of Guardians Ad Litem in IV-D Actions , AT-92-10, Nov. 20, 1992, https://www.acf.hhs.gov/css/resource/final-rule-prohibition-federal-funding-costs-of-guardians-ad-litem.
Not all counties are required to have an agreement with the OAG under which the county's DRO provides services under Title IV-D. See TEX. FAM. CODE § 203.005(a)(2). Even without such an agreement and without Title IV-D grant funds for visitation enforcement, a DRO may "file a suit [to] enforce a court order for ... possession of and access to a child." See id. § 203.004(a)(3). Such services may be funded by funds from fees and county appropriations, rather than Title IV-D grant funds pursuant to a contract with the OAG. See id. §§ 203.005(a), 203.006(a) – (c).
Whether a child-custody enforcement action filed by a DRO is a Title IV-D case appears to depend on whether the DRO's county has entered into a contract with the OAG authorizing the county to provide visitation enforcement services under Title IV-D. See id. §§ 231.002(c), 231.211(a). Because a party may rely on evidence of a contract with the OAG to avoid liability for attorney's fees in some cases, and the existence of such a contract need not be proved to obtain attorney's fees under section 106.002, Chapter 10, or Rule 13, the DRO had the burden to establish the action was a Title IV-D case at or before the merits hearing. See TEX. R. CIV. P. 94 ; Zorrilla v. Aypco Constr. II, LLC , 469 S.W.3d 143, 157 (Tex. 2015). The DRO raised this issue for the very first time in its motion for new trial.
The DRO presented no evidence of a contract with the OAG at the motion for new trial hearing, and asks this court to take judicial notice of OAG webpages appearing to show the DRO provides Title IV-D visitation enforcement. But "appellate courts are reluctant to take judicial notice of matters that go to the merits of a dispute." Creaven v. Creaven , 551 S.W.3d 865, 872 (Tex. App.—Houston [14th Dist.] 2018, no pet.). Although I cannot say the trial court erred by rejecting the DRO's argument that section 231.211(a) bars an award of attorney's fees, the award of attorney's fees remains improper because Matthews was not a party to the DRO's motion and SAPCR.
CONCLUSION
This court reverses the award of attorney's fees against Matthews and renders a take-nothing judgment on Morrison's request for attorney's fees. Morrison's motion for appellate sanctions is denied. This court does not disturb the part of the trial court's order denying the DRO's motion to enforce.
Although Matthews and the DRO ask that we remand in the interests of justice, Morrison makes no similar request. See Tex. R. App. P. 38.1(i). The trial court made no findings that would otherwise support an award of attorney's fees under any statute, and the final order reflects the trial court purposefully deciding against awarding attorney's fees against the DRO.
CONCURRING AND DISSENTING OPINION
Concurring and Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
I withdraw my Concurring and Dissenting Opinion dated April 1, 2020 and substitute this opinion in its stead. Because I would hold (1) this is not a Title IV-D case in which Family Code section 231.211 applies, and (2) the trial court was within its discretion to award attorney's fees pursuant to Family Code section 106.002, I respectfully dissent. I believe the unfortunate result of the Opinion and the Concurring Opinion is to permit a parent who clearly is not indigent to utilize the free services of a domestic relations office to assert claims in a custody dispute without bearing any responsibility for the responding parent's attorney's fees if the trial court, in its discretion, determines the claims are without merit.
I refer to Justice Luz Elena Chapa's opinion issued this date as the Opinion and Justice Rebeca Martinez's opinion issued April 1, 2020 as the Concurring Opinion.
Family Code Section 231.211 Does Not Apply
Appellant the Bexar County Domestic Relations Office ("the DRO"), as "Intervenor," filed a motion to enforce an order for possession and access against appellee Melody Morrison in a suit affecting the parent-child relationship. At the hearing on the motion, the DRO's counsel announced her appearance "on behalf of" appellant Stephen Matthews. The trial court denied the motion and ordered Stephen to pay Melody's attorney's fees incurred defending against the motion. The DRO and Stephen jointly appeal the attorney's fees award.
In their primary issue, appellants argue Family Code section 231.211 precludes an award of attorney's fees in this case. Section 231.211 provides, in pertinent part:
At the conclusion of a Title IV-D case, the court may assess attorney's fees and all court costs as authorized by law against the nonprevailing party, except that the 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....
TEX. FAM. CODE ANN. § 231.211(a). Applying section 231.211 to this case, appellants argue: (1) this case is a Title IV-D case; (2) the Office of the Attorney General ("OAG") is a Title IV-D agency that delegated its Title IV-D authority to the DRO; and (3) Stephen is a "party to whom the [Title IV-D] agency has provided services." In response, Melody argues section 231.211 does not apply because this is not a Title IV-D case. I agree this is not a Title IV-D case.
The Family Code defines "Title IV-D case" as:
an action in which services are provided by the Title IV-D agency under Part D, Title IV, of the federal Social Security Act ( 42 U.S.C. Section 651 et seq. ), relating to the location of an absent parent, determination of parentage, or establishment, modification, or enforcement of a child support, medical support, or dental support obligation, including a suit for modification filed by the Title IV-D agency under Section 231.101(d) and any other action relating to the services that the Title IV-D agency is required or authorized to provide under Section 231.101.
Id. § 101.034. Section 231.101 lists the "Title IV-D Child Support Services" a Title IV-D agency may provide, which include: "(1) parent locator services; (2) paternity determination; (3) child support, medical support, and dental support establishment; (4) review and adjustment of child support orders; and (5) collection and distribution of child support payments." Id. § 231.101. Section 231.101(d) provides:
The Title IV-D agency may review a support order at any time on a showing of a material and substantial change in circumstances, taking into consideration the best interests of the child. If the Title IV-D agency determines that the primary care and possession of the child has changed, the Title IV-D agency may file a petition for modification under Chapter 156.
Id.
The statute's plain language, therefore, defines "Title IV-D case" as including actions relating to: (1) location of an absent parent, (2) determination of parentage, and (3) establishment, modification, or enforcement of a child support, medical support, or dental support obligation. See id. § 101.034. While section 231.101(d) permits a Title IV-D agency to seek modification of possession and access in a case involving a child support order, the statute plainly does not permit a Title IV-D agency to intervene in a suit affecting the parent-child relationship solely to seek enforcement of an order for possession and access. Here, it is undisputed the enforcement of a child support order was not an issue.
The supreme court has held that because a "Title IV-D case" includes any "action" in which the OAG is providing services related to child support establishment, modification, or enforcement, and "action" is synonymous with "suit," a suit in which the OAG sought to modify both a child support obligation and conservatorship was a Title IV-D case. Office of the A.G. of Tex. v. C.W.H. , 531 S.W.3d 178, 183 (Tex. 2017) (interpreting prior version of section 101.034 ). Here, in contrast, because no party sought any relief related to child support and the DRO filed a motion to enforce an order for possession and access only, this is not a "Title IV-D case."
Appellants do not dispute that section 231.211's definition of "Title IV-D case" does not reference "possession and access." Rather, they argue we should read section 231.211 in conjunction with Family Code section 231.002 to conclude, as a matter of first impression, that the power to file a motion to enforce possession and access is among the OAG's Title IV-D "powers and duties" that have been delegated to the DRO. I disagree. Nothing in section 231.002's list of a Title IV-D agency's "powers and duties" gives the agency the power to seek enforcement of an order for possession and access. Because the OAG's Title IV-D powers do not include this power, the OAG could not have delegated it to the DRO. Accordingly, section 231.002 does not expand the definition of "Title IV-D case" to include this type of case.
Rather, the Family Code is the source of the DRO's power to "file a suit to ... enforce a court order ... for possession of and access to a child[.]" Tex. Fam. Code Ann. § 203.004(a)(3)(B).
Because the Family Code definition of "Title IV-D case" does not include a motion to solely enforce an order for possession and access, this is not a Title IV-D case. For this reason, I would overrule appellants' first issue and hold section 231.211 does not prohibit the fee award in this case.
Discretionary Award of Fees Under Family Code Section 106.002
In their second and third issues, appellants argue that to the extent the trial court had discretion to award attorney's fees pursuant to Family Code section 106.002, it abused that discretion because: (1) the trial court disregarded Family Code section 231.211 ; (2) the amount of the award is unreasonable; (3) the award is an improper sanction; (4) the trial court misapplied the "prevailing party" analysis; and (5) the evidence is legally and factually insufficient to support the fee award.
Although appellants did not raise the issue, the Opinion holds the trial court abused its discretion in awarding attorney's fees against Stephen because Stephen was not a party in the trial court. For the reasons that follow, I believe Stephen was a party in the trial court and the trial court did not abuse its discretion in awarding fees against him.
A. Stephen was a party in the trial court
Identifying itself as "Intervenor" in this suit affecting the parent-child relationship, the DRO filed a motion, later amended, for enforcement of an order for possession and access. The DRO alleged Melody failed and refused to comply with the possession order by failing to surrender to Stephen the couple's two teenaged children on thirty-five occasions when Stephen was entitled to visitation. Melody retained counsel and filed an answer raising the defenses of inability to comply and voluntary relinquishment by Stephen, as well as requesting sanctions and attorney's fees from both the DRO and Stephen.
Specifically, the prayer of Melody's pleading requests "that the Court deny [the petition for enforcement], that the Court impose[ ] sanctions on [Stephen] and/or [the DRO] in accordance with Rule 13 of the Texas Rules of Civil Procedure and Chapter 10 of the Civil Practice and Remedies Code and that [Melody] recover all attorney's fees, expenses, and costs incurred " (emphasis added). A general request for fees in the prayer of a pleading, such as this one, is sufficient to authorize an award under Family Code section 106.002. Tull v. Tull , 159 S.W.3d 758, 762 (Tex. App.—Dallas 2005, no pet.).
The trial court held a hearing over the course of two days. At the beginning of the hearing, the trial court asked counsel for the DRO whom she represented, and counsel responded: "I'm here on behalf of Stephen Matthews." Stephen also personally appeared and testified during the hearing. The trial court's final order denying the DRO's motion for enforcement states under the heading "Appearances" that "Intervenor, [the DRO]," Melody, and "Petitioner, Stephen O. Matthews" each appeared in person and announced ready for trial (emphasis added).
In light of these facts, I believe Stephen was a party in the trial court. The DRO identified itself in the trial court as an intervenor acting "on behalf of Stephen Matthews." But even if the DRO did not actually represent Stephen, Melody's responsive claims against Stephen were affirmative claims that brought him into the case. A defendant alleges a claim for affirmative relief if she states a cause of action, independent of the plaintiff's cause of action, on which she can recover compensation or relief even if the plaintiff abandons or fails to establish his claims. Tex. Mut. Ins. Co. v. Ledbetter , 251 S.W.3d 31, 38 (Tex. 2008) ; In re C.A.S. , 128 S.W.3d 681, 685–86 (Tex. App.—Dallas 2003, no pet.). For instance, "[a]n affirmative claim, stated in an answer, for recovery of attorney's fees for preparation and prosecution of a defense constitutes a counterclaim." C.A.S. , 128 S.W.3d at 686 (citation omitted). Here, Melody sought affirmative relief against both the DRO and Stephen, and Melody's attorney proved up the fee request without objection or cross-examination by either the DRO or Stephen.
Therefore, because I believe Stephen was party in the trial court, I will briefly address appellants' arguments regarding whether the trial court abused its discretion under Family Code section 106.002 in awarding fees against Stephen. For the reasons described below, I would hold the trial court did not abuse its discretion.
B. The trial court did not abuse its discretion in awarding attorney's fees to Melody
As appellants acknowledge, in a suit affecting the parent-child relationship, the trial court has broad discretion to award attorney's fees pursuant to Family Code section 106.002. Lenz v. Lenz , 79 S.W.3d 10, 21 (Tex. 2002) ; In re R.E.S. , 482 S.W.3d 584, 586 (Tex. App.—San Antonio 2015, no pet.). The trial court does not abuse its broad discretion unless it acts arbitrarily or unreasonably, without reference to guiding rules or principles. R.E.S. , 482 S.W.3d at 586 (citing Iliff v. Iliff , 339 S.W.3d 74, 78 (Tex. 2011) ). Section 106.002 "does not designate to which party fees may be awarded" and does not "limit the trial court's designation." Id.
Appellants first argue the trial court abused its discretion by "disregarding" Family Code section 231.211. Because I would hold section 231.211 does not preclude a fee award in this case for the reasons stated above, I would conclude the trial court did not abuse its discretion by disregarding that provision.
Appellants next argue the fee award, totaling $17,702, is unreasonable in light of Stephen's $54,000 annual salary. To determine a reasonable amount of attorney's fees in a suit affecting the parent-child relationship, trial courts may consider the hours spent on the case, the nature and complexity of the case, the experience of the attorneys, and the prevailing hourly rates in the community. Hardin v. Hardin , 161 S.W.3d 14, 24 (Tex. App.—Houston [14th Dist.] 2004, no pet.) ; accord In re R.H.H. , No. 04-09-00325-CV, 2010 WL 2842905, at *7 (Tex. App.—San Antonio 2010, no pet.) (mem. op.). A trial court is not required to consider the fee obligor's income. See id. Accordingly, assuming the trial court failed to consider Stephen's income in making the award of attorney's fees in this case, I would hold the trial court did not abuse its discretion.
Third, appellants argue that "[s]ince the DRO was the only one that signed the pleadings and there was a finding of no bad faith, the trial court abused its discretion when it awarded attorney's fees as a sanction." I disagree that the fee award was a sanction. The trial court did not characterize the award as a sanction in its ruling on the record, in its order on the motion for enforcement, or in its findings of fact and conclusions of law. Rather, the trial court stated on the record: "I know [Melody's counsel] has requested from the client attorney's fees for bad faith for filing. I don't find any bad faith[.] ... I have to say [Melody] is the prevailing party, so based on that, I'm going to grant the attorney's fees requested in the amount of $17,702 as a judgment." Later, in its findings of fact and conclusions of law, the trial court offered additional, non-sanction bases for its ruling. Accordingly, I would hold the trial court did not award fees as an improper "sanction."
Fourth, relying on this court's opinion in R.E.S. , appellants argue the trial court lacked discretion to award fees to Melody as the "prevailing party." R.E.S. does not preclude an award of fees to the prevailing party. Rather, in upholding an award to the non-prevailing party, this court held section 106.002 neither mandates an award of fees to the prevailing party nor precludes an award to the non-prevailing party. 482 S.W.3d at 586–87. Noting that "[r]arely is either party a clear-cut victor in a suit affecting the parent-child relationship," this court held "the prevailing-party determination is but one factor in a trial court's analysis of an attorney's-fee award." Id. ; see also Coburn v. Moreland , 433 S.W.3d 809, 840 (Tex. App.—Austin 2014, no pet.) ("Even in cases applying a ‘successful party’ analysis, we discern no requirement that a party win on all or even most of the requested relief. The absence of a bright-line rule ... in these cases is consistent with the broad discretion trial courts are afforded in awarding attorney's fees in SAPCR proceedings." (emphasis added)). While the trial court was not required to award Melody fees in this case, it was within the trial court's discretion to do so. R.E.S. , 482 S.W.3d at 586. Further, even if the trial court could not base its decision solely on a prevailing party analysis, the trial court articulated seven additional bases for the award in its findings of fact and conclusions of law. Therefore, I would hold the trial court did not abuse its discretion in awarding fees to Melody as the "prevailing party."
Next, appellants argue the evidence is insufficient to support the trial court's findings and conclusions that Stephen made false and implausible allegations in the motion for enforcement. Appellants argue that because the DRO, not Stephen, filed the motion for enforcement, the trial court erred in identifying the DRO as the "intervenor," rather than as the "petitioner." The DRO clearly identified itself as the "intervenor" in its pleadings in the trial court. Regardless, whether the DRO was an intervenor or the petitioner is immaterial for two reasons. First, the findings and conclusions appellants challenge specifically refer to Stephen's (as opposed to "intervenor's" or "petitioner's") actions. Second, even if Stephen is not responsible for the written pleading, Stephen made the same false and implausible allegations in his testimony at the hearing. Based on that testimony, I would hold there is sufficient evidence in the record to support the trial court's findings and conclusions that Stephen alleged violations of the possession and access order that could not have occurred as alleged.
Those findings and conclusions are: "The Father and Intervenor withdrew alleged violations ... pertaining to [daughter]"; "The Father alleged 5 violations ... which were impossible because the Father could not drive from [son's] school to [daughter's] school in the 20 minutes as alleged"; and "The award of attorney's fees and expenses to [Melody] is based on: ... The Father alleging five violations which were physically impossible for the Father to have arrived at the children's respective schools as alleged because Father testified that he could not drive the considerable distance between the schools to have arrived as alleged; ... Father failed to exercise due diligence in reviewing the Father's allegations set forth in the 1st Amended Motion for Enforcement of Possession or Access by Contempt. This failure resulted in pleadings or allegations that claimed five impossible times for Father to have arrived at [daughter's] school, if Father drove to [son's] school as he testified."
Finally, appellants argue the trial court improperly characterized Stephen's testimony as "judicial admissions." Whether the trial court fairly characterized Stephen's testimony as "judicial admissions" is not determinative of whether the fee award is improper. As noted above, the award of fees under section 106.002 is within the sound discretion of the trial court. Id. "Under an abuse of discretion standard, we will not reverse the trial court's judgment if the trial court reaches a correct result even for a wrong reason." Diaz v. Diaz , 350 S.W.3d 251, 256 (Tex. App.—San Antonio 2011, pet. denied) (citations omitted). For example, in Diaz , this court held the trial court's broad discretion to award fees under section 106.002(a) supported the trial court's order awarding one party an expert witness fee as a "cost," even though the fee should have been awarded as an "expense." Id. at 257. Here, even if Stephen's statements were not "judicial admissions," the record demonstrates the trial court accurately described Stephen's testimony. Further, appellants do not challenge all of the additional bases for the fee award listed in the trial court's findings of fact and conclusions of law, nor do they challenge the sufficiency of the evidence concerning the amount and necessity of the fees incurred. Therefore, I would hold that even if the trial court mischaracterized Stephen's testimony as "judicial admissions," the evidence is sufficient to support the trial court's award of fees under section 106.002.
Specifically, the trial court found: "[Stephen] judicially admitted that: a) [Stephen] had no evidence that [Melody] failed to surrender the children to [Stephen] as alleged; b) [Melody] did not actively or overtly interfere with [Stephen's] visitation; c) [Stephen] authorized [son] to decide whether to have visitation with [Stephen]; d) [Stephen] elected not to compel [daughter] to leave her After School Program for visitation with [Stephen]; and e) [daughter] was available for pick up by [Stephen] at her school at the time her school was dismissed."
For all of these reasons, I would hold the trial court did not abuse its discretion in awarding fees against Stephen and overrule appellants' second and third issues.
Conclusion
Because I would overrule each of appellants' issues, I would affirm the trial court's order. I join the Opinion's conclusion that this court has jurisdiction to consider this appeal as presented, as well as the Opinion's decision to deny Melody's motion for appellate sanctions.