Does a trial court have the authority to order a parent to pay attorney's fees as additional child support in a non-enforcement modification suit? This issue has divided our state's intermediate courts of appeals as well as panels of this court, and it is the key issue presented to the en banc court today.

The father of three children filed suit seeking modification of a final order rendered in a suit affecting the parent-child relationship, and the mother counter-sued, also seeking modification of that order. The trial court denied the relief requested by the father and granted in part the relief requested by the mother, increasing the father's monthly child-support obligation. The trial court also found that certain fees incurred by an amicus attorney and by the mother were necessaries for the children's benefit, and ordered the father to pay these fees as additional child support. Today, the en banc court upholds this court's conclusion in Hardin v. Hardin and holds that under the Texas Family Code, the trial court in a non-enforcement modification suit has jurisdiction and authority to order a parent to pay reasonable attorney's fees, as additional child support, for legal services benefitting the children. Thus, the trial court had authority to order the father to pay attorney's fees incurred by the amicus attorney and the mother as additional child support. But because the evidence is insufficient to support the trial court's finding that the mother's attorney's fees were reasonable, we reverse the trial court's order that the father pay the fees incurred by the mother and remand for further proceedings. Finding no merit in the father's challenges to the order regarding the amicus attorney's fees and the denial of the father's requested modification, we affirm the remainder of the trial court's order.

I. Factual and Procedural Background

Appellant Rosscer (“Ross”) Craig Tucker, II and appellee Lizabeth Thomas were divorced in 2005. In the divorce decree, the trial court appointed Ross and Lizabeth joint managing conservators of their three minor children. Under that decree, Lizabeth had the exclusive right to designate the children's primary residence, and Ross had the right to possession of the children under a standard possession order.

In December 2008, Ross filed an original petition for modification of the parent-child relationship, seeking to be appointed joint managing conservator with the exclusive right to designate the children's primary residence. Ross also sought an order geographicallyrestricting the children's primary residence to Harris County, Texas. Lizabeth filed a counter-petition, seeking appointment as sole managing conservator of the children, modification of the terms and conditions for Ross's access to and possession of the children, and an increase in Ross's monthly child-support obligation. An amicus attorney was appointed to represent the children's interests.

The case was tried to the bench on eleven days over a ten-week period. On the final day of trial, Ross stated that, if the trial court were to increase his monthly child-support obligation and order him to pay attorney's fees to Lizabeth, Ross would “have to go to bankruptcy court.” Lizabeth's attorney asked the trial court to order that Ross pay Lizabeth's attorney's fees as additional child support. The amicus attorney also requested that Lizabeth and Ross be ordered to pay reasonable attorney's fees to the amicus attorney as additional child support.

In its final order, the trial court disposed of the parties' modification requests. Among other things, the trial court denied Ross's petition for modification and increased Ross's monthly child-support obligation from $1,800 to $2,200. The trial court also found that the amicus attorney had incurred $9,137.50 in attorney's fees, that these fees are reasonable, and that they are necessaries for the children's benefit. The trial court ordered that Ross and Lizabeth each pay the amicus attorney one-half of the amount of these fees as additional child support. The trial court also found that Lizabeth had expended $82,375 in reasonable attorney's fees as necessaries for the children's benefit. The trial court ordered Ross to pay this amount plus postjudgment interest to Lizabeth as additional child support by making payments of $500 per month until the amount owed is paid in full.

Ross filed a motion for new trial in which he challenged the trial court's order that Ross pay attorney's fees to the amicus attorney and to Lizabeth as additional child support. The trial court denied this motion.

II. Issues Presented

In his first issue, Ross asserts that the trial court abused its discretion by awarding Lizabeth attorney's fees, by assessing attorney's fees and amicus fees as child support, and by assessing compound postjudgment interest on the attorney's fees. In his second issue, Ross asserts that the trial court abused its discretion by denying the relief Ross requested in his modification petition.

III. Standard of Review

To prevail in their respective modification suits Ross and Lizabeth, each a party seeking relief, had to show that the circumstances of the children or a person affected by the order had materially and substantially changed since the date of the divorce decree. SeeTex. Fam.Code Ann. § 156.401(a)(1); In re D.S., 76 S.W.3d 512, 520 (Tex.App.-Houston [14th Dist.] 2002, no pet.). In determining whether child support should be modified, the trial court is obliged to examine the circumstances of the children and parents at the time of the divorce decree and the circumstances existing at the time of trial in the modification suit. See In re D.S., 76 S.W.3d at 520. Upon a showing of the requisite changed circumstances, the trial court may alter the child-support obligations. See id. Trial courts have broad discretion to determine and modify the amount of child support that a parent must pay. See id. We review the trial court's modification ruling under the abuse-of-discretion standard. See id. at 521. The test for abuse of discretion is whether the trial court acted arbitrarily or unreasonably, or whether it acted without reference to any guiding rules or principles. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Under the abuse-of-discretion standard of review, challenges to the sufficiency of the evidence are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. In re T.J.L., 97 S.W.3d 257, 266 (Tex.App.-Houston [14th Dist.] 2002, no pet.). An abuse of discretion does not occur when the record contains some evidence of a substantial and probative character to support the trial court's ruling. Id.

IV. Analysis

A. In a non-enforcement modification suit, does a trial court have jurisdiction and authority to order payment of attorney's fees as additional child support?

Under his first issue, Ross argues 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. The reasoning of the First Court of Appeals in In re Moers supports Ross's argument. See104 S.W.3d 609, 611–12 (Tex.App.-Houston [1st Dist.] 2003, no pet.). Though he relies upon the In re Moers case, Ross acknowledges that this court declined to follow In re Moers and held to the contrary in Hardin v. Hardin. See161 S.W.3d 14, 24–27 (Tex.App.-Houston [14th Dist.] 2004) (holding in non-enforcement modification suit that court of continuing jurisdiction may order one parent to pay the reasonable attorney's fees of the other parent as additional child support if the fees are necessaries for the benefit of the children), judgm't vacated, op. not withdrawn, No. 14–03–00342–CV, 2005 WL 310076, at *1 (Tex.App.-Houston [14th Dist.] Feb. 10, 2005, no pet.) (mem. op.). This court has followed the Hardin precedent. See, e.g., In re J.A.D., No. 14–08–00689–CV, 2010 WL 2649961, at *1–4 (Tex.App.-Houston [14th Dist.] Jul. 6, 2010, no pet.) (holding, in modification suit in which no enforcement was ordered, that trial court did not abuse its discretion in ordering father to pay mother's attorney's fees as child support under the “necessaries” rule) (mem. op). But, as noted by Ross, in two opinions this court followed In re Moers without citing or discussing this court's prior precedent in Hardin. See McCloskey v. McCloskey, No. 14–06–00470–CV, 2009 WL 3335868, at *2 (Tex.App.-Houston [14th Dist.] Apr. 2, 2009, pet. denied) (mem. op.); In re D.C.M., No. 14–06–00844–CV, 2008 WL 4146785, at *10 (Tex.App.-Houston [14th Dist.] Sept. 9, 2008, pet. denied) (mem. op.). On our own motion, we decided to hear this case en banc to resolve the conflict among opinions of this court as to whether a trial court in a non-enforcement modification suit has jurisdiction and authority to order payment of attorney's fees as additional child support. SeeTex.R.App. P. 41.2(c). Compare In re J.A.D., 2010 WL 2649961, at *1–4, and Hardin, 161 S.W.3d at 24–27,with McCloskey, 2009 WL 3335868, at *2,and In re D.C.M., 2008 WL 4146785, at *10.

A party can file a motion for enforcement in a modification suit. SeeTex. Fam.Code Ann. § 157.003(a) (West 2008). In this opinion, we refer to a modification suit in which the trial court does not grant a motion for enforcement as a “non-enforcement modification suit.”

1. The trial court had jurisdiction and authority to order additional child support in general.

Because the trial court rendered the divorce decree, the trial court has continuing, exclusive jurisdiction over the matters addressed in Title 5 of the Family Code in connection with Ross and Lizabeth's children, including child-support issues. SeeTex. Fam.Code Ann. § 155.001 (West 2008) (stating, with exceptions not applicable to case under review, that upon rendition of a final order, a trial court acquires continuing, exclusive jurisdiction over the matters provided for by Title 5 of the Family Code in connection with a child). On appeal, Ross does not dispute that the trial court has continuing, exclusive jurisdiction. But Ross asserts that the trial court lacked authority to order him to pay attorney's fees as additional child support because courts do not have such authority in a non-enforcement modification suit.

In the divorce decree the trial court rendered orders regarding Ross's duty to support his children. As the court with continuing, exclusive jurisdiction, the trial court is vested with jurisdiction to modify the decree regarding (1) Ross's duty to support his children, (2) conservatorship issues, and (3) issues regarding possession of and access to the children. SeeTex. Fam.Code Ann. § 155.003 (West Supp.2010) (stating, with exceptions not applicable to case under review, that “a court with continuing, exclusive jurisdiction may exercise its jurisdiction to modify its order regarding managing conservatorship, possessory conservatorship, possession of and access to the child, and support of the child”).

With exceptions not applicable to the case under review, the Texas Legislature has provided that a court with continuing, exclusive jurisdiction may modify its prior order providing for the support of a child if:

(1) the circumstances of the child or a person affected by the order have materially and substantially changed since the earlier of:

(A) the date of the order's rendition; or

(B) the date of the signing of a mediated or collaborative law settlement agreement on which the order is based....
Tex. Fam.Code Ann. § 156.401(a) (West 2008). Lizabeth invoked this provision in her counter-petition seeking an increase in Ross's child-support obligations, and the trial court impliedly found this provision to apply when it granted Lizabeth's counter-petition in part, ordered an increase in Ross's monthly child-support obligation, and ordered Ross to pay attorney's fees as additional child support. See id.; Lemons v. EMW Mfg. Co., 747 S.W.2d 372, 373 (Tex.1988) (per curiam) (stating that, in the absence of findings of fact by the trial court, appellate courts presume that the trial court made all findings necessary to support its judgment); Randle v. Randle, 700 S.W.2d 314, 315–16 (Tex.App.-Houston [1st Dist.] 1985, no writ) (concluding that trial court impliedly found that the circumstances of the child had materially and substantially changed in case in which the trial court did not make any findings of fact and this finding was necessary to support the judgment). Under the unambiguous language of the Family Code, the trial court had jurisdiction and authority in the modification suit to order Ross to pay additional child support. SeeTex. Fam.Code Ann. §§ 155.003, 156.401(a); see alsoTex. Fam.Code Ann. § 154.001(a) (West 2008) (stating that “the court may order either or both parents to support a child in the manner specified by the order....”).

2. The trial court had jurisdiction and authority to order payment of attorney's fees as additional child support.

Given the trial court's clear jurisdiction and authority to order Ross to pay additional child support, the next question is whether, in a non-enforcement modification suit, the trial court could determine that Ross's duty to support his children includes a duty to pay reasonable attorney's fees for legal services benefitting the children. Under the unambiguous language of the Family Code and under precedent from the Supreme Court of Texas, the answer to this question is “yes.”

“A parent of a child has ... the duty to support the child.” Tex. Fam.Code Ann. § 151.001(a) (West 2008). In the Family Code, the Texas Legislature expressly states that “a parent who fails to discharge the duty of support is liable to a person who provides necessaries to those to whom support is owed.” Id. § 151.001(c). In this provision, the Legislature has codified longstanding common-law principles. Under the plain language of section 151.001(c),

Ross's duty as a parent to support his minor children includes a duty to provide them with necessaries.

Unless otherwise stated, all statutory references in this opinion are to the Texas Family Code.

See id.; In re H.V., 252 S.W.3d 319, 327, n. 55 (Tex.2008) (concluding that a parent's duty of support includes a duty to pay for the “necessaries” of the parent's children); In re W.J.S., 35 S.W.3d 274, 277–278 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (same as In re H.V.). This duty is not changed by the divorce of Ross and Lizabeth, and “a person who provides necessaries” under section 151.001(c) can include Lizabeth, even though she is a parent of the children. See In re B.I.V., 923 S.W.2d 573, 574–75 (Tex.1996); Office of Attorney General v. Carter, 977 S.W.2d 159, 160–61 (Tex.App.-Houston [14th Dist.] 1998, no pet.). For more than a century, Texas courts have held that reasonable attorney's fees incurred for the benefit of a minor may constitute necessaries. See Searcy v. Hunter, 81 Tex. 644, 17 S.W. 372, 373 (Tex.1891) (stating that reasonable attorney's fees for the benefit of a minor in prosecuting a civil suit to recover money or property for the minor may be necessaries); Askey v. Williams, 74 Tex. 294, 11 S.W. 1101, 1101–02 (1889) (holding that reasonable attorney's fees for the benefit of a minor in defending the minor against a criminal charge were necessaries). Three years ago, the Supreme Court of Texas reaffirmed that attorney's fees for services rendered for a child's benefit may constitute necessaries that fall within the duty of support owed by that child's parents. See In re H.V., 252 S.W.3d at 327, n. 55.

This legal rule has been part of the jurisprudence in America since the early days of our country. See 2 J. Kent, Commentaries On American Law 191 (3d ed. 1827) (stating that “during the minority of the child, the parent is absolutely bound to provide reasonably for [the child's] maintenance and education, and [the parent] may be sued for necessaries furnished, and schooling given to a child, under just and reasonable circumstances”).

Ross's duty to support his children encompasses an obligation to provide them with necessaries, which may include reasonable attorney's fees for legal services benefitting the children. SeeTex. Fam.Code Ann. §§ 151.001(a), (c); In re H.V., 252 S.W.3d at 327, n. 55;Searcy, 17 S.W. at 373;Askey, 11 S.W. at 1101–02. In Hardin v. Hardin, this court cited section 154.001 but did not cite section 151.001 or section 156.401(a). See Hardin, 161 S.W.3d at 24–27. Nonetheless, the Hardin court noted that the duty of a parent to pay attorney's fees as necessaries is based upon a parent's duty to support his children. See id. at 25.In addition, the Hardin court cited non-enforcement cases that cited the statutory predecessor to section 151.001. See id. at 25–26 (citing Roosth v. Roosth and Daniels v. Allen );Roosth v. Roosth, 889 S.W.2d 445, 456–57 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (holding that trial court did not abuse its discretion in ordering that father pay attorney's fees to mother as necessaries for the benefit of the children in divorce decree and citing statutory predecessor to section 151.001); Daniels v. Allen, 811 S.W.2d 278, 280 (Tex.App.-Tyler 1991, no writ) (holding that trial court did not abuse its discretion in ordering that father pay attorney's fees to mother as necessaries for the benefit of the children in paternity proceeding and citing statutory predecessor to section 151.001). Though not cited in all of the opinions, there is a sound statutory basis for the holdings in cases in which courts have determined that the trial court in a non-enforcement modification suit has authority to order a parent to pay reasonable attorney's fees as child support under the “necessaries rule.”

See In re J.A.D., 2010 WL 2649961, at *1–4 (holding, in modification suit in which no enforcement was ordered, that trial court did not abuse its discretion in ordering father to pay mother's attorney's fees as child support under the “necessaries” rule); In re A.J.J., No. 2–04–265–CV, 2005 WL 914493, at *5–6 (Tex.App.-Fort Worth Apr. 21, 2005, no pet.) (mem. op.) (holding in non-enforcement modification suit that court of continuing jurisdiction did not abuse its discretion in ordering father to pay reasonable attorney's fees incurred by mother as necessaries for the children); Hardin, 161 S.W.3d at 25–26 (holding in non-enforcement modification suit that court of continuing jurisdiction may order one parent to pay the reasonable attorney's fees of the other parent as necessaries for the benefit of the children and thus as child support); Stevens v. Stevens, No. 05–03–00249–CV, 2003 WL 21999900, at *2–3 (Tex.App.-Dallas Aug. 25, 2003, no pet.) (mem. op.) (stating in non-enforcement modification suit that court of continuing jurisdiction may order one parent to pay the reasonable attorney's fees of the other parent as necessaries for the benefit of the children, but concluding that trial court abused its discretion by concluding that fees were necessaries under the facts and circumstances of the case under review); In re A.J.L., 108 S.W.3d 414, 421–22 (Tex.App.-Fort Worth 2003, pet. denied) (stating in non-enforcement modification suit that court of continuing jurisdiction may order one parent to pay the reasonable attorney's fees of the other parent as necessariesfor the benefit of the children and holding that trial court abused its discretion in ordering that non-parent pay attorney's fees as child support, given that non-parent had no duty to pay for the children's necessaries). 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.

Our dissenting colleagues rely upon the absence of any express statement of this authority in Chapter 156, sometimes referring to this absence as the “silence” of Chapter 156. See post at pp. 720–21. Though the Legislature could have stated this authority expressly in Chapter 156, its failure to do so is not dispositive. The Legislature stated in section 156.401 that trial courts may modify a child-support order under circumstances such as those presented in the case under review. SeeTex. Fam.Code Ann. § 156.401. In other chapters of the Family Code, the Legislature has stated that (1) the trial court may order a parent to support a child in the manner specified in the order, with exceptions not applicable to the case under review; and (2) a parent's duty to support minor children includes a duty to provide the children with necessaries. See id. §§ 151.001, 154.001. These sections apply in modification actions, even though they are not found in Chapter 156. See, e.g., In re A.L.E., 279 S.W.3d 424, 431 (Tex.App.-Houston [14th Dist.] 2009, no pet.) (applying section 153.001 to modification suit under Chapter 156); Stanfield v. Stanfield, No. 01–05–00379–CV, 2005 WL 3454139, at *2 (Tex.App.-Houston [1st Dist.] Dec. 15, 2005, no pet.) (applying section 154.001 to modification suit under Chapter 156) (mem. op.).

The Texas Legislature has crafted a comprehensive statutory scheme in the Family Code. Though the Legislature prohibits trial courts from taking various actions in different parts of the Family Code, the Legislature uses language of permission in the Family Code much more frequently than language of prohibition. In enacting laws governing the rights and responsibilities of parents and the protection of children, the Legislature made a policy choice to vest trial courts with vast power and broad discretion over many important matters. 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. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982) (concluding that Family Code gives trial courts wide latitude in determining the best interests of a minor child); Quijano v. Quijano, 347 S.W.3d 345, 349 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (stating that, under section 7.001, trial courts have wide discretion in making a just and right division of the marital estate); In re Smith, 260 S.W.3d 568, 574 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding) (stating that trial courts are vested with broad discretion in determining the best interests of a child in family law matters such as custody, visitation, and possession); Swaab v. Swaab, 282 S.W.3d 519, 532 (Tex.App.-Houston [14th Dist.] 2008, pet. dism'd) (concluding that trial courts have broad discretion in crafting the rights and duties of each conservator in effectuating the best interest of the child); In re K.R.P., 80 S.W.3d 669, 674 (Tex.App.-Houston [1st Dist.] 2002, pet. denied) (stating that trial courts have wide discretion in determining the best interests of a child in family law matters such as child support); Dade v. Dade, No. 01–05–00912–CV, 2007 WL 1153053, at *1 (Tex.App.-Houston [1st Dist.] Apr. 19, 2007, no pet.) (noting that the Texas Legislature has conferred upon the trial courts wide discretion to enforce property divisions contained in a divorce decree) (mem. op.); Klise v. Klise, 678 S.W.2d 545, 546–47 (Tex.App.-Houston [14th Dist.] 1984, no writ) (stating that each child-support case stands on its own facts and that trial courts have wide discretion in resolving child-support issues). This big-picture view is strong evidence of the Legislature's choice to place broad discretion in the trial judge in the resolution of family law matters.

The statutes we interpret today do not contain language which expressly prohibits a trial court from ordering a parent to pay reasonable attorney's fees for legal services benefitting the children as additional child support. Nor do these statutes expressly authorize a trial court to take this action. But the silence is hardly an indication that the Legislature intended to forbid an award of attorney's fees as child support in a non-enforcement modification suit. To the contrary, in light of general statutes giving the trial court authority to order parents to comply with their duty of support by paying for their children's necessaries, the absence of statutory language placing limitations or restrictions on the court's authority is some indication that the Legislature did not intend to restrict this authority. See Tex. Fam.Code Ann. §§ 151.001, 154.001(a), 156.401. As demonstrated in the plain terms of many sections in the Family Code, when the Legislature intends to impose restrictions, it usually expresses this intention clearly and concisely within the statutory language. See, e.g., Tex. Fam.Code Ann. § 153.001(b) (West 2008) (stating that “a court may not render an order that conditions the right of a conservator to possession of or access to a child on the payment of child support”). If anything, the absence of such restrictions suggests 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.

In the case under review, the trial court determined that the attorney's fees Lizabeth and the amicus attorney incurred are reasonable and that these fees are necessaries for the benefit of and in the best interests of the children. Under applicable statutes, the trial court was clothed with jurisdiction and authority to order Ross to pay these attorney's fees as additional child support.

SeeTex. Fam.Code Ann. §§ 151.001, 154.001, 155.003, 156.401. Though five sister courts of appeals have followed In re Moers,

These statutes permit a trial court to order a parent to pay the other parent or an amicus attorney reasonable attorney's fees as child support in a non-enforcement modification suit. Because these statutes do not expressly mention attorney's fees, our dissenting colleagues conclude that no statute permits such an order. See post at pp. 718–21. But the Texas Legislature is free to express itself through general rather than specific language, and the meaning of a statute can be implied from the express statements in the statutory text. See Tex. Indus. Energy Consumers v. CenterPoint Energy Houston Electric, LLC, 324 S.W.3d 95, 105–07 (Tex.2010) (holding that transferor's request to recover fee it had paid was within the scope of the general statutory language allowing recovery of “reasonable costs of participating in a proceeding,” even though other party was initially responsible for paying this fee and even though statute did not specifically provide that such recovery was allowed); Sturgis Air One, L.L.C. v. Harris County Appraisal Dist., No. 14–09–00891–CV, 351 S.W.3d 381, 385–387 (Tex.App.-Houston [14th Dist.] 2011, no pet.) (holding that the Legislature imposed a requirement implicitly, rather than by means of statutory language expressly stating the requirement); Perry & Perry Builders, Inc. v. Galvan, No. 03–02–00091–CV, 2003 WL 21705248, at *8 (Tex.App.-Austin Jul. 24, 2003, no pet.) (holding that attorney's fees for quantum-meruit claim may be recovered under Texas Civil Practice and Remedies Code section 38.001 because this claim falls within general statutory language, even though statute does not specifically refer to quantum-meruit claims) (mem. op.). Our Legislature has provided that a parent's child-support duty includes paying for a child's necessaries. SeeTex. Fam.Code Ann. § 151.001(c). The Legislature's failure to expressly state that necessaries may include attorney's fees for services rendered for a child's benefit does not prevent courts from concluding that such fees fall within the scope of this general statutory language. See Tex. Indus. Energy Consumers, 324 S.W.3d at 105–07;Perry & Perry Builders, Inc., 2003 WL 21705248, at *8.

this court, in Hardin, and other courts have determined, correctly, that the trial court in a non-enforcement modification suit may order a parent to pay reasonable attorney's fees as child support based upon the parent's duty to pay for the children's necessaries. See In re H.V., 252 S.W.3d at 327, n. 55;Searcy, 17 S.W. at 373;Askey, 11 S.W. at 1101–02;In re J.A.D., 2010 WL 2649961, at *1–4;In re A.J.J., 2005 WL 914493, at *5–6;Hardin, 161 S.W.3d at 25–26;Stevens, 2003 WL 21999900, at *2–3;In re A.J.L., 108 S.W.3d at 421–22;In re W.J.S., 35 S.W.3d at 277–278.

See, e.g., In re M.A.F., No. 12–08–00231–CV, 2010 WL 2178541, at *9 (Tex.App.-Tyler May 28, 2010, no pet.) (mem. op.); In re A.S.Z., No. 2–07–259–CV, 2008 WL 3540251, at *1 (Tex.App.-Fort Worth Aug.14, 2008, no pet.) (per curiam) (mem. op.); Naguib v. Naguib, 183 S.W.3d 546, 547–48 (Tex.App.-Dallas 2006, no pet.); Finley v. May, 154 S.W.3d 196, 199 (Tex.App.-Austin 2004, no pet.); In re J.C.K., 143 S.W.3d 131, 143 (Tex.App.-Waco 2004, no pet.).

3. In no statute has the Texas Legislature restricted the trial court's authority to order the payment of attorney's fees as additional child support to the enforcement context.

The courts in the Moers line of cases and our dissenting colleagues conclude that the Texas Legislature has restricted the taxation of fees as child support to the enforcement context.

See In re Moers, 104 S.W.3d at 611–12. This conclusion conflicts with the unambiguous language of the Family Code.

The rationale of the court in In re Moers is addressed in this opinion in subsections 4 and 5 of section IV.A., infra. The cases that adopt or follow the Moers rule have not set forth any reasons in support of this rule that are not contained in the Moers opinion. We refer to the Moers opinion and the opinions that follow it as the “Moers line of cases.”

In construing a statute, this court's purpose is to give effect to the Legislature's expressed intent. Iliff v. Iliff, 339 S.W.3d 74, 79 (Tex.2011). If possible, this court must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). “ ‘Our role ... is not to second-guess the policy choices that inform our statutes or to weigh the effectiveness of their results; rather, our task is to interpret those statutes in a manner that effectuates the Legislature's intent.’ ” Iliff, 339 S.W.3d at 79 (quoting McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex.2003)). When statutory language is unambiguous and yields only one reasonable interpretation, this court must interpret the statute according to its plain meaning. Id.

In pertinent part, section 157.167, entitled “Respondent to Pay Attorney's Fees and Costs,” reads as follows:

(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.

(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, includingcontempt, but not including income withholding.
Tex. Fam.Code Ann. § 157.167 (West 2008). Under section 157.167(a), if the trial court finds that a respondent to a motion for enforcement has failed to make child-support payments, the trial court must order the respondent to pay the movant's reasonable attorney's fees and court costs as well as the child-support arrearages. See id. Without the requirement of any finding that these fees and costs are child support or necessaries for the benefit of the children, the trial court has the authority to enforce such an order by any means available for the enforcement of child support, but the trial court is not required to use these means of enforcement. See id.; Iliff, 339 S.W.3d at 81 (holding that “may” as used in section 154.066 gave the trial court authority or permission); see also Isaacs v. Isaacs, 338 S.W.3d 184, 187 (Tex.App.-Houston [14th Dist.] 2011, pet. filed) (outlining various cumulative means available under the Family Code by which a trial court may enforce an unpaid child-support obligation). The latter determination is within the trial court's discretion according to the facts and circumstances in a particular case. Nothing in the language of section 157.167(a) reflects any intent by the Legislature to limit the circumstances under which trial courts may find that attorney's fees are necessaries for the benefit of the children under other statutes, such as sections 151.001, 154.001(a), and 156.401.

The language in the second sentence of section 157.167(a), upon which the Moers court and our dissenting colleagues rely heavily, was first added by the Texas Legislature in 1999. See Act of May 27, 1999, 76th Leg., R.S., ch. 556, § 18, 1999 Tex. Gen. Laws 3058, 3062 (amended 2003, 2005) (current version at Tex. Fam.Code Ann. § 157.167(a)). Our construction of the relevant sections of the Family Code does not render this language superfluous or meaningless. Under our construction, the trial court has discretion to find that attorney's fees incurred in prosecuting a motion for enforcement are necessaries for the benefit of the children and thus constitute part of the parent's child-support obligation. Under the statutory language added in 1999, trial courts have the authority to enforce an award of attorney's fees and costs as if they were child support, without any finding that the fees and costs actually are necessaries or child support. SeeTex. Fam.Code Ann. § 157.167(a). Giving trial courts discretion to enforce attorney's fees awards as if they were child support is not duplicative of discretion to determine that attorney's fees are child support because they are necessaries for the benefit of the children.

Under section 157.167(b), if the trial court finds that a respondent to a motion for enforcement has failed to comply with the terms of an order regarding possession of or access to a child, the trial court must order the respondent to pay the movant's reasonable attorney's fees and court costs. See id. § 157.167(b). If the trial court finds that the enforcement of the order in question was necessary to ensure the child's physical or emotional health or welfare, then the trial court has the authority to enforce this order of fees and costs by any means available for the enforcement of child support except for income withholding, but the trial court is not required to use these means of enforcement. See id.; Iliff, 339 S.W.3d at 81 (holding that “may” as used in section 154.066 gave the trial court authority or permission). In contrast to the trial court's authority in section 157.167(a), under section 157.167(b) the trial court only has the authority to enforce the fees and costs if the court makes the required finding, and, even then, the trial court does not have the authority to enforce these fees and costs by means of income withholding. SeeTex. Fam.Code Ann. § 157.167(a),(b). There is nothing in the text of section 157.167(b) that suggests any intent by the Legislature to restrict the circumstances under which trial courts may find that attorney's fees are necessaries for the benefit of the children under other statutes (such as sections 151.001, 154.001(a), and 156.401).

See id. § 157.167(b).

In pertinent part, section 106.002, entitled “Attorney's Fees and Expenses,” reads as follows:

(a) In a suit under this title, the court may render judgment for reasonable attorney's fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney.

(b) A judgment for attorney's fees and expenses may be enforced in the attorney's name by any means available for the enforcement of a judgment for debt.
Tex. Fam.Code Ann. § 106.002 (West 2008). Under this statute, a court has the authority to render judgment for reasonable attorney's fees and expenses, and the court has the authority to render judgment in favor of the attorney. See id. § 106.002(a). For the purposes of this opinion, it is presumed for the sake of argument that section 106.002(b) applies to judgments for attorney's fees in favor of either a party or an attorney. Under this statute, the trial court has the authority to enforce a judgment for attorney's fees by any means available for the enforcement of a judgment for debt, but the trial court is not required to use these means of enforcement. See id. § 106.002(b); Iliff, 339 S.W.3d at 81. The courts in the Moers line of cases and our dissenting colleagues rely upon section 106.002(b) for the proposition that judgments for attorney's fees under the Family Code are debts rather than child support unless a provision of the Family Code states otherwise. See In re Moers, 104 S.W.3d at 612. Under section 106.002(b), the Legislature simply permits judgments for attorney's fees to be enforced by the means available for enforcing a judgment for debt; the statute does not state that such a judgment is a judgment based upon a debt. SeeTex. Fam.Code Ann. § 106.002(b). Indeed, one of the remedies that the Legislature has provided for unpaid child support is rendition of a money judgment for child-support arrearages, which judgment “may be enforced by any means available for the enforcement of a judgment for debts.” See id. § 157.264(a) (West Supp.2010). Just as the enforcement remedies provided in section 157.264(a) do not make past-due child support a debt, the provision of the same remedies in section 106.002(b) does not mean an order that a party pay attorney's fees must be a debt and cannot be child support under the necessaries rule. See id. §§ 106.002(b), 157.264(a). Nothing in the language of section 106.002 reflects any intent by the Legislature to limit the circumstances under which trial courts may find that attorney's fees are necessaries for the benefit of the children under other statutes (such as sections 151.001, 154.001(a), and 156.401). See id. § 106.002.

In pertinent part, section 158.0051 reads as follows:

(a) In addition to an order for income to be withheld for child support, including child support and child support arrearages, the court may render an order that income be withheld from the disposable earnings of the obligor to be applied towards the satisfaction of any ordered attorney's fees and costs resulting from an action to enforce child support under this title.
Tex. Fam.Code Ann. § 158.0051 (West 2008). Under section 158.0051(a), in addition to rendering an order for income to be withheld for child support, the trial court may render an order that income be withheld from the disposable earnings of the obligor to be applied towards the satisfaction of any attorney's fees and costs that an obligor was ordered to pay in an action to enforce child support, but the trial court is not required to order income withholding as to these enforcement fees. See id.; Iliff, 339 S.W.3d at 81. Nothing in the language of section 158.0051(a) reflects any intent by the Legislature to limit the circumstances under which a trial court may find that a parent should pay attorney's fees as additional child support because these fees are necessaries for the benefit of the parent's children under other statutes, such as sections 151.001, 154.001(a), and 156.401. Indeed, section 158.0051(a) expressly refers to the trial court's authority to order income withholding for child support. SeeTex. Fam.Code Ann. § 158.0051(a). Our dissenting colleagues discuss section 158.0051(a) without mentioning this part of the statute. See post at pp. 720–21. They suggest that this statute indicates that a trial court cannot order a parent to pay attorney's fees in a non-enforcement modification suit as additional child support. See id. This construction conflicts with statutes permitting a trial court in a non-enforcement modification suit to order a parent to pay reasonable attorney's fees as child support based upon the parent's duty to pay for the children's necessaries. SeeTex. Fam.Code Ann. §§ 151.001, 154.001, 155.003, 156.401. This construction also conflicts with the statute allowing a trial court in a non-enforcement modification suit to determine that reasonable attorney's fees awarded to an amicus attorney, attorney ad litem, or guardian ad litem are necessaries for the benefit of the child. SeeTex. Fam.Code Ann. § 107.023(d).

The parties have not cited and research has not revealed any part of the Family Code in which the Legislature prohibits trial courts from finding that attorney's fees are necessaries for the benefit of the children under statutes such as sections 151.001, 154.001(a), and 156.401. The courts in the Moers line of cases do not address sections 151.001, 154.001(a), or 156.401(a), and these courts base their analysis upon the false premise that the Legislature restricted the taxation of fees as child support to the enforcement context.

See In re M.A.F., 2010 WL 2178541, at *9;In re A.S.Z., 2008 WL 3540251, at *1;Naguib, 183 S.W.3d at 547–48;Finley, 154 S.W.3d at 199;In re J.C.K., 143 S.W.3d at 143;In re Moers, 104 S.W.3d at 611–12.See id. By urging the adoption of this analysis of sections 106.002, 157.167, and 158.0051, Ross is effectively asking this court to supplant the policy choice of the people's elected representatives in favor of a more restrictive rule. The role of the court is to apply the statute as written. See Iliff, 339 S.W.3d at 79. Any policy changes regarding the Family Code should come from the Capitol, not the courthouse. See id.

None of the cases cited by our dissenting colleagues address these statutes. See post at p. 727.

In enacting the Family Code, the Legislature did not impose the restriction that the courts in the Moers line of cases have adopted; instead, the Texas Legislature placed broad discretion in the courts of continuing jurisdiction to order a parent to pay attorney's fees as child support in appropriate cases, whether in the enforcement context or not. SeeTex. Fam.Code Ann. §§ 151.001, 154.001(a), 156.401. There is no sound reason to overrule Hardin and In re J.A.D.

and to replace them with a rule that is not congruent with the statutory scheme or grounded in the statutory text. See In re J.A.D., 2010 WL 2649961, at *1–4;Hardin, 161 S.W.3d at 25–26.

Our dissenting colleagues conclude that In re J.A.D. is not on point. But in In re J.A.D., this court concluded as follows:
We cannot say the trial court acted arbitrarily or unreasonably or disregarded guiding rules and principles in ordering [father] to pay [mother's] attorney's fees as child support. Each of the issues raised by [father] and [mother] were directly related to J.A.D.'s welfare and best interests, thus making [mother's] attorney's fees “necessaries” for J.A.D.'s support. This allowed the trial court to assess [mother's] attorney's fees as ‘necessaries' against [father].

In re J.A.D., 2010 WL 2649961, at *4 (citations omitted).

4. Caution in the trial court's exercise of its contempt power is not relevant to the determination of whether the trial court has the authority to order the children's father to pay attorney's fees as additional child support.

The Moers court reasoned that “a trial court should exercise its contempt power with caution” and that “because of this widely accepted principle, we have sought to limit any extension of the ‘duty to support’ to services and costs required for enforcing child support.” In re Moers, 104 S.W.3d at 612. Our dissenting colleagues employ similar reasoning. See post at pp. 721–22. In Moers, the trial court had not exercised its contempt power, and the trial court in the case under review has not exercised this power to enforce its order that Ross pay the attorney's fees at issue in this appeal. See id. at 611–12. Therefore, the principle that the trial court should exercise its contempt power with caution was not relevant in Moers and is not relevant in the case under review. The unambiguous language of the relevant statutes gives the trial court the authority to order Ross to pay attorney's fees as additional child support in the context of a non-enforcement modification suit. SeeTex. Fam.Code Ann. §§ 151.001, 154.001(a), 156.401. This authority is not affected one iota by the principle that trial courts should exercise their contempt power with caution. A trial court may exercise its authority to order a parent to pay attorney's fees as child support under the rule of necessaries, and if the obligor fails to pay this child support, then the trial court should exercise caution in deciding whether to hold the obligor in contempt or to use other means of enforcement. The Supreme Court of Texas has stated clearly and consistently that holding a parent in contempt for failure to pay child support ordered by the trial court does not violate the constitutional prohibition against imprisonment for failure to pay a debt.

SeeTex. Const. art. I, section 18; Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993); Ex parte Birkhead, 127 Tex. 556, 95 S.W.2d 953, 954–56 (1936). Rather than proceed “with caution,” courts should readily give effect to the unambiguous language of the applicable statutes. See Iliff, 339 S.W.3d at 79.

Ross has not asserted that any statute relating to this case is unconstitutional.

5. Section 107.023 provides an additional basis for the trial court's authorityto order payment of reasonable attorney's fees to the amicus attorney as additional child support.

Ross argues that the trial court lacked authority to order him to pay one-half of the amicus attorney's reasonable fees as additional child support. In addition to the Family Code provisions discussed above, another statute supports the trial court's authority to order Ross to pay these fees as child support. Section 107.023, entitled “Fees in Suits Other Than by Governmental Entity,” provides in pertinent part 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 ... 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....

....

(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.
Tex. Fam.Code Ann. § 107.023 (West Supp.2010). Under the unambiguous language of this statute, the trial court had authority to determine that the amicus attorney's reasonable fees were necessaries for the children's benefit and to order Ross to pay the amicus attorney one-half of the amount of these fees as additional child support. See id. § 107.023(d). According to the dissenting justices, in section 107.023(d), the Texas Legislature provides only that a trial court may determine that fees awarded to an amicus attorney, attorney ad litem, or guardian ad litem are necessaries for the benefit of the child, and this determination does not mean that the attorney's fees are part of the parent's support obligation. See post at p. 723. But the Texas Legislature has stated in the Family Code that a parent's duty to support minor children includes a duty to provide them with necessaries. SeeTex. Fam.Code Ann. § 151.001(c). In addition, the Supreme Court of Texas and this court have concluded that a parent's duty of support includes a duty to pay for the necessaries of the parent's children. See In re H.V., 252 S.W.3d at 327, n. 55;In re W.J.S, 35 S.W.3d at 277–278. Under section 151.001(c) and this court's opinion in Hardin, a trial court's finding that attorney's fees are necessaries for the benefit of the child supports a trial court's order that a parent pay these fees as additional child support.

SeeTex. Fam.Code Ann. § 151.001(c); Hardin, 161 S.W.3d at 24–27;see also In re J.A.D., 2010 WL 2649961, at *4 (holding that trial court properly assessed “[mother's] attorney's fees as ‘necessaries' against [father]” in case in which trial court ordered father to pay mother's attorney's fees as “child support” but did not state that the fees were “necessaries”). The only reasonable construction of section 107.023(d) is that a trial court has discretion to find that attorney's fees awarded to an amicus attorney, attorney ad litem, or guardian ad litem are necessaries for the benefit of the child that may be awarded as additional child support.

In the case under review, the trial court found that the fees incurred by Lizabeth and the amicus attorney are necessaries for the benefit of the children, and the trial court ordered Ross to pay Lizabeth's fees and half of the amicus attorney's fees as additional child support.

6. The Daggett opinion does not address the statutes at issue in this appeal.

The In re Moers court and our dissenting colleagues rely upon this court's opinion in Roosth v. Daggett, 869 S.W.2d 634 (Tex.App.-Houston [14th Dist.] 1994, orig. proceeding). In Daggett, this court conditionally granted a writ of mandamus directing the trial court to vacate its show cause order for violation of a turnover order, holding that, because the relator had appealed from the turnover order, the trial court lacked contempt jurisdiction over the relator regarding alleged violations of the turnover order. See id. at 637. The Daggett court addressed issues relating to an appeal from a turnover order and the enforcement of that turnover order. See id. at 635–37. The Daggett court applied a rule of law regarding contempt jurisdiction that has since been abrogated by the Supreme Court of Texas. See id. at 637 (applying Schultz v. Fifth Judicial District Court of Appeals at Dallas, 810 S.W.2d 738, 740–41 (Tex.1991), abrogated by In re Sheshtawy, 154 S.W.3d 114, 123–25 (Tex.2004)). When this court issued the Daggett opinion, the Family Code did not contain the language in the second sentence of section 157.167(a) or the language in section 157.167(b) or any similar language. See Act of July 29, 1987, 70th Leg., 2d C.S., ch. 73, § 7, 1987 Tex. Gen. Laws 225, 229, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282. We conclude that the Daggett opinion is not on point.

In any event, the Daggett court's discussion regarding attorney's fees does not necessarily conflict with this court's opinion in Hardin. The Daggett court stated that (1) not all attorney's fees awards are treated the same way; (2) attorney's fees may be assessed as “necessities”

under [predecessor of section 106.002] for enforcement of a child-support order; (3) such an award is incurred as child support and is enforceable through contempt; (4) attorney's fees also may be awarded for other services in suits affecting the parent-child relationship; and (5) attorney's fees “other than necessities for a child's support” are a debt and are not enforceable by contempt. See Daggett, 869 S.W.2d at 636–37. The Daggett court did not address attorney's fees in a non-enforcement modification suit, and the court did not state that attorney's fees in enforcement actions were the only fees that could be “necessities.” See id. Indeed, the Hardin court cited the Daggett opinion. See Hardin, 161 S.W.3d at 26. The Daggett court did not discuss sections 151.001, 154.001, 156.401, or their statutory predecessors. See Daggett, 869 S.W.2d at 636–37. The Daggett court did not address whether a trial court in a non-enforcement modification suit may order a parent to pay reasonable attorney's fees as child support based upon a finding that these fees are necessaries for the children. See id. Contrary to the dissent, the Daggett opinion does not undermine our analysis.

Some courts use the term “necessities” instead of “necessaries.”

7. This court's Hardin precedent stands.

For the reasons stated above, we conclude that, in the Family Code, the Texas Legislature gives the trial court in a non-enforcement modification suit jurisdiction and authority to order a parent to pay reasonable attorney's fees for legal services benefitting the children as additional child support under the necessaries rule. The trial court may order such fees paid to the other parent, an amicus attorney, attorney ad litem, or guardian ad litem. We uphold the conclusion reached in Hardin and In re J.A.D. See In re J.A.D., 2010 WL 2649961, at *l–4; Hardin, 161 S.W.3d at 24–27. To the extent portions of the opinions in McCloskey and In re D.C.M. are contrary, we disapprove of these portions. See McCloskey, 2009 WL 3335868, at *2;In re D.C.M., 2008 WL 4146785, at *10.

B. Is the evidence sufficient to prove that the fees incurred by the children's mother were reasonable fees for legal services benefitting the children?

Under his first issue, Ross also asserts that the trial court abused its discretion by ordering Ross to pay Lizabeth's attorney's fees as additional child support because (1) Lizabeth did not request this relief in her pleadings; (2) the trial court provided that postjudgment interest would accrue on its judgment at an incorrect interest rate; and (3) the evidence is insufficient to show that these fees are necessaries for the children and are reasonable.

As to the first two complaints, Ross did not raise them in the trial court, and therefore he failed to preserve error. See Halla v. Halla, No. 14–06–01126–CV, 2007 WL 2367600, at *3 (Tex.App.-Houston [14th Dist.] Aug. 21, 2007, no pet.) (failure to preserve error regarding lack-of-pleadings argument) (mem.op.); Wohlfahrt v. Holloway, 172 S.W.3d 630, 639–40 (Tex.App.-Houston [14th Dist.] 2005, pet. denied) (failure to preserve error regarding postjudgment-interest-rate argument); Hardin, 161 S.W.3d at 23(failure to preserve error regarding lack-of-pleadings argument).

As to the third assertion, Ross initiated the suit, seeking to change the children's primary residence, and Lizabeth counter-petitioned seeking an increase in Ross's monthly child-support obligation. The trial court found that it was in the best interests of the children not to give Ross the exclusive right to designate the children's primary residence, and the trial court increased Ross's monthly child-support obligation from $1,800 to $2,200. Lizabeth submitted evidence showing that she incurred $82,375 in fees for legal services rendered in opposing Ross's modification petition and asserting her counter-petition. The evidence supports a finding that the fees incurred by Lizabeth were for legal services benefitting the children. But, to order a parent to pay attorney's fees as necessaries, there also must be evidence that the fees are reasonable. See Hardin, 161 S.W.3d at 24. Though Lizabeth introduced invoices showing the attorney's fees she incurred, the work performed, the hours billed, and the billing rates, the record contains no testimony as to whether the fees are reasonable. The evidence is insufficient to support the trial court's finding that the $82,375 in attorney's fees are reasonable and, for this reason, the trial court abused its discretion in ordering Ross to pay these fees. See id. We sustain Ross's first issue to this extent.

C. Do the father's other complaints regarding the amicus attorney's fees have merit?

Under his first issue, Ross also asserts that the trial court abused its discretion by ordering him to pay half of the amicus attorney's fees as additional child support because (1) the amicus attorney did not request this relief in her pleadings until an amended pleading filed during trial, without leave of court; (2) the trial court provided that postjudgment interest would accrue on its judgment at an incorrect interest rate; and (3) the amicus attorney produced no evidence that her fees were necessaries for the benefit of the children.

As to the first two complaints, because Ross did not raise them in the trial court, he failed to preserve any error. See Halla, 2007 WL 2367600, at *3; Wohlfahrt, 172 S.W.3d at 639–40;Hardin, 161 S.W.3d at 23. As to the third assertion, Ross has not provided any argument, analysis, or citations to show that the amicus attorney presented no evidence that her fees were necessaries and how this would constitute error by the trial court. Even construing Ross's appellate brief liberally, we cannot conclude that he has briefed these issues adequately. SeeTex.R.App. P. 38.1(f); Pitsenbarger v. Cytec Indus., Inc., No. 14–10–00474–CV, 2011 WL 1312274, at *3 (Tex.App.-Houston [14th Dist.] Apr. 7, 2011, no pet.) (mem. op.); San Saba Energy, L.P. v. Crawford, 171 S.W.3d 323, 337 (Tex.App.-Houston [14th Dist.] 2005, no pet.). Based upon this inadequate briefing, Ross has waived review of his third complaint. See Pitsenbarger, 2011 WL 1312274, at *3;San Saba Energy, L.P., 171 S.W.3d at 337.

D. Did the father preserve error in the trial court regarding the arguments he asserts in support of his contention that the trial court erred in denying the relief requested in his modification petition?

In his second issue, Ross asserts that the trial court abused its discretion by denying the relief Ross sought in his modification petition. Under this issue, Ross asserts that (1) the trial court erred by allowing witnesses to be taken out of order during the bench trial and by taking long breaks during the bench trial, denying Ross a fair trial and resulting in an erroneous ruling; (2) the trial judge failed to pay attention during the bench trial, and did not hear or understand the evidence, denying Ross a fair trial and resulting in an erroneous ruling; and (3) the trial judge erred by conducting his own investigation into the facts when he asked his clerk to obtain information about a petition to enforce a child-support order that Ross's trial lawyer had filed in a different court against Trenton Thomas, Lizabeth's current husband, on behalf of Trenton's ex-wife.

Before this court can reverse the trial court's judgment based upon these complaints, Ross must have presented these complaints to the trial court and obtained an adverse ruling. SeeTex.R.App. P. 33.1(a); Kupersmith v. Weitz, No. 14–05–00167–CV, 2006 WL 3407832, at *3 (Tex.App.-Houston [14th Dist.] Nov. 28, 2006, no pet.) (mem. op.). A review of the appellate record shows that Ross did not voice any of these complaints in the trial court or obtain rulings from the trial court. Ross has not asserted that any of these alleged errors would constitute fundamental error, nor has Ross cited any case addressing this issue. The Supreme Court of Texas has concluded that, in the context of civil appeals, fundamental error is a narrow doctrine. See In re B.L.D., 113 S.W.3d 340, 350–52 (Tex.2003). None of the alleged errors fall within the narrow scope of the fundamental-error doctrine recognized by the Supreme Court of Texas. See id. Therefore, fundamental error does not apply to these complaints.

See id. We conclude Ross failed to preserve error as to these complaints. See Kupersmith, 2006 WL 3407832, at *3.

Ross has cited no case holding that a trial judge reversibly erred by failing to pay attention during a bench trial or by failing to hear or understand evidence during a bench trial. We express no opinion regarding this legal theory.

Under the second issue, Ross also asserts that the trial court erred by making various comments during the bench trial that allegedly showed the trial court's purported bias or prejudice in favor of Lizabeth and against Ross or his attorney. As to these comments, Ross was required to preserve error in the trial court by objecting when the trial court made the comments.

See Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex.2001) (per curiam); Elloway v. Pate, 238 S.W.3d 882, 900 (Tex.App.-Houston [14th Dist.] 2007, no pet.). Ross did not object to any of the allegedly improper comments when the trial court made them.

A complaining party need not object in the trial court if any harm from the comment could not have been cured by proper instructions from the judge to the jury. See Francis, 46 S.W.3d at 241;Elloway, 238 S.W.3d at 900. Because the case under review involved a bench trial, this exception does not apply. Ross does not argue otherwise.

Therefore, Ross has waived this complaint by failing to preserve error in the trial court. See Francis, 46 S.W.3d at 241;Elloway, 238 S.W.3d at 900.

Though not required to preserve error, we note that Ross did not file a motion to recuse the trial judge.

We overrule the second issue.

V. Conclusion

Under the unambiguous language of the applicable statutes, in a non-enforcement modification suit the court of continuing jurisdiction has the jurisdiction and authority to order a parent to pay reasonable attorney's fees for legal services benefitting the children as additional child support, based upon the parent's duty to pay for the children's necessaries. The trial court may order such fees paid to the other parent or to a third party, such as an amicus attorney. The reasons stated in Moers and the cases following it for reaching the opposite conclusion conflict with the plain meaning of the applicable statutes. Accordingly, we uphold the conclusion reached in Hardin and In re J.A.D. See In re J.A.D., 2010 WL 2649961, at *1–4;Hardin, 161 S.W.3d at 24–27. To the extent other opinions of this court conflict with the analysis in this opinion, we disapprove them.

The evidence supports a finding that the fees incurred by Lizabeth were for legal services benefitting the children. But the evidence is insufficient to support the trial court's finding that the attorney's fees that the trial court ordered Ross to pay are reasonable. Accordingly, the trial court abused its discretion in ordering Ross to pay these fees, and to this extent, we reverse the trial court's order and remand for a determination of the amount of reasonable attorney's fees incurred by Lizabeth for legal services benefitting the children. Because Ross has failed to preserve error or inadequately briefed the remaining complaints in his appellate brief, we overrule these challenges. The remainder of the trial court's order is affirmed. The en banc court consists of Chief Justice HEDGES and Justices FROST, SEYMORE, BROWN, BOYCE, CHRISTOPHER, JAMISON, and McCALLY. Justice ANDERSON is not participating.
Justices SEYMORE, BROWN, BOYCE, and JAMISON join the En Banc Majority Opinion authored by Justice FROST. Justice FROST issues a separate En Banc Concurring Opinion in which Justices SEYMORE and BROWN join. Justice JAMISON issues an En Banc Concurring Opinion. Justice CHRISTOPHER issues an En Banc Dissenting Opinion in which Chief Justice HEDGES and Justice McCALLY join.

MARTHA HILL JAMISON, Justice, en banc concurring.

I join the majority's holding that the trial court did not abuse its discretion in awarding attorney's fees as child support under the facts of this case. I write separatelyto emphasize and distinguish the propriety of the trial court's award of fees to the amicus attorney.

The amicus attorney is a relatively new statutory position.

The Family Code defines an “amicus attorney” as “an attorney appointed by the court in a suit ... whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child.” Tex. Fam.Code § 107.001(1) (emphasis added).

See Act of June 18, 2003, 78th Leg., R.S., ch. 262, 2003 Gen. Laws 1173, 1173–83 (current version at Tex. Fam.Code §§ 107.001–.056).

Although often considered a lawyer for the child, the amicus is appointed to assist the court.

Our paramount goal in suits that determine the needs of a child is also to protect the child's best interests. Rodriguez v. Rodriguez, 860 S.W.2d 414, 417 n. 3 (Tex.1993); see alsoTex. Fam.Code § 153.002.

The court may appoint an amicus only if it finds the appointment necessary to determine the child's best interests and may not require an appointed amicus to serve without reasonable compensation. See id. § 107.021(b)(2)-(3); see also In Re Collins, 242 S.W.3d 837, 844 & n. 16 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

.Tex. Fam.Code § 107.001(1); see also In Re Collins, 242 S.W.3d 837, 843–44 (Tex.App.-Houston [14th Dist.] 2007, no pet.).

Here, the trial court found that “all amicus attorney's fees in this case are reasonable and necessary, as necessaries for the benefit and best interest of the children,” and ordered appellant to pay half of the amicus attorney's fees “as additional child support.” The majority correctly points out that Family Code section 107.023 explicitly authorized the trial court's finding that the amicus attorney's fees are “necessaries.” SeeTex. Fam.Code § 107.023(d). An order to pay amicus attorney's fees in the nature of child support thus should be interpreted as an order to pay such fees as “necessaries” for the children's benefit, consistent with the statute. See id.

In this case, the trial court made specific findings; however, even without such findings, the appointment of the amicus attorney can only be made if the court finds her services “necessary” to assist in protecting the child's best interests. See id.§§ 107.001(1), 107.021(b)(2). The trial court should be given broad discretion in making this determination. Since the court is not permitted to require an amicus to serve without reasonable compensation, the court must use all available tools to ensure that the amicus attorney is paid, including, when permitted by the statute, ordering such fees to be paid in the nature of child support. See id. § 107.023(d). This policy encourages competent attorneys to accept amicus attorney assignments and fulfill the vital role “to assist the court in protecting a child's best interests.” Id.§§ 107.001(1); see also id. § 153.002.

With these comments, I concur in the court's holding that the trial court did not abuse its discretion in determining the amicus and attorney's fees to be “necessaries” for the children's benefit and ordering them to be paid as child support.

KEM THOMPSON FROST, Justice, enc banc concurring.

Today this court, sitting en banc, upholds its decision in Hardin v. Hardin and holds that under the Family Code, the trial court in a non-enforcement modification suit may order a parent to pay, as additional child support, reasonable attorney's fees for legal services benefitting the children. This holding means that a split of authority persists on this issue between this court and the other Houston-based court of appeals. This unwelcome consequence of today's decision shines a light on the vexing problems inherent in the unique jurisdictional scheme governing Texas's intermediate appellate courts.

The Texas court system is the only court system in the United States that has intermediate appellate courts whose geographical jurisdiction overlaps.

The First Court of Appeals District and the Fourteenth Court of Appeals District both are composed of the same ten counties.

See Miles v. Ford Motor Co., 914 S.W.2d 135, 139 (Tex.1995).

A high volume of litigation in this ten-county region, which includes one of the nation's largest metropolitan areas, fuels a big appellate case load. In cases in which there has been no prior appeal, appeals from these ten counties are randomly assigned between the First Court and the Fourteenth Court. Sometimes this court and our esteemed sister court disagree about the law. The case under review is a prime example of such a conflict. For over seven years there has been a conflict between our opinion in Hardin and the First Court's opinion in In re Moers.

SeeTex. Gov't Code Ann. 22.201 (West Supp.2010). These ten counties are the counties of Austin, Brazoria, Chambers, Colorado, Fort Bend, Galveston, Grimes, Harris, Waller, and Washington. SeeTex. Gov't Code Ann. 22.201.

See Hardin v. Hardin, 161 S.W.3d 14, 25–26 (Tex.App.-Houston [14th Dist.] 2004), judgm't vacated, op. not withdrawn, No. 14–03–00342–CV, 2005 WL 310076, at *1 (Tex.App.-Houston [14th Dist.] Feb. 10, 2005, no pet.) (mem. op.); In re Moers, 104 S.W.3d 609, 611–12 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

Under the Texas Rules of Appellate Procedure, the method for resolving such a split is review by the Supreme Court of Texas.

Unlike the Texas Court of Criminal Appeals, which has the power to review a court of appeals decision on its own motion,

SeeTex.R.App. P. 53.1, 56.1.

the Supreme Court of Texas may review a court of appeals decision only if a party timely files a petition for review.

SeeTex.R.App. P. 66.1, 67.1.

In Moers,Hardin, and almost all of the subsequent cases addressing this issue, no party filed a petition for review in the Supreme Court of Texas, and the high court had no opportunity to resolve this unfortunate split between the two Houston-based courts of appeals. As long as a conflict persists between these two appellate courts, serious and recurring problems abound for trial courts in the ten counties within the geographical jurisdiction of these courts, as well as for the lawyers and parties who litigate in this region. The most troubling consequence of Texas's peculiar jurisdictional regime is the difficult burden it places on litigants and their lawyers who, at times, must make important and costly litigation or settlement decisions on pending cases in which the outcome likely will turn entirely on the appellate court to which the appeal is randomly assigned. Rather than make decisions based on an evaluation of the strength of the case, litigants caught in split-of-authority cases must proceed blindly with the hope that their case will randomly fall in the court that has the more favorable rule.

SeeTex.R.App. P. 53.1, 53.7.

The trial judges face a similar dilemma. In cases involving an issue upon which there is an unresolved disagreement between the Houston-based courts of appeals, there is no apparent basis for determining which precedent is binding on the trial court under the doctrine of vertical stare decisis. Despite at least two prior opinions from a court of appeals in whose district the trial court sits, the trial court has no mandatory precedent to apply and no clear basis for determining which of the two conflicting rules to follow. The trial judge's ruling will be held to be correct or incorrect based on which court of appeals is called upon to review the case, a critically important fact not known to the trial judge or the litigants until after the decisions are made. If the trial judge guesses wrong and the court of appeals to which the case is assigned determines that the error was harmful, then the trial court will be reversed, and the case may be remanded for retrial. When the two courts with coterminous jurisdiction are on opposite sides of an issue, parties, counsel, and trial judges are forced to play appellate roulette.

This uncertainty for the trial courts, counsel, and litigants is especially problematic when the issue is an important and frequently recurring one like the issue we encounter today.

One former justice of the Supreme Court of Texas and a former member of both Houston-based courts of appeals has described this predicament as “practicing law on a guess and a gamble.”

See Miles, 914 S.W.2d at 139.

Public perception of fairness is diminished when the certainty and predictability of court decisions is compromised. But the public's confidence in our courts is strengthened by the assurance that the courts in a single jurisdiction view the law uniformly and apply it consistently.

Scott Brister, Is It Time to Reform Our Courts of Appeals?Hous. Law., Mar.-Apr. 2003, at 22, 26.

For these reasons it is in the best interest of all concerned that, whenever possible, the two Houston-based courts of appeals achieve alignment. But this desirable goal presents a number of practical challenges for both courts, not the least of which is the enormous and constant commitment of time and judicial resources necessary to manage the task. Compounding this difficulty is the lack of any mechanism at the court-of-appeals level designed to eliminate conflicts between these two appellate courts and to bring uniformity to the jurisprudence of two districts that share the same geographical jurisdiction.

Panels of this court are bound to follow this court's precedent, and if a panel occasionally overlooks this court's precedent, the members of the court may resolve any resulting conflict by means of en banc review.

In a case involving a very close legal issue in which one of the Houston-based courts of appeals already has taken a position, justices on the other Houston-based court of appeals may adopt the rule from the sister court in the interest of fostering uniformity and predictability in their shared jurisdiction. But, practically speaking, most legal issues are not that close and, in most cases, appellate judges are likely to adopt the rule that in their judgment is correct, even if in doing so they create a conflict between the two Houston-based courts of appeals.

SeeTex.R.App. P. 41.2(c); Glassman v. Goodfriend, 347 S.W.3d 772, 781–82 & n. 8 (Tex.App.-Houston [14th Dist.] 2011, pet. denied) (en banc).

En banc review is well-suited to resolve conflicts in one court of appeals's precedent. But, with few exceptions, en banc review will resolve a conflict between the two Houston-based courts of appeals only if a majority of the en banc court happens to make the same judgment as the other appellate court regarding the legal issue at hand.

If there is no conflict in the precedent of this court and if a majority of the members of this court sitting en banc concludethat a precedent of this court is correct, then a conflict between that precedent and precedent from the First Court cannot be resolved by en banc review in this court. If a majority of the members of this court sitting en banc conclude that a precedent that conflicts with our sister court is wrongly decided and should be overruled, then the basis for en banc review is the conclusion that the precedent was wrongly decided, rather than the conflict between sister courts. The sitting justices from the First Court cannot sit en banc on the Fourteenth Court and vice versa.

See Glassman, 347 S.W.3d 772, 2011 WL 2150225, at *6–9 (en banc opinion of this court agreeing with prior en banc opinion from the First Court of Appeals).

For these reasons, en banc review is not well-suited to resolve conflicts between these appellate courts.

SeeTex.R.App. P. 41.2(a).

Years ago, the Supreme Court of Texas took notice of the manifest problems created by overlaps in Texas appellate districts. See Miles, 914 S.W.2d at 139. This “disfavored” system has been harshly criticized by members of the legal community who have experienced firsthand the unwanted consequences of our state's unusual and increasingly problematic intermediate appellate court structure. Many have called for the combination of the two Houston-based courts into a single district, to eliminate the growing jurisprudential problems as well as the extraordinary time and expense that are devoted to dealing with the conflicts and confusion inherent in the current scheme.

Were the two courts to be combined into a single district, conflicts between cases like Moers and Hardin could be resolved through the en banc process. That is not an option under the existing structure.

See Brister, 40 Hous. Law. at 25–27.

TRACY CHRISTOPHER, Justice, en banc dissenting.

Recognizing that no statute permits a judgment for attorney's fees as child support in a non-enforcement modification suit, the majority changes the question to whether any statute prohibits this award. Because the legislature has not expressly prohibited the taxation of attorney's fees as child support in the modification context, the majority concludes that a trial court has the inherent power to render judgment as such. What the majority fails to realize is that the Texas Family Code is a comprehensive statutory scheme that specifically addresses when a judgment for attorney's fees may be enforceable in the same manner as child support. Under this scheme, attorney's fees are taxable as child support exclusively in suits of enforcement. We should not frustrate the statutory framework by holding that the trial court has the inherent discretion to make such an award in a non-enforcement modification suit. For this reason and the reasons that follow, I respectfully dissent.

I. The Texas Family Code Contains No Provision Allowing Attorney's Fees to Be Taxed As Child Support in a Non–Enforcement Modification Suit

The focus of today's en banc consideration is the manner in which a trial court may tax a judgment for attorney's fees in a non-enforcement modification suit. No one disputes that the trial court may tax the judgment as costs. The issue for this court to decide is whether a trial court, in the same context, has the added discretion to tax the judgment as child support instead.

The difference between a judgment for costs and a judgment for child support lies primarily in the varying methods of enforcementincumbent to each. As costs, a judgment for attorney's fees is enforceable “by any means available for the enforcement of a judgment for debt.” Tex. Fam.Code Ann. § 106.002(b) (West 2008). The critical point here is that a judgment for costs may never be enforced by contempt. This prohibition is compelled by article I, section 18 of the Texas Constitution, which plainly states, “No person shall ever be imprisoned for debt.” Tex. Const. art. I, § 18.

When taxed as child support, the judgment is treated just like an ordinary arrearage for unpaid support. Because parents owe this support under a legal duty to their children, fees rendered in the nature of child support are not considered traditional debts within the meaning of Article I, Section 18. See Ex parte Hall, 854 S.W.2d 656, 658 (Tex.1993); Ex parte Helms, 152 Tex. 480, 259 S.W.2d 184, 188 (1953). To the contrary, judgments taxed as child support are specifically enforceable by contempt and any other means available for the enforcement of child support. Tex. Fam.Code Ann. § 157.167(a). These means include the garnishment of wages, as well as the suspension of drivers licenses and other government-issued permits. See Tex. Const. art. XVI, § 28; Tex. Fam.Code Ann. §§ 158.0051, 232.003. The Constitution does not expressly authorize the enforcement of a judgment for debt in similar fashion, nor does any other statute within the Texas Family Code.

A. Section 106.002 Provides for the Award of Attorney's Fees As a “Debt” in a Title 5 Proceeding

The parents in this case filed suit under Title 5 of the Texas Family Code, which the legislature has labeled “The Parent–Child Relationship and the Suit Affecting the Parent–Child Relationship.” Within all of Title 5, there is only a single global provision regarding judgments for attorney's fees, and it reads as follows:

(a) In a suit under this title, the court may render judgment for reasonable attorney's fees and expenses and order the judgment and postjudgment interest to be paid directly to an attorney.

(b) A judgment for attorney's fees and expenses may be enforced in the attorney's name by any means available for the enforcement of a judgment for debt.
Tex. Fam.Code Ann. § 106.002. This statute is organized under the “General Provisions” of Subtitle A, and by its own terms, it applies to all suits affecting the parent-child relationship, making no apparent distinction between enforcement and non-enforcement modification proceedings.
B. The Family Code Provides Only One Additional Provision for Attorney's Fees “As Costs” in a Modification Action

Subtitle B of Title 5 contains additional provisions on the subject of attorney's fees, but unlike Section 106.002, they are not generally applicable to all suits affecting the parent-child relationship. Only one such statute is unique to the modification context, and it is Section 156.005, which states the following: “If the court finds that a suit for modification is filed frivolously or is designed to harass a party, the court shall tax attorney's fees as costs against the offending party.” Id. § 156.005. This provision represents the only occasion where the words “attorney's fees” appear in Chapter 156, the chapter specifically reserved for all suits pertaining to modification.

C. The Only Statute Authorizing an Award of Attorney's Fees As “Child Support” Is Contained in Chapter 157 of the Family Code, the Chapter Designated for All Actions of “Enforcement”

Section 157.167 is the only statute that expressly authorizes a judgment for attorney'sfees to be enforced in the nature of child support. In pertinent part, the statute provides as follows:

Section 158.0051 specifies that the trial court “may render an order that income be withheld [and] applied towards the satisfaction of any ordered attorney's fees and costs resulting from an action to enforce child support under [Title 5].” Id. § 158.0051(a) (emphasis added). There is no like provision for attorney's fees resulting from a non-enforcement modification suit.

E. The Statutes Cited by the Majority Do Not Contain the Words “Attorney's Fees”

Without quoting the statutory sections in its opinion, the majority states, “Under applicable statutes, the trial court was clothed with jurisdiction and authority to order Ross to pay these attorney's fees as additional child support. SeeTex. Fam.Code Ann. §§ 151.001, 154.001, 155.003, 156.401.” Ante, at 704. Not one of these sections contains the words “attorney's fees” and not one of these sections provides that an award of attorney's fees can be taxed as additional child support.

F. Chapter 154, Entitled “Child Support,” Does Not Mention Attorney's Fees

Chapter 154 provides a comprehensive guideline to the trial court, setting the amounts of child support awardable and providing for enforcement through contempt and wage withholding as to those periodic payments. Tex. Fam.Code Ann. § 154.007. It also provides for wage withholding for medical support obligations. Id. § 154.183. It defines interest due on child support as part of child support. Id. § 154.267.

Chapter 154 never defines attorney's fees as a component of child support. It does not provide for wage withholding for attorney's fees. It does not provide that a “necessaries” award is a component of child support or that a “necessaries” award can be enforced by contempt or wage withholding.

II. A Statute's Silence Has Significance

In my opinion, the language and placement of these statutes suggest that attorney's fees may only be taxed as child support under the enforcement provisions of Section 157.167. If attorney's fees were intended to be taxable as child support in a non-enforcement modification suit, I believe the legislature would have expressed that intent under Chapter 156, where all of the other modification provisions are organized. See In re Moers, 104 S.W.3d 609, 612 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (observing that the legislature has only expressly authorized a judgment for attorney's fees as child support in the context of enforcement, and that restricting the availability of attorney's fees as child support to suits of enforcement corresponded with legislative intent). As Chapter 156 is written now, however, there can be no textual basis for ascertaining such intent. Chapter 156 only contains a single statute discussing the subject of attorney's fees, and its terms require the trial court to tax the judgment as costs if a modification suit is frivolous or brought with the purpose of harassment. SeeTex. Fam.Code Ann. § 156.005. In ordinary modification suits, those where frivolous filings and harassment are not at issue, the only statute authorizing a judgment for attorney's fees is the global provision of Section 106.002—and its text makes no allowance for a judgment enforceable as child support. See id. § 106.002 (permitting a judgment for attorney's fees to be enforceable as a judgment for debt in any suit under Title 5).

“A statute's silence can be significant. When the Legislature includes a right or remedy in one part of a code but omits it in another, that may be precisely what the Legislature intended.” PPG Indus., Inc. v. JMB/Houston Ctrs. Partners Ltd. P'ship, 146 S.W.3d 79, 84 (Tex.2004). In the absence of any comparable provision under Chapter 156, I read Section 157.167 as a deliberate choice on the part of the legislature to restrict the taxation of attorney's fees as child support to suits involving the enforcement of a prior order. This interpretation corresponds with the logical notion that the legislature appreciated the practical disparity between modification and enforcement suits; a judgment against a parent who is presently behind in child support will almost certainly require more compelling means of enforcement than a judgment against a parent with no proven history of arrears. See Moers, 104 S.W.3d at 611–12 (recognizing the serious consequences that stem from taxing attorney's fees as child support, and observing the effort to limit their expansion beyond the enforcement context, where the threat of contempt is most justified); see also Markowsky v. Newman, 134 Tex. 440, 136 S.W.2d 808, 812 (1940) (observing that a court may consider the evils a statute seeks to remedy when ascertaining legislative intent). This interpretation also appreciates the longstanding tradition that the power to punish by contempt must be exercised “with great caution, and only as a preservative, and not as a vindictive measure.” Herring v. Houston Nat'l Exch. Bank, 113 Tex. 337, 255 S.W. 1097, 1104 (1923).

Where the legislature has made specific enactments on the subject of attorney's fees, there is no need to turn to other provisions containing general terms. I would conclude that the legislature fully addressed the subject of attorney's fees in suits affecting the parent-child relationship, and Title 5 makes clear that attorney's fees may only be considered as child support in enforcement actions under Chapter 157.

III. The Majority's Conclusion Has No Textual Support in Any Provision of the Texas Family Code

A. The Statutes Cited by the Majority Do Not Permit a Judgment for Attorney's Fees As Child Support in a Non–Enforcement Modification Suit

The majority claims that “under the unambiguous language of the Family Code,” the trial court has a “sound statutory basis” for ordering the payment of attorney's fees as child support in a non-enforcement modification suit. Ante, at 700–01, 701–02. In support of this conclusion, the majority relies exclusively on Sections 151.001, 154.001, 155.003, and 156.401. Ante, at 700–04. The majority's analysis should be rejected for the simple reason that none of these statutes contains the words “attorney's fees.” Without those words, the majority's construction cannot possibly reflect the legislature's intent on this subject.

Although the majority relies on the collective weight of four statutes for its conclusion, the majority only quotes one of those statutes, Section 151.001, in Part IV.A.2 of its opinion. Ante, at 701. The subsections recited by the majority provide that “[a] parent of a child has ... the duty to support the child,” and “[a] parent who fails to discharge the duty of support is liable to a person who provides necessaries to those to whom support is owed.” Tex. Fam.Code Ann. § 151.001(a)(3), (c). The majority apparently believes that Section 151.001(c) authorizes a judgment to be taxed as child support because the legislature has codified a parent's common law liability for “necessaries.” What the majority fails to recognize is that this liability accrues only upon a parent's “fail[ure] to discharge the duty of support.” Id. § 151.001(c). The failure to provide support is a matter incumbent to enforcement proceedings, not suits for modification. The majority strains all meaning from the text by citing this provision as authority that a judgment may be taxed as child support in a non-enforcement modification suit.

B. The Majority's Analysis Is Contrary to the Intent of the Legislature

The majority's statutory construction should be rejected for the additional reason that it renders Section 157.167 superfluous. According to the majority, “the trial court was clothed with jurisdiction and authority” to order the payment of attorney's fees as child support under Sections 151.001, 154.001, 155.003, and 156.401. Ante, at 704. But if the trial court has the discretion to render judgment for attorney's fees as child support under these four provisions, without regard to the nature of the underlying proceeding, the legislature would have no need to specify that attorney's fees may be taxed as child support upon a finding that “the respondent has failed to make child support payments,” as provided under Section 157.167. The majority does not explain how Section 157.167 can be effective apart from the four statutes on which it relies. SeeTex. Gov't Code Ann. § 311.021 (West 2005) (establishing presumption that every statute is intended to be effective).

The majority's analysis is also flawed in that it attributes the legislature with having an intent that is inconsistent with its own enactments. As the majority observes in Footnote Eight of its opinion:

If a trial court finds attorney's fees for enforcement of an order for possession of or access to a child to be necessaries for the benefit of the child and awards them as additional child support, it may be that section 157.167(b) would prohibit the trial court from enforcing this order by means of income withholding.
Ante, at 707 n. 8. This statement suggests that the legislature did not fully appreciate the consequences of taxing a judgment in the nature of child support. Under the majority's construction of the “relevant statutes,” attorney's fees that represent necessaries are enforceable by any means available for the enforcement of child support, including wage withholding. But under the express language of Section 157.167(b), wage withholding is not available if a court finds that a parent has failed to comply with an order for possession of or access to a child. SeeTex. Fam.Code Ann. § 157.167(b). The majority can offer no explanation as to why the legislature would allow wage withholding in suits where there has been no failure of support, but forbid the same where judicial intervention is “necessary to ensure the child's physical or emotional health or welfare.” See id. The inconsistency required by the majority's holding was not intended by the legislature. Rather than fight this inconsistency, the majority should simply concede that its own construction is contrary to what the legislature actually intended, which is to restrict the taxation of attorney's fees as child support to suits involving the enforcement of a prior order.
C. Section 107.023 Does Not Permit a Judgment for Amicus Fees in the Nature of Child Support

The majority finally claims that fees awarded to an amicus attorney are enforceable as child support under the provisions of Section 107.023. Ante, at 709–11. In pertinent part, that statute provides the following: “The court may determine that fees awarded ... 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.” Tex. Fam.Code Ann. § 107.023(d).

I do not believe this provision supports the majority's conclusion. The trial court in this case taxed the amicus attorney's judgment as “additional child support,” and there is no language in the statutory text equating necessaries with child support. In fact, the statute makes no mention of a judgment for fees or the manner in which it may be enforced. And, as I explain in the sections that follow, there is no authority under the entire body of jurisprudence in this state holding that a judgment for necessaries is enforceable in the same manner as child support.

IV. The Majority's Decision Is Not Supported by the Case Law

A. The Texas Supreme Court Has Never Held That Attorney's Fees May Be Taxed As Child Support in a Non–Enforcement Modification Suit

Many Texas courts have held that attorney's fees may be construed as necessaries incurred for the benefit of the child. Even the Texas Supreme Court has adhered to that position, as the majority recognizes in three citations, some dating back as far as the nineteenth century. See ante, at 701 (citing In re H.V., 252 S.W.3d 319, 327 n. 55 (2008); Searcy v. Hunter, 81 Tex. 644, 17 S.W. 372, 373 (Tex.1891); and Askey v. Williams, 74 Tex. 294, 11 S.W. 1101, 1101–02 (Tex.1889)). Relying on these cited authorities, the majority believes that a judgment for attorney's fees may be enforced as child support because necessaries, like child support, pertain directly to a parent's legal duty of support. This proposition is not supported by the issues addressed in any of the three cited cases. All three cases examine subjects other than the manner in which a judgment for attorney's fees may be enforced, and none of them arises in the context of a dispute under Title 5, or its statutory predecessor. See Askey, 11 S.W. at 1101–02 (addressing the ownership of a tract of land that a minor had previously mortgaged to a criminal defense attorney)

; Searcy, 17 S.W. at 372–73 (addressing the ownership of a tract of land that a minor had previously conveyed to a law firm)

The issue in Askey was whether the appellee had established title to an undivided one-third interest in a tract of land. Askey, 11 S.W. at 1101. The land at the center of this controversy had, at an earlier point, descended to a minor, who later mortgaged the property and issued a promissory note as a means of securing the legal services of a criminal defense attorney. Id. The land was eventually conveyed when the note matured and the legal fees went unpaid. Id. The supreme court held that the “contracts of an infant for necessaries are neither void nor voidable” and that “the services of an attorney should be held necessary to an infant, where he is charged by an indictment with crime.” Id. Although the minor was bound to pay the attorney's fees, the court held that he could have avoided the mortgage had he paid the fees within a reasonable time after attaining his majority. Id. at 1102. The conveyance was upheld where the evidence showed that the minor made no offer to pay anything upon reaching majority. Id.

; H.V., 252 S.W.3d at 324–27 (addressing whether evidence was properly suppressed in a juvenile justice case).

In Searcy, a minor conveyed her interest in land to a law firm in consideration of certain legal services provided to her. Searcy, 17 S.W. at 372. When the minor died, suit was filed to disaffirm the deed. Id. Recognizing that a minor's deed is voidable, rather than void, the supreme court held that if the deed were to be disaffirmed, the minor must have attempted to disaffirm it within a reasonable time after attaining majority. Id. at 372–73. The cause was remanded to the trial court for a determination of whether the minor's survivor had attempted to disaffirm the deed within a reasonable time. Id. at 373. Because the legal services were also found to be necessaries, the court held that if the deed were to be disaffirmed, reasonable compensation would still be owed. Id. Thus, the court remanded the case for the additional determination of whether the services were beneficial to the minor. Id.

These authorities contain general suggestions that the services of an attorney may be “necessaries” for the benefit of the child, but they do not indicate that “necessaries” and “child support” are interchangeable terms, nor do they provide any basis that might enlighten our understanding of the statutory distinctions between an enforcement suit and a non-enforcement modification suit. Accordingly, I do not believe these authorities can support the majority's conclusion that a judgment for attorney's fees may be taxed as child support in a non-enforcement modification suit.

In H.V., the supreme court was called to determine whether a minor invoked his Fifth Amendment right to counsel when, during a custodial interrogation, he stated that he “wanted his mother to ask for an attorney.” H.V., 252 S.W.3d at 321. After considering the objective circumstances of the interrogation, including the minor's age, the majority concluded that the minor's request was unambiguous, and that the suppression order was properly granted. Id. at 327. The dissent would have held that the statement required clarification, and therefore, was not an invocation of the right to counsel. Id. at 330 (Jefferson, C.J., concurring in part and dissenting in part). The dissent objected to the majority's conclusion that the minor's age “at least hindered if it did not prevent him from [hiring private counsel] himself.” Id. at 335. Citing Askey, the dissent observed that a minor has always had the right to contract for necessaries, including defense counsel, because “it would be unreasonable to deny him the power to secure the means of defending himself.” See Askey, 11 S.W. at 1101. In a response consigned only to a footnote, the majority stated, “We need not decide today whether [Askey ] survives the rule announced 78 years later that juveniles have a constitutional right to counsel; we merely note that it remains the duty of a parent in the first instance to pay for such necessaries.” H.V., 252 S.W.3d at 327 n. 55 (citations omitted).

B. The Majority Errs by Relying on Hardin Because That Decision Has No Basis in Statutory or Common Law

In Part IV.A.2 of its opinion, the majority concludes “that the trial court in a non-enforcement modification suit may order a parent to pay reasonable attorney's fees as child support based upon the parent's legal duty to pay for the children's necessaries.” Ante, at 704–05. The majority cites a total of nine cases for this proposition, but only one of those cases—Hardin v. Hardin, 161 S.W.3d 14 (Tex.App.-Houston [14th Dist.] 2004, no pet.)—actually reaches the merits on this issue. As I will explain, however, Hardin was incorrectly decided.

In Hardin, this court held that attorney's fees may be taxed as child support “if the services performed by the attorney have a relationship to the needs of the child.” Hardin, 161 S.W.3d at 25. Not a single statute was cited in support of this proposition—an omission conceded by the majority.

See ante, at 701–02 (recognizing the Hardin Court's failure to cite to the same statutory authority cited in today's majority decision). In the absence of any statutory authority, the Hardin Court relied instead on six decisions from the intermediate courts of appeals, apparently suggesting that Texas courts have long recognized that necessaries are enforceable as child support. Hardin, 161 S.W.3d at 26–27 (citing In re A.J.L., 108 S.W.3d 414 (Tex.App.-Fort Worth 2003, pet. denied); In re H.S.N., 69 S.W.3d 829 (Tex.App.-Corpus Christi 2002, no pet.); London v. London, 94 S.W.3d 139 (Tex.App.-Houston [14th Dist.] 2002, no pet.); Ex parte Wagner, 905 S.W.2d 799 (Tex.App.-Houston [14th Dist.] 1995, orig. proceeding); Roosth v. Roosth, 889 S.W.2d 445 (Tex.App.-Houston [14th Dist.] 1994, writ denied); and Daniels v. Allen, 811 S.W.2d 278 (Tex.App.-Tyler 1991, no writ)).

The majority correctly observes that the Hardin Court did cite to Section 154.001, but this citation followed the familiar maxim that “parents have a legal duty to support their children.” For its ultimate holding—the rule that is the focus of today's en banc decision—the only direct citation from the Hardin Court is to Roosth v. Roosth, a decision that never reached the merits of how a judgment for attorney's fees may be enforced. See Hardin, 161 S.W.3d at 25;Roosth v. Roosth, 889 S.W.2d 445, 456 (Tex.App.-Houston [14th Dist.] 1994, writ denied) (holding merely that the evidence was sufficient to support the award of attorney's fees).

The cases cited in Hardin merely restate that the services of an attorney are necessary in certain proceedings. Their issues do not involve the manner in which attorney's fees may be taxed, and thus, they fail to demonstrate that necessaries are enforceable as child support per se. See A.J.L., 108 S.W.3d at 421–22 (deciding whether a nonparent had a legal duty of support that would require him to pay attorney's fees in the nature of child support); H.S.N., 69 S.W.3d at 834–35 (deciding whether attorney's fees for a motion to transfer must be segregated from attorney's fees for a motion to modify); London, 94 S.W.3d at 145–47 (deciding whether a judgment for reasonable and necessary attorney's fees was supported by the evidence); Wagner, 905 S.W.2d at 803–04 (deciding whether a parent could be held in contempt upon his failure to pay attorney's fees that accrued in a suit to establish paternity)

; Roosth, 889 S.W.2d at 455–56 (deciding whether the evidence was legally and factually sufficient to support the award of attorney's fees); Daniels, 811 S.W.2d at 279–80 (deciding whether attorney's fees were adequately pleaded).

In Wagner, we denied the relator's writ of habeas corpus because the fees were taxed in the nature of child support, and as such, they were not traditional debts within meaning of article I, section 18 of the Texas Constitution. Because the attorney's fees accrued in what we explicitly noted was “an enforcement proceeding,” Wagner lends no support to Hardin 's, conclusion that attorney's fees may be taxed as child support in a non-enforcement modification suit under a necessaries theory of recovery. See Wagner, 905 S.W.2d at 803 (“Thus, a paternity action is by its very nature an enforcement proceeding; a proceeding that recognizes a man as a child's father and enforces his legal obligation to support his child.”).

To whatever extent that A.J.L. and Daniels recognize the necessaries theory of recovery, it is worth noting that the Fort Worth and Tyler Courts of Appeals have since held, with unmistakable clarity, that attorney's fees are taxable as child support exclusively in suits of enforcement. See In re V.T., No. 2–03–248–CV, 2004 WL 1353024, at *3 (Tex.App.-Fort Worth June 17, 2004, pet. denied) (mem. op.) (“For the reasons expressed in In re Moers, we join our sister courts in Houston, Waco, and Dallas in holding that attorney's fees and costs may not be taxed or characterized as child support when they are incurred in a suit brought to modify the parent-child relationship that does not involve the enforcement of a child support obligation.” (footnote omitted)); In re M.A.F., No. 12–08–00231–CV, 2010 WL 2178541, at *9 (Tex.App.-Tyler May 28, 2010, no pet.) (mem. op.) (“Attorney's fees and costs may not be taxed or characterized as child support when they are incurred in a suit brought to modify the parent-child relationship that does not involve the enforcement of a child support obligation.”).

Because Hardin has no foundation in the Texas Family Code or the cases on which it relies, I would vote to overrule it.

C. No Other Court Has Subscribed to the Majority's Rule of Decision

In addition to Hardin and the three supreme court cases already discussed, the majority claims that other courts have correctly decided that attorney's fees may be taxed as child support in a non-enforcement modification suit. Ante, at 704–05. The majority relies on five cases in particular. See id. (citing In re J.A.D., No. 14–08–00689–CV, 2010 WL 2649961, at *1–4 (Tex.App.-Houston [14th Dist.] July 6, 2010, no pet.) (mem. op.); In re A.J.J., No. 2–04–265–CV, 2005 WL 914493, at *5–6 (Tex.App.-Fort Worth Apr. 21, 2005, no pet.) (mem. op.), disapproved on other grounds by Iliff v. Iliff, 339 S.W.3d 74 (Tex.2011); Stevens v. Stevens, No. 05–03–00249–CV, 2003 WL 21999900, at *2–3 (Tex.App.-Dallas Aug. 25, 2003, no pet.) (mem. op.); A.J.L., 108 S.W.3d at 421–22; and In re W.J.S., 35 S.W.3d 274 (Tex.App.-Houston [14th Dist.] 2000, no pet.)). The majority's argument fails because, as with the authorities from the Texas Supreme Court, all five cases stand for completely separate propositions. See J.A.D., 2010 WL 2649961, at *2–4 (whether a “prevailing party” could be ordered to pay attorney's fees)

; A.J.J., 2005 WL 914493, at *5 (whether the evidence was sufficient to support a judgment for attorney's fees); Stevens, 2003 WL 21999900, at *2 (whether the evidence supported the trial court's decision to modify the parent-child relationship); A.J.L., 108 S.W.3d at 421–22 (whether a nonparent could be ordered to pay attorney's fees in the nature of child support); W.J.S., 35 S.W.3d at 276–77 (whether the trial court erred by dismissing a suit for lack of personal jurisdiction).

The majority suggests that J.A.D. is directly “on point.” Ante, at 709 n. 10. Only one question was presented in that case: “In a single issue, [Father] contends the trial court erred by ordering him to pay [Mother's] attorney's fees because he was the prevailing party at trial.” J.A.D., 2010 WL 2649961, at *2. This court was not called to decide whether the trial court also erred by taxing the attorney's fees as necessaries, or whether a judgment for necessaries is enforceable in the same manner as child support. Any language regarding the manner in which those fees were taxed is accordingly dicta.

As with the A.J.L. decision, which I have already addressed, supra note 6, the majority's reliance on A.J.J. and Stevens is especially misplaced, considering that the Fort Worth and Dallas Courts of Appeals have clearly held that attorney's fees may only be taxed as child support in suits of enforcement. See In re A.S.Z., No. 2–07–259–CV, 2008 WL 3540251, at * 1 (Tex.App.-Fort Worth Aug. 14, 2008, no pet.) (per curiam) (mem. op.) (“In a child support enforcement action, the trial court may assess attorney's fees as child support, but in a suit affecting the parent-child relationship, the trial court may assess attorney's fees as costs, not child support.”); In re AM.W., 313 S.W.3d 887, 893 (Tex.App.-Dallas 2010, no pet.) (“In this case, the attorney's fees were awarded on a motion to modify, not on a motion to enforce delinquent child support obligations. Therefore, there is no basis in the facts or the law to characterize the award of attorney's fees as ‘in the nature of child support.’ ” (internal quotations omitted)).

Six other courts of appeals have examined the issue we consider today, and in no less than nineteen reported and memorandum opinions, they have all concluded that attorney's fees may never be taxed as child support in a non-enforcement modification suit. See In re A.M.W., 313 S.W.3d 887, 893–94 (Tex.App.-Dallas 2010, no pet.); In re K.J.D., 299 S.W.3d 517, 518–19 (Tex.App.-Dallas 2009, no pet.); In re M.A.N.M., 231 S.W.3d 562, 566 (Tex.App.-Dallas 2007, no pet.); Keith v. Keith, 221 S.W.3d 156, 168 (Tex.App.-Houston [1st Dist.] 2006, no pet.); Naguib v. Naguib, 183 S.W.3d 546, 547–48 (Tex.App.-Dallas 2006, no pet.); Finley v. May, 154 S.W.3d 196, 199 (Tex.App.-Austin 2004, no pet.); In re J.C.K., 143 S.W.3d 131, 143 (Tex.App.-Waco 2004, no pet.); Moers, 104 S.W.3d at 611–12;Ex parte Hightower, 877 S.W.2d 17, 21 (Tex.App.-Dallas 1994, orig. proceeding, writ dism'd w.o.j.); In re M.A.F., No. 12–08–00231–CV, 2010 WL 2178541, at *9 (Tex.App.-Tyler May 28, 2010, no pet.) (mem. op.); In re Sanner, No. 01–09–00001–CV, 2010 WL 2163140, at *17 (Tex.App.-Houston [1st Dist.] May 20, 2010, no pet.) (mem. op.); In re Gunnstaks, No. 05–07–01289–CV, 2010 WL 22795, at *2 (Tex.App.-Dallas Jan. 6, 2010, no pet.) (mem. op.); Nixon v. DaSilva, No. 03–07–00166–CV, 2008 WL 3877681, at *2 (Tex.App.-Austin Aug. 22, 2008, no pet.) (mem. op.); In re A.S.Z., No. 2–07–259–CV, 2008 WL 3540251, at *1 (Tex.App.-Fort Worth Aug. 14, 2008, no pet.) (per curiam) (mem. op.); Johnson v. Johnson, No. 03–02–00427–CV, 2005 WL 3440773, at *5 (Tex.App.-Austin Dec. 16, 2005, no pet.) (mem. op.); Kogel v. Robertson, No. 03–04–00246–CV, 2005 WL 3234627, at *10 (Tex.App.-Austin Dec. 2, 2005, no pet.) (mem. op.); In re Watson, No. 2–05–169–CV, 2005 WL 1593481, at *2 (Tex.App.-Fort Worth July 7, 2005, orig. proceeding) (per curiam) (mem.op.); Ross v. Velwood, No. 03–03–00351–CV, 2004 WL 1685510, at *2 (Tex.App.-Austin July 29, 2004, no pet.) (mem. op.); In re V.T., No. 2–03–248–CV, 2004 WL 1353024, at *3 (Tex.App.-Fort Worth June 17, 2004, pet. denied) (mem. op.); see also In re K.A.R., 171 S.W.3d 705, 712 (Tex.App.-Houston [14th Dist.] 2005, no pet.) (Frost, J.) (agreeing, post-Hardin, to modify a judgment in a non-enforcement modification suit by deleting all characterization of attorney's fees as child support upon party's concession of error). The reasoning in this line of cases is sound and consistent with the statutory analysis I have conducted in Sections I and II of this dissent. The majority gives no principled explanation as to why the Fourteenth Court of Appeals should depart from the consensus.

V. The Majority Has Completely Disregarded This Court's Prior Decision in Roosth v. Daggett

In Roosth v. Daggett, decided ten years before Hardin, this court held in very clear terms that the characterization of attorney's fees depended entirely upon the nature of the underlying proceeding. See Roosth v. Daggett, 869 S.W.2d 634, 636–37 (Tex.App.-Houston [14th Dist.] 1994, orig. proceeding). We observed that fees in a suit for child support enforcement may be assessed as “necessities” to the child. Id. at 636. By virtue of this classification, we reasoned that attorney's fees accruing under a suit for enforcement were taxable as child support and enforceable through contempt. Id.

We also observed that there were other types of suits affecting the parent-child relationship, and that such proceedings were “other than necessities for a child's support.” Id. at 636–37. In these types of suits, we stated that attorney's fees may only be considered as “a debt ... not enforceable by contempt.” Id.

The majority's rule effectively eliminates the distinction we articulated in Daggett. After today's ruling, attorney's fees may be enforceable as child support—that is, by contempt—not according to the nature of the underlying proceeding, but whenever “the services performed by the attorney have a relationship to the needs of the child.” Hardin, 161 S.W.3d at 25;ante, at 711 (reaffirming Hardin's necessaries theory of recovery). This is no test at all because the services of an attorney will always and inevitably have some relationship to the needs of the child in a suit affecting the parent-child relationship. If the majority's rule truly represents the law on this issue, and the trial court is always permitted to render judgment for attorney's fees in the nature of child support, then the distinction between Sections 106.002 and 157.167 is essentially meaningless. I am not persuaded that that is the case.

The majority attempts to distinguish Daggett on the basis that it was decided before the enactment of Section 157.167. Ante, at 710–11. But Rule 308a of the Texas Rules of Civil Procedure was in effect at that time, and its terms plainly permitted a judgment for attorney's fees in a suit for child support enforcement. SeeTex.R. Civ. P. 308a. Although Rule 308a did not expressly authorize the judgment to be taxed in the nature of child support, the Texas Supreme Court has held that a parent may be held in contempt under Rule 308a for failing to pay attorney's fees incurred in a suit for child support enforcement. See Helms, 259 S.W.2d at 188–89;accord Hightower, 877 S.W.2d at 21;Ex parte Rogers, 633 S.W.2d 666, 670–71 (Tex.App.-Amarillo 1982, no pet.) (observing the supreme court's interpretation in Helms and further noting the effort by Texas courts “to limit any extension of the ‘duty of support’ exception to those services and costs required for obtaining child support”). The exact language of Section 157.167 may not have been written in 1994, but that omission should hardly affect Daggett 's applicability today.

The majority also claims that Daggett is distinguishable because it “did not address attorney's fees in a non-enforcement modification suit, and the court did not state that attorney's fees were the only fees that could be ‘necessities.’ ” Ante, at 711. It is true that Daggett did not specifically address non-enforcement modification suits, but our opinion very clearly drew a line between enforcement and non-enforcement types of actions. In pertinent part, we stated the following:

While it is true that, in a suit affecting the parent-child relationship, the attorney's fees are often incurred for the benefit of the child, such fees are not automatically “in the nature of child support.” These fees were not incurred for the enforcement of a child support obligation. Rather, the fees arise from a joint divorce proceeding and suit affecting the parent-child relationship, in which a child support obligation was created. Because these fees were specifically designated as costs under § 11.18 [currently Section 106.002], and are part of the divorce proceedings, we find that the fees are a debt
Daggett, 869 S.W.2d at 637.

Inexplicably, the Hardin Court cited Daggett as authority, even though Daggett is directly at odds with Hardin's ultimate conclusion. See Hardin, 161 S.W.3d at 26–27 (holding that a judgment for attorney's fees may be rendered in the nature of child support, regardless of whether the underlying action is one of enforcement or modification). With the exception of Hardin and today's majority, many courts have applied Daggett in cases such as this, construing it to mean that attorney's fees must accrue in a suit for enforcement before they may be taxed as child support. See, e.g., Moers, 104 S.W.3d at 611–12; McCloskey v. McCloskey, No. 14–06–00470–CV, 2009 WL 3335868, at *2 (Tex.App.-Houston [14th Dist.] Apr. 2, 2009, pet. denied) (mem. op.); In re D.C.M., No. 14–06–00844–CV, 2008 WL 4146785, at *10 (Tex.App.-Houston [14th Dist.] Sept. 9, 2008, pet. denied) (mem. op.); Duruji v. Duruji, Nos. 14–05–01885–CV & 14–05–01186–CV, 2007 WL 582282, at *8 (Tex.App.-Houston [14th Dist.] Feb. 27, 2007, no pet.) (mem. op.); Watson, 2005 WL 1593481, at *2;V.T., 2004 WL 1353024, at *3;Ex parte Castillo, No. A14–94–00547–CV, 1994 WL 362252, at *1 (Tex.App.-Houston [14th Dist.] July 14, 1994, orig. proceeding) (mem. op.).

As I read them, Daggett and Hardin cannot be reconciled. The majority may decide to uphold Hardin and expressly overrule McCloskey and D.C.M., but I believe the conflict within our precedent still persists so long as Daggett and Hardin are allowed to stand together.

VI. Conclusion

The majority holds today that attorney's fees may be taxed as child support in a non-enforcement modification proceeding. I would overrule Hardin and hold that the trial court may only render judgment as child support in suits involving the enforcement of a prior order.

Today's en banc decision may purport to resolve a conflict within the jurisprudence of the Fourteenth Court of Appeals, but it perpetuates an unnecessary division with the other courts of appeals that have examined this issue, including the First Court of Appeals, whose decisions are just as authoritative to the attorneys and trial courts within our shared jurisdiction. Because of this split in authority, I urge the legislature or the Texas Supreme Court to provide clarification on this issue at the earliest opportunity.

Tucker v. Thomas

Summary

Opinion

EN BANC OPINION

I. Factual and Procedural Background

II. Issues Presented

III. Standard of Review

IV. Analysis

A. In a non-enforcement modification suit, does a trial court have jurisdiction and authority to order payment of attorney's fees as additional child support?

1. The trial court had jurisdiction and authority to order additional child support in general.

2. The trial court had jurisdiction and authority to order payment of attorney's fees as additional child support.

3. In no statute has the Texas Legislature restricted the trial court's authority to order the payment of attorney's fees as additional child support to the enforcement context.

4. Caution in the trial court's exercise of its contempt power is not relevant to the determination of whether the trial court has the authority to order the children's father to pay attorney's fees as additional child support.

5. Section 107.023 provides an additional basis for the trial court's authorityto order payment of reasonable attorney's fees to the amicus attorney as additional child support.

6. The Daggett opinion does not address the statutes at issue in this appeal.

7. This court's Hardin precedent stands.

B. Is the evidence sufficient to prove that the fees incurred by the children's mother were reasonable fees for legal services benefitting the children?

C. Do the father's other complaints regarding the amicus attorney's fees have merit?

D. Did the father preserve error in the trial court regarding the arguments he asserts in support of his contention that the trial court erred in denying the relief requested in his modification petition?

V. Conclusion

I. The Texas Family Code Contains No Provision Allowing Attorney's Fees to Be Taxed As Child Support in a Non–Enforcement Modification Suit

II. A Statute's Silence Has Significance

III. The Majority's Conclusion Has No Textual Support in Any Provision of the Texas Family Code

IV. The Majority's Decision Is Not Supported by the Case Law

V. The Majority Has Completely Disregarded This Court's Prior Decision in Roosth v. Daggett

VI. Conclusion

Tucker v. Thomas

Tucker v. Thomas

Case Details

Citations

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Tucker v. Thomas

Summary

Opinion

EN BANC OPINION

I. Factual and Procedural Background

II. Issues Presented

III. Standard of Review

IV. Analysis

A. In a non-enforcement modification suit, does a trial court have jurisdiction and authority to order payment of attorney's fees as additional child support?

1. The trial court had jurisdiction and authority to order additional child support in general.

2. The trial court had jurisdiction and authority to order payment of attorney's fees as additional child support.

3. In no statute has the Texas Legislature restricted the trial court's authority to order the payment of attorney's fees as additional child support to the enforcement context.

4. Caution in the trial court's exercise of its contempt power is not relevant to the determination of whether the trial court has the authority to order the children's father to pay attorney's fees as additional child support.

5. Section 107.023 provides an additional basis for the trial court's authorityto order payment of reasonable attorney's fees to the amicus attorney as additional child support.

6. The Daggett opinion does not address the statutes at issue in this appeal.

7. This court's Hardin precedent stands.

B. Is the evidence sufficient to prove that the fees incurred by the children's mother were reasonable fees for legal services benefitting the children?

C. Do the father's other complaints regarding the amicus attorney's fees have merit?

D. Did the father preserve error in the trial court regarding the arguments he asserts in support of his contention that the trial court erred in denying the relief requested in his modification petition?

V. Conclusion

I. The Texas Family Code Contains No Provision Allowing Attorney's Fees to Be Taxed As Child Support in a Non–Enforcement Modification Suit

II. A Statute's Silence Has Significance

III. The Majority's Conclusion Has No Textual Support in Any Provision of the Texas Family Code

IV. The Majority's Decision Is Not Supported by the Case Law

V. The Majority Has Completely Disregarded This Court's Prior Decision in Roosth v. Daggett

VI. Conclusion

Tucker v. Thomas

Tucker v. Thomas

Case Details

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