IN THE INTEREST OF J.A.D
Court of Appeals of Texas, Fourteenth District, Houston.
July 6, 2010
When you win a case, you expect to be awarded attorney's fees. That's not always or even often very realistic, but that's a topic for a different case. You certainly don't expect to be awarded fees if you lose a case, even though case law provides that the non-prevailing party in a family law case can be awarded attorney's fees. But what happens when you neither win nor lose?
In family law cases, it's not always easy to determine who won and who lost. If your opposing party comes after you with five claims and only prevails on one, who won? You because you defeated 4 claims? Or the other party because at least the won one? In these cases, the analysis looks at whether a party was unsuccessful at trial rather than who was the absolute winner. If a party prevails on at least one claim, either by defeating an opposing parties request or prevailing on one of its own, that party is (pardon the double negative) not unsuccessful. And that is the important distinction.
Can the trial court award attorny's fees to an unsuccessful party?
Yes. The trial court has broad discretion to award attorney's fees. However, if the trial court awards attornehy's fees to a party that was unsuccessful at trial, meaning did not prevail on a single issue, the court must make a finding of good cause to support the award. See In re Marriage of Samford, No. 06-08-00085-CV, 2009 WL 1974387, at *3 (Tex. App.-Texarkana July 10, 2009, no pet.)
The mother counter sued asking the court to increase child support or, in the alternative, leave it at its current level and asking the court to limit the father's weekend possession of the child from first, third, and fifth weekends to just the first weekend of each month, along with other requests.
The court reduced the father's child support obligation to $460 per month and limited the father's overnight possession rights to one weekend per month. The court also ordered the father to pay the mother's attorney's fees in the amount of $16,000. Father appealed saying he had prevailed at trial and should not have to pay his ex-wife's attorney's fees.
Can the Trial Court Award Attorney's Fees to an Only Partially Successful Party?
Yes. The appeals court reviewed the award of attorney's fees "in the nature of child support." The court reasoned that each of the issues raised by the mother and the father were directly related to the welfare and best interests of J.A.D., this making attorney's fees "necessaries" for J.A.D.'s support:
It is well-settled that attorney's fees incurred in establishing the best interests of the child while prosecuting or defending a suit involving the parent-child relationship may be awarded as "necessaries" to the child, even if the fess are incurred by the unsuccessful party. See London v. London, 192 S.W.3d 6, 19 (Tex. App.--Houston [14th Dist.] 2005, pet. denied).All the father was really concerned about was lowering his child support obligation. Because the court did reduce his child support obligation, the father considered himself the "winner." However, the court also granted the mother's request that the father's right to overnight weekend possession be reduced to one weekend per month. Therefore, the appeals court was not willing to declare either one of them the "winner." Even though it's not easy to identify a winner in this case, it is easy to see that the mother was not an unsuccessful party at trial--she got part of what she asked for.
Since the mother was not an unsuccessful party at trial, the trial court acted within the bounds of its discretion in awarding attorney's fees to her and was not required to make a finding of good cause. See In re Marriage of Samford, No. 06-08-00085-CV, 2009 WL 1974387, at *3 (Tex. App.--Texarkana July 10, 2009, no pet.) (mem. op.) (recognizing a finding of good cause is relevant when a non-prevailing party is awarded attorney's fees.)
The lesson here is that the Texas Family Code confers broad discretion on the trial court to award attorney's fees. TEX. FAM. CODE ANN. S 106.002(a); Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex. 2002). If the trial court awards attorney's fees to a non-prevailing party, the trial court must make a finding of good cause. In re Marriage of Samford. However, if the trial court awards attorney's fees to a party that prevailed on at least one issue, no finding is necessary and fees can be awarded as a "necessary" for the support of the child.