I get questions pretty frequently from clients and potential clients about
getting the other party to pay for their attorney’s fees. There
are different standards on awarding interim attorney fees while a case
is pending, depending on what type of case it is.
In this blog article, we will discuss getting awarded interim attorney’s
fees specifically in a
Suit Affecting the Parent-Child Relationship
Generally, the easiest way for a lawyer to get paid for representing a
client in this circumstance is to get paid upfront, by retainer. This
is generally the way
family law lawyers at the Law Office of Bryan Fagan seek to get paid.
Sometimes, a client does not have access to the accounts from which to
pay the lawyer, so our attorneys look to see if it is a case that might
qualify for asking the other party to pay those fees. We have also had
to defend our clients from the reverse argument.
Defending Against Interim Attorney Fees in a SAPCR
We recently represented the mother in a SAPCR. In this case, the biological
dad had sued her to try and establish visitation. He had hired a lawyer
but during the course of the case, had run out of money.
His arguments had a lot to do with how it was unfair that the mother had
money to pay her lawyer and how much it was going to cost him going forward
to pay his attorney. It became quickly apparent that this father was not
familiar with the statute regarding interim attorney’s fees under
the Family Code in a SAPCR.
Any request for interim fees can only be considered under Texas Family
Code Section 105.001.
Under Section 105.001 of the Texas Family Code:
In a suit, the court may make a
temporary order, including the modification of a prior temporary order, for the safety
and welfare of the child, including an order:
- for the temporary conservatorship of the child;
- for the temporary support of the child;
- restraining a party from disturbing the peace of the child or another party;
- prohibiting a person from removing the child beyond a geographical area
identified by the court; or
- for payment of reasonable attorney's fees and expenses.
Of course, if the parties agree to pay attorney’s fees in some manner,
that agreement is enforceable. This in fact did come up prior to the hearing.
The father’s attorney asked me if my client would be willing to
pay for his fees. This request was met with a quick no.
That is not what I am talking about in this blog post. This post has to
do with how a court may impose an attorney fee award by contested hearing.
Many lawyers and judges I see are surprised that “equalization or
fairness” is not a proper standard for awarding attorney’s fees.
The following are some case summaries that help clarify section 105.001(a)(5)
of the family code and when a court may impose interim attorney fees.
Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex. App.— Houston [1st Dist.]
1993, no writ)
Courts have interpreted the “safety and welfare” requirement
of § 105.001(a)(5) to be mandatory, without which an award of fees
may not be made.
In re T.M.F., No. 09-10-00019-CV, 2010 WL 974577, at *1-2 (Tex. App.—Beaumont
March 18, 2010)
or a purpose other than the safety and welfare of the child). To meet this
standard, a party must present evidence concerning the safety and welfare
of a child, not merely present evidence that an award of fees is necessary
to even the financial playing field between the parties.
In re Sartain, No. 01-07- 00920-CV, 2008 WL 920664, at *2 (Tex.App.—
Houston [1st Dist.] April 3, 1993, orig. proceeding).
(error to award fees where only evidence to support request for fees was
disparity in financial abilities of the parties to pay attorneys’
fees and no evidence was presented concerning the safety and welfare of
Christopher Rogers, No. 03-12-00154-CV, 2012 WL 1581374, at *1-4 (Tex.App.—Austin
May 4, 2012).
A party seeking an award of interim attorneys’ fees is required to
present evidence that, at the time of the request, funds are necessary
to protect the safety and welfare of the children.
Outcome of the Example
In the case example I gave earlier, when it came time for us to make our
argument, I asked the father a couple questions to establish that the
“safety and welfare” of the child was not at issue. I then
asked the court to find for my client under the 105.001(a)(5). The court
then took the matter under advisement and told us he would email us his ruling.
Later that day, the court emailed that the court had denied the request
for interim attorney fees because there was no finding that they were
necessary for the “safety and welfare” of the child.
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