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.
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, PLLC 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 the children).
In re 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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