In Tucker v. Thomas, the Supreme Court rejected the trial court’s decision to dub the wife’s attorney fee as part of the Husband’s child support obligation.
By Brad LaMorgese, Family Lawyer
In an issue of first impression, the Texas Supreme Court held that a trial court may not award attorney’s fees incurred in a non-enforcement modification suit affecting the parent-child relationship as additional child support or necessaries. Husband and Wife sought modification of their final decree. At trial, the court characterized the attorneys’ fees as necessaries and ordered payment of the amicus attorney’s fees and Wife’s attorney’s fees as additional child support, subject to contempt and jail time if not paid. The Court of Appeals affirmed the court’s ruling.
Tucker v. Thomas: The Will of the Legislature and Attorney Fees
The Texas Supreme Court reviewed whether the Wife’s attorney’s fees could be awarded as additional child support. The Supreme Court reasoned that because the Legislature expressly authorized the assessment of attorney’s fees as additional child support in enforcement suits, but not in modification suits or under Title 5’s general attorney’s fees provision, the Legislature did not intend to grant the trial court authority to characterize Wife’s attorney’s fees as part of Husband’s child support obligation. Further, Section 151.001 of the Family Code does not authorize trial courts in non-enforcement modification suits to characterize attorney’s fees as necessaries, enforceable by contempt. Thus, though the trial court could award fees, it did not have discretion to award them as necessaries or as additional child support in a non-enforcement modification suit. The Supreme Court noted that it expressed no opinion as to whether the amicus attorney’s fees could be awarded as additional child support.
Brad LaMorgese practices family law at McCurley, Orsinger, McCurley, Nelson & Downing in Texas.
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