On Appeal from the 312th District Court Harris County
The father of three children, the appellant, filed suit seeking modification of a final order rendered in a suit affecting the parent-child relationship, and the appellee, the mother, counter-sued, also seeking modification of that order. The trial court denied the relief requested by the appellant and granted in part the relief requested by the appellee, increasing the appellant’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 appellant to pay these fees as additional child support. Upon en banc hearing, the appellate court held that 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 might order such fees paid to the other parent or to a third party, such as an amicus attorney. The reasons stated in In re Moers (2003), 104 S.W.3d 609 and the cases following it for reaching the opposite conclusion conflicted with the plain meaning of the applicable statutes. Thus, the court upheld the conclusion reached in Hardin v. Hardin. See 161 S.W.3d 14, (Tex. App.—Houston [14th Dist.] 2004) and In re J.A.D., No. 14-08-00689-CV, 2010 WL 2649961. To the extent other court opinions conflicted with the analysis in the instant opinion, the court disapproved them. The evidence supported a finding that the fees incurred by the appellee were for legal services benefitting the children. But the evidence was insufficient to support the trial court‘s finding that the attorney‘s fees that the trial court ordered the appellant to pay were reasonable. Accordingly, the trial court abused its discretion in ordering the appellant to pay these fees, and to this extent, the court reversed the trial court‘s order and remanded for a determination of the amount of reasonable attorney‘s fees incurred by the appellee for legal services benefitting the children. Because the appellant had failed to preserve error or inadequately briefed the remaining complaints in his appellate brief, the court overruled those challenges. The remainder of the trial court‘s order was affirmed.