Attorney’s Fee Award Not Required on Modification

According to section 106.002 of the Texas Family Code, in a suit affecting the parent-child relationship, “the court may render judgment for reasonable attorney’s fees and expenses.” The First Court of Appeals affirmed a trial court’s decision not to award any attorney’s fees in Auzston-Rochester v. Auzston, No. 01-12-01059-CV (Tex. App. – Houston [1st Dist.] Mar. 6, 2014) (mem. op.), even though the former wife succeeded in obtaining an increase in child support.

Award of Attorney Fees Discretionary

The former wife argued that section 106.002 requires an award of attorney’s fees. The First Court disagreed, stating that “the case law is clear that an award of attorney’s fees in a suit affecting the parent-child relationship remains within the discretion of the trial court,” citing Watts v. Oliver, 396 S.W.3d 124, 132 (Tex. App. – Houston [14th Dist.] 2013, no pet.); In re B.B.R., 188 S.W.3d 341, 344 (Tex. App. – Fort Worth 2006, no pet.); Tull v. Tull, 159 S.W.3d 758, 760 (Tex. App. – Dallas 2005, no pet.); In re A.C.J., 146 S.W.3d 323, 327 (Tex. App. – Beaumont, 2004, no pet.); and Parr v. Parr, No. 01-07-00750-CV (Tex. App. – Houston [1st Dist.] May 21, 2009, no pet.) (mem. op.).

Reasons for Denying Attorney’s Fees

In affirming the trial court’s decision not to award attorney’s fees, the First Court relied on several factors:

  • The former husband readily provided the information necessary to calculate child support.
  • The former wife’s attorney initially demanded a higher amount of child support because he misread the information sheet the former husband provided.
  • The former wife’s attorney billed the former wife for child support calculations based on his misreading of the former husband’s information sheet.
  • The former wife’s attorney frequently wrote letters to the former husband’s attorney.
  • The former wife’s attorney’s fees were $11,160, while the former husband’s attorney’s fees equalled $4,257.76.
  • The former husband’s attorney testified that she had never charged this much on a child support modification suit, but she had run up these fees because she had to respond to the other attorney’s letters and correct his miscalculations of child support.
  • The former husband never disputed that child support should increase “and was forthcoming and cooperative in producing all financial records requested of him.”

The lesson here seems to be, “read what is produced carefully.”

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