D.R. v. J.A.R.

• Decision Date: 28 February 1995
• Docket Number: No. 2-94-023-CV,2-94-023-CV
• Citation: 894 S.W.2d 91
• Parties: D.R., Appellant, v. J.A.R., Appellee.
• Court: Texas Court of Appeals

Page 91

894 S.W.2d 91

D.R., Appellant, v. J.A.R., Appellee.

No. 2-94-023-CV.

Court of Appeals of Texas,

Fort Worth.

Feb. 28, 1995.

Rehearing Overruled March 30, 1995.

Graves, Dougherty, Hearon & Moody, and Robert J. Hearon, Jr., Selden Anne Wallace, Michael J. Whellan, Austin, for appellant.

McClure and McClure and Ann C. McClure, El Paso, Gary W. Nickelson, Fort Worth, for appellee.

Before LATTIMORE and DAY, JJ.

OPINION ON REHEARING

DAY, Justice.

We grant appellant's motion for rehearing and hereby withdraw our opinion and judgment of December 7, 1994, and substitute the following.

Wife (D.R.) appeals a trial court judgment taxing attorney fees against her for filing a frivolous and harassing suit to modify a joint conservatorship. TEX.FAM.CODE ANN. § 14.082 (Vernon Supp.1995). We modify the trial court's judgment regarding post-judgment interest on appellate attorney fees. We affirm the judgment as modified.

FACTS

The parties divorced on August 10, 1990. The divorce decree appointed both parties as joint managing conservators with Wife as the primary conservator of their two children. Additionally, the decree ordered supervised visitation for Husband (J.A.R.), child support payments of $1,050 per month, and unobserved urine tests of Husband when requested by Wife.

In December 1990, Wife filed a motion to modify the decree to reduce the Husband's visitation periods. She, however, nonsuited her motion.

In April 1991, Husband filed a motion to modify the decree seeking standard visitation pursuant to the visitation guidelines codified in the Texas Family Code. In response, Wife sought to be appointed sole managing conservator with a reduction in Husband's visitation rights. The trial court entered a modification order in February 1992 allowing Husband standard visitation, but the court retained the joint managing conservatorship and the provision for substance testing.

Afterwards, Wife's psychologist noted that she was in a state of shock. In fact, the notes and testimony of her psychologist state among other things:

1. Wife had great difficulty in dealing with the separation from her children;

2. Wife felt angry when the children went for their first overnight visit with Husband;

3. Wife experienced acute grief as a reaction to the court's decision granting Husband standard visitation;

4. Wife saw psychologist approximately twice per week following the court's ruling in order to deal with these issues;

5. On March 24, 1992, Wife met with another attorney who told her that she had very limited options;

6. On April 21, 1992, Wife met with two different attorneys regarding Husband's visitation rights between then and the end of summer;

7. The notes of May 12, 1992 reflect Wife was in tremendous fear about Husband's motives and behavior regarding her and the children and she expressed no confidence in the legal system;

8. The notes of May 14, 1992 reflect that her attorneys were recommending that she provide a summary regarding the children's treatment, and that she was afraid of losing more control over her children;

9. The notes of May 18, 1992 reflect Wife was very angry and upset about the summer visitation Husband planned with the children in Maine;

10. By May 29, 1992, Wife had retained new counsel.

Meanwhile, Wife testified she noticed changes in her children's behavior and willingness to visit their father, including deteriorations in the girl's school performance and sociability. She consulted her psychologist about the children's relationship with their father and the possibility of Husband lacking the sensitivity and knowledge necessary to raise a girl. Her psychologist recommended the children see a specialist for suspected or known sexual abuse. In June 1992, the children began seeing Dr. Baker.

From June 23 until July 8, 1992, Husband and the two children went to Maine on a vacation. Several days before the children were scheduled to return to Fort Worth, Wife traveled to Jackman, Maine to exercise her visitation rights. She picked the children up around 6:00 p.m. on July 3 and drove to Boston that night, arriving late and after the children were asleep. On July 5, they made the return trip from Boston to Jackman, Maine. Husband and the children returned to Fort Worth on July 8, 1992.

On July 31, 1992, several days before Husband's second extended summer visitation period, Wife, alleging sexual abuse by Husband, filed a motion to modify the visitation, an application for a temporary restraining order, and a request for a temporary injunction. The trial court granted the temporary order outlining a supervised visitation schedule for Husband on September 16, 1992.

In October 1992, Wife ceased her therapy sessions with her psychologist because her counsel felt that ongoing therapy would defeat the presentation of Wife as reliable. Wife, however, in November of 1992 substituted her then counsel with present counsel. As the January trial date approached, Wife filed numerous motions including: (1) a motion to bifurcate the trial; (2) a renewed motion for drug testing; (3) a motion to suspend visitation; and (4) a motion for psychological examination. The trial was continued until April.

On April 21, 1993, Wife filed a motion to terminate the parent-child relationship between Husband and the children. Husband responded by filing a motion seeking, among other things, appointment as sole managing conservator or alternatively, appointment as the primary joint managing conservator.

The trial began on May 24, 1993, but was halted on June 4, 1993 after Dr. Baker, one of Wife's expert witnesses, testified that one inappropriate event might have occurred in the past between Husband and the children, but he could not determine a pattern or suggest that any sexual abuse ever occurred. Furthermore, he testified that the one possible event between Husband and the children was not the ongoing problem for the children. After this testimony and the testimony of other experts, Wife abandoned her modification claim and both parties reached a settlement on all issues except for court costs, expert fees, and attorney fees. On July 19, 1993, the trial court signed an agreed order proposed by the parties, and an order taxing Wife with attorney fees. After numerous motions by Wife, the trial court entered an amended judgment that included a provision that Wife pay all costs including Husband's attorney fees. The trial court taxed Wife with $146,000 in attorney fees that included an unconditional award of $85,000 in appellate attorney fees with a credit of $60,000 and $25,000 if Wife did not appeal to the court of appeals and Texas Supreme Court respectively. Furthermore, the trial court rendered findings of fact and conclusions of law which stated among other things that the motion to modify was frivolous and filed merely to harass Husband, and the motion to terminate lacked any basis in fact or law and was filed for the purpose of harassment and leverage. Wife appeals the trial court's judgment taxing attorney fees against her.

STANDARD OF REVIEW FOR AWARD OF ATTORNEY FEES

In points of error one and two, Wife challenges the trial court's taxing of attorney fees against her because: (1) no evidence or insufficient evidence exists to support such an award, and (2) the trial court abused its discretion by granting the award. The trial court awarded attorney fees under section 14.082 of the Texas Family Code. Section 14.082 states, "If the court finds that a motion to modify under Section 14.081 ¹ of this code is filed frivolously OR is designed to harass a party, the court shall tax attorney's fees as costs against the offending party as provided by Section 11.18 of this code." TEX.FAM.CODE ANN. § 14.082 (Vernon Supp.1995) (emphasis added).

Before we can examine the appropriateness of the trial judge's award of attorney fees, however, we must first determine whether the word "shall" in section 14.082 makes the statute mandatory or directory.

There is no absolute test by which it may be determined whether a statutory provision is mandatory or directory. The fundamental rule is to ascertain and give effect to the legislative intent. Although the word "shall" is generally construed to be mandatory, it may be and frequently is held to be merely directory. In determining whether the Legislature intended the particular provision to be mandatory or merely directory, consideration should be given to the entire act, its nature and object, and the consequences that would follow from each construction.

Conners v. Conners, 796 S.W.2d 233, 239 (Tex.App.--Fort Worth 1990, writ denied) (citing Chisholm v. Bewley Mills, 155 Tex. 400, 287 S.W.2d 943, 945 (1956)). See also TEX.GOV'T CODE ANN. § 312.002 (Vernon 1988). Based on the entire act, its nature and object, we hold the word "shall" in section 14.082 merely directs the trial court to award the attorney fees as costs under section 11.18. ² It, however, does not make the awarding of attorney fees mandatory. Therefore, we hold the proper standard of appellate review for section 14.082 is an abuse of discretion standard because the word "shall" in section 14.082 is directory. See Warchol v. Warchol, 853 S.W.2d 165, 169 (Tex.App.--Beaumont 1993, no writ) (The proper standard of review for section 14.082 is an abuse of discretion standard).

ABUSE OF DISCRETION

Under an abuse of discretion standard, legal and factual insufficiency are not independent grounds of error, but are rather relevant factors in assessing whether the trial court abused its discretion. See In The Interest of Pecht, 874 S.W.2d 797, 800 (Tex.App.--Texarkana 1994, no writ); Mai v. Mai, 853 S.W.2d 615, 618 (Tex.App.--Houston [1st Dist.] 1993, no writ). Because Wife argues legal and factual insufficiency as a ground for reversal of the trial court's discretionary award of attorney fees in point of error one, we overrule point of error one.

Wife, however, does argue abuse of discretion in...