In re K.M.B.

• Decision Date: 07 October 2004
• Docket Number: No. 14-03-01090-CV.,14-03-01090-CV.
• Citation: 148 S.W.3d 618
• Parties: In the Interest of K.M.B. and D.R.B.
• Court: Texas Court of Appeals

148 S.W.3d 618

In the Interest of K.M.B. and D.R.B.

No. 14-03-01090-CV.

Court of Appeals of Texas, Houston (14th Dist.).

October 7, 2004.

Dorothy Denise Goebel, Tomball, Ana Maria Zamarripa, The Woodlands, for appellants.

John B. Worley, Rhonda Amkraut Pressley, Austin, for appellees.

Panel consists of Chief Justice HEDGES and Justices FROST and GUZMAN.

MAJORITY OPINION

KEM THOMPSON FROST, Justice.

This is an appeal from an order reducing a child-support obligation. As a threshold matter, we must decide whether this court has jurisdiction. After reviewing the record, we conclude that the two judgments signed by the trial court are not final and appealable because they do not dispose of the attorney's fees issues. Accordingly, we dismiss this appeal for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant Aaron Braziel and appellee Stephanie Braziel finalized their divorce on November 30, 2000. The final divorce decree gave Aaron the right to establish the primary residence for the couple's two children. Stephanie was ordered to pay $519.75 a month in child support and to reimburse Aaron for the cost of providing health insurance for the children through his employer's insurance plan. The sum of $519.75 a month was based on Stephanie's income of $35,000 a year.

In November of 2001, Stephanie voluntarily left her job with Lone Star Tower Co. She testified that in February of 2002, she began to work as a dancer, making $80 to $200 a day and typically working no more than three days a week. On February 13, 2003, the office of the Attorney General filed a "Motion for Enforcement and Modification of Child Support Order," alleging Stephanie was $3,356.26 in arrears on her child support obligations as of January 27, 2003. The Attorney General's Office asked the court to (1) hold Stephanie in contempt and punish her by fine or jail time, (2) order Stephanie committed to the county jail until she paid the child-support arrearage, reasonable attorney's fees, and court costs, (3) confirm and enter judgment for the child-support arrearage and accrued interest, (4) order payment and income withholding to liquidate the judgment, (5) modify the amount of the payments required by the child-support order and adjust the provisions regarding the children's health insurance, (6) withhold support from disposable earnings, and (7) award reasonable attorney's fees and all other costs of the proceeding.

A hearing on the Attorney General's motion was held before a master on May 22, 2003. The master signed a proposed order finding that Stephanie was $4,374.47 in arrears as of April 30, 2003, and recommended that she pay that sum in installments. The master also recommended reducing the child-support payments to $224.60 a month because the master found such a reduction warranted based on changed circumstances since the entry of the November 2000 divorce decree. On May 23, 2003, Aaron filed a notice of appeal from the master's hearing, objecting to most of the master's findings. On May 28, 2003, the trial court approved and adopted the master's report "as the order of the [c]ourt" (the "May Order").

On August 12, 2003, the trial court held a hearing in response to Aaron's appeal from the master's hearing. The trial court entered an order on that date (the "August Order") in which the trial court found, among other things, that (1) Stephanie was $2,625.43 in arrears on child support obligations as of August 12, 2003; (2) Stephanie had intentionally under-employed herself; and (3) a modification of the child support payments to $335.99 a month was warranted. On September 11, 2003, Aaron filed a notice of appeal contesting the portion of the August Order that reduced Stephanie's monthly child-support obligation.

II. ANALYSIS AND DISCUSSION

To determine whether this court has jurisdiction to consider the matters presented on appeal, we must determine if the order from which this appeal is taken is a final appealable order.

An order that disposes of all claims and parties then before the court is a final appealable order. See Lehmann v. Har-Con Corp., 39 S.W.3d 191, 192-93 (Tex.2001); State ex rel. Latty v. Owens, 907 S.W.2d 484, 485 (Tex.1995) (per curiam).¹ In this case, the trial court's order signed on May 28, 2003, adopted the master's report "as the order of the [c]ourt." In the May Order, the trial court ordered Stephanie committed to the county jail until she paid "$2,000.00 in child support arrearages; [no] attorney's fees; and [no] court costs," thus ruling on the Attorney General's request that the trial court order Stephanie committed to the county jail until she paid the child-support arrearage, reasonable attorney's fees, and court costs. Although not requested by the Attorney General, the trial court suspended this commitment and placed Stephanie on community supervision for sixty months. In listing the conditions of Stephanie's community supervision in the May Order, the master struck from the form order a condition that read "pay attorney fees as ordered herein."² No provision of the May Order states that the court grants or denies the Attorney General's claim for attorney's fees. Although the May Order does not require Stephanie, as a condition of community supervision, to "pay attorney fees as ordered herein," this is not surprising because the May Order does not order Stephanie to pay attorney's fees. However, the trial court's failure to order Stephanie to pay attorney's fees does not constitute a denial of the Attorney General's claim in this regard. The trial court may have intended to address the issue of attorney's fees later and then amend the conditions of community supervision accordingly, or the trial court may have intended to address this issue later, but not to make the payment of attorney's fees a condition of community supervision so as to make it easier for Stephanie to satisfy these conditions. In any event, in the absence of language in the May Order ruling on the pending claim for attorney's fees, we conclude that the May Order does not dispose of all issues and is not a final and appealable judgment. See McNally v. Guevara, 52 S.W.3d 195, 196 (Tex.2001); Lehmann, 39 S.W.3d at 192-93.

The dissent asserts that the May Order does rule on the attorney's fees claim based on the section of the May Order entitled, "Suspended Commitment," in which the master struck the requirement to "pay attorney fees as ordered herein" as a condition of Stephanie's community supervision. However, this action by the master indicates only that payment of attorney's fees was not a condition of community supervision, not that the master considered the Attorney General's claim for attorney's fees in the enforcement and modification proceeding and denied it. See Tex. Fam.Code Ann. § 157.211 (Vernon 2002) (stating that terms and conditions of community supervision may include the requirement that respondent pay attorney's fees as ordered by court); id. § 231.211 (stating that trial court may, with certain exceptions, assess attorney's fees against nonprevailing party in proceeding brought by Attorney General as Title IV-D agency). Because the May Order did not dispose of the Attorney General's claim for attorney's fees, this order was not a final and appealable order.

Although this court has held that a trial court's failure to award attorney's fees in a suit affecting the parent-child relationship does not affect the finality of an order, the statute upon which the court was relying has since been changed. See In re J.R., 123 S.W.3d 669, 671-72 (Tex.App.-Houston [14th Dist.] 2003, no pet.). In In re J.R., this court based its decision on the language in the former version of Texas Family Code section 106.002, which stated that attorney's fees in such cases are awarded as costs. See id.; Tex. Fam.Code Ann. § 106.002(a) (Vernon 2002). The statute no longer states that the court may order attorney's fees as costs. See Tex. Fam.Code Ann. § 106.002(a) (Vernon Supp.2004). The phrase "as costs" has been removed, and the statute now reads: "In a suit under this title, the court may render judgment for reasonable attorney's fees and expenses...." Id. Because the new statutory language applies to this case,³ this court's prior decision in In re J.R. does not apply.

The trial court's August Order presents a different situation. The trial court held a hearing in response to Aaron's appeal from the master's ruling, despite the fact that the trial court already had adopted the recommendations in the master's report on May 28, 2003. At the hearing, Aaron's attorney testified as to his attorney's fees and requested the trial court to award Aaron $1,500 in attorney's fees. Following the testimony, the attorneys and the trial court engaged in a discussion as to whether attorney's fees were allowed under the Texas Family Code in the circumstances of this case. The trial court indicated that it would take the matter under advisement; however, at the conclusion of the hearing, the trial court stated: "And the [c]ourt having taken a moment to read the statute is going to order that there is [sic] no attorney's fees to be paid in this matter and otherwise will approve the judgement [sic] that's been presented today." The written order from the same day does not include this statement from the trial court; rather, in the written order, the trial court expressly reserved ruling on the issue of attorney's fees requested by Aaron and his attorney.⁴ The docket sheet indicates that sixteen days later, on August 28 2003, the trial court ordered Stephanie to pay $1,500 in attorney's fees.⁵ The trial judge's signature appears immediately below this entry on the docket sheet.

First, we must address the inconsistency between the trial court's oral pronouncement at the hearing and its written order stating that the court reserved ruling on the issue of attorney's fees. A written judgment or order controls over a trial court's...