Tucker v. Thomas

• Decision Date: 13 December 2013
• Docket Number: No. 12–0183.,12–0183.
• Parties: Rosscer Craig TUCKER, II, Petitioner, v. Lizabeth THOMAS, Respondent.
• Court: Texas Supreme Court

419 S.W.3d 292

Rosscer Craig TUCKER, II, Petitioner,

v.Lizabeth THOMAS, Respondent.

No. 12–0183.

Supreme Court of Texas.

Argued Feb. 5, 2013.

Decided Dec. 13, 2013.

Allison Hughes Jones, Allison Jones & Associates. P.C., Alyssa P. Lemkuil, Daniel J. Lemkuil, Janice Lynn Berg, The Law Office of Daniel J. Lemkuil, Houston, TX, for Petitioner Rosscer Craig Tucker, II.

Marshall Davis Brown Jr., Pavlas Brown & York, L.L.P., Houston, TX, Walter P. Mahoney Jr., Law Office of Walter P. Mahoney, Jr., Pasadena, TX, for Respondent Lizabeth Thomas.

Justice GREEN delivered the opinion of the Court.

In this case, we consider whether a trial court has authority to order a parent to pay attorney's fees as additional child support in a non-enforcement modification suit under Title 5 of the Texas Family Code. The court of appeals held that the trial court in this modification suit under Chapter 156 of the Family Code had discretion to characterize an award of attorney's fees as necessaries and, as necessaries, had discretion to award fees as additional child support. 405 S.W.3d 694, 697 (Tex.App.-Houston [14th Dist.] 2011, pet. granted). We hold that, in the absence of express statutory authority, a trial court does not have discretion to characterize attorney's fees awarded in nonenforcement modification suits as necessaries or as additional child support. Accordingly, we reverse the court of appeals' judgment in part and remand the case to the trial court for proceedings consistent with this opinion.

I. Background

Rosscer Craig Tucker, II and Lizabeth Thomas divorced in 2005. In the divorce decree, the trial court appointed Tucker and Thomas as joint managing conservators of their three children, naming Thomas as the parent with the exclusive right to designate the children's primary residence and granting Tucker visitation rights pursuant to a standard possession order. The trial court also ordered Tucker to pay child support. Three years later, Tucker sought modification of the decree, requesting that the trial court name him as the parent with the exclusive right to designate the children's primary residence. Thomas filed a countersuit, requesting that the trial court modify the decree by naming her as sole managing conservator of the children, modify the possession order, and increase Tucker's child support obligation. The trial court appointed an amicus attorney to assist the court in protecting the best interests of the children.

Following a bench trial, the trial court denied Tucker's requests for modification and granted part of the relief requested by Thomas by increasing Tucker's monthly child support obligation and reducing Tucker's periods of possession. Additionally, the trial court found the amicus attorney's fees and Thomas's attorney's fees to be necessaries expended for the children's benefit. The trial court ordered Tucker and Thomas to each pay half of the amicus attorney's fees as additional child support. The trial court further ordered Tucker to pay Thomas's attorney's fees as additional child support, plus postjudgment interest. Tucker filed a motion for new trial, challenging the trial court's order requiring him to pay attorney's fees to both the amicus attorney and Thomas as additional child support rather than assessing the attorney's fees as costs. The trial court denied the motion.

Tucker appealed on grounds relating to attorney's fees and the denial of his requests for modification. The court of appeals, hearing the case en banc, considered only the merits of the two attorney's fees issues because Tucker waived his complaint on the modification requests.¹405 S.W.3d at 711–14. The court of appeals held that the Family Code gives trial courts authority to order a parent to pay attorney's fees for legal services benefitting the children—whether provided by the amicus attorney or the other parent—as additional child support in non-enforcement modification suits. Id. at 712. While acknowledging that other Texas courts of appeals have held that the Family Code does not expressly grant trial courts authority to assess attorney's fees as additional child support when parties seek only modification of an order under Title 5 of the Family Code, the court reasoned that a parent's statutory duty to provide his or her children with necessaries evidences the Legislature's intent to grant trial courts broad discretion to assess attorney's fees as child support. Id. at 703–05. The court of appeals further held that there was insufficient evidence to support the trial court's finding that the attorney's fees awarded to Thomas were reasonable, reversing on that issue and remanding the case to the trial court for a determination of reasonable attorney's fees. Id. at 714.

In this Court, Tucker has pursued only the issue of whether Thomas's attorney's fees could be awarded as additional child support, and we granted his petition to resolve the disagreement among the courts of appeals. ² 56 Tex. Sup.Ct. J. 100–01 (Nov. 16, 2012). Compare405 S.W.3d at 714 (holding that attorney's fees incurred in a non-enforcement modification suit can be awarded as additional child support under the Family Code), with, e.g., In re Moers, 104 S.W.3d 609, 612 (Tex.App.-Houston [1st Dist.] 2003, no pet.) (holding that attorney's fees and costs may not be awarded as child support when they are incurred in a suit to modify the parent-child relationship that does not involve the enforcement of a child support obligation).

II. Analysis

In this issue of first impression, we must determine whether the Legislature has authorized a trial court to award attorney's fees incurred by a party in a non-enforcement modification suit affecting the parent-child relationship (SAPCR) as additional child support.³ Because this is an issue of law involving statutory construction, we review it de novo. See City of Rockwall v. Hughes, 246 S.W.3d 621, 625 (Tex.2008). Our primary objective when construing statutes is to give effect to the Legislature's intent. Iliff v. Iliff, 339 S.W.3d 74, 79 (Tex.2011). We must ascertain this intent by looking to the entire act. See Hunter v. Fort Worth Capital Corp., 620 S.W.2d 547, 549 (Tex.1981).

Texas has long adhered to the American Rule with respect to awards of attorney's fees, which prohibits the recovery of attorney's fees from an opposing party in legal proceedings unless authorized by statute or contract. See, e.g., 1/2 Price Checks Cashed v. United Auto. Ins. Co., 344 S.W.3d 378, 382 (Tex.2011). Title 5 of the Family Code provides a comprehensive scheme authorizing a trial court to award attorney's fees pursuant to both a general statute and specific statutes. See, e.g.,Tex. Fam.Code § 106.002. The Legislature also provides specific mechanisms for the enforcement attorney's fees awards in SAPCRs. See, e.g., id. As discussed below, neither the Legislature nor our case law related to the common law doctrine of necessaries has recognized trial court authority to characterize attorney's fees in non-enforcement modification suits as necessaries or as additional child support. We hold that, in the absence of express statutory authority, a trial court may not award attorney's fees recoverable by a party in a non-enforcement modification suit as necessaries or additional child support.⁴

A. Split Among the Courts of Appeals

The majority of the courts of appeals that have addressed this issue have held that a trial court may not characterize attorney's fees incurred by a party in a non-enforcement modification suit as additional child support. See, e.g., In re Moers, 104 S.W.3d at 612;see also405 S.W.3d at 704 n. 6 (listing five courts of appeals that have followed In re Moers ).⁵Those courts of appeals reason that the Legislature has distinguished between attorney's fees awarded in modification suits and attorney's fees awarded in enforcement suits due to the potentially serious consequences that stem from characterizing attorney's fees as child support. See, e.g., Finley v. May, 154 S.W.3d 196, 199 (Tex.App.-Austin 2004, no pet.). Specifically, section 157.166 of the Family Code authorizes a trial court to enforce a child support obligation through use of its contempt powers, which includes the possibility of confinement. SeeTex. Fam.Code § 157.166.

The court of appeals in this case reached the opposite conclusion, holding that the attorney's fees incurred by Thomas in this non-enforcement modification suit were necessaries, and, as necessaries, the attorney's fees could be awarded as additional child support. 405 S.W.3d at 714. The court of appeals relied on the absence of any prohibition in the Family Code related to the characterization of attorney's fees to reach its conclusion that a trial court has inherent authority to order attorney's fees as additional child support in a non-enforcement modification suit. Id. at 704. Only one other court of appeals has upheld a trial court order awarding attorney's fees as child support in a non-enforcement modification suit. See Daniels v. Allen, 811 S.W.2d 278, 280 (Tex.App.–Tyler 1991, no writ). More recently, however, that same court held that a trial court may not award attorney's fees as child support in a non-enforcement modification suit. See In re M.A.F., No. 12–08–00231–CV, 2010 WL 2178541, at *8–10, 2010 Tex.App. LEXIS 4097, at *22–24 (Tex.App.-Tyler May 28, 2010, no pet.) (mem.op.).

B. Attorney's Fees in Suits Affecting the Parent–Child Relationship

Numerous sections in the Family Code authorize a trial court to award attorney's fees in a SAPCR. Section 106.002, applicable to all SAPCRs, invests a trial court with general discretion to render judgment for reasonable attorney's fees to be paid directly to a party's attorney. Tex. Fam.Code § 106.002(a); see also Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex.2002) (“An attorney's fees award in a suit affecting the parent-child relationship is discretionary with the trial court.”). In addition, the Legislature has...