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In re Payne

Court of Appeals of Texas, Third District, Austin

April 5, 2018

In re Tamika Payne

          ORIGINAL PROCEEDING FROM BELL COUNTY

          Before Chief Justice Rose, Justices Goodwin and Field

          MEMORANDUM OPINION

          SCOTT K. FIELD, JUSTICE.

         Relator Tamika Payne has filed a petition for writ of mandamus seeking relief from a temporary order requiring her to pay interim attorney's fees to the attorney for real party in interest Richard Payne. For the following reasons, we will conditionally grant relief.

         BACKGROUND

         Richard Payne and Tamika Payne, the parents of two minor children, separated in 2006 and were divorced in 2007.[1] In the original order in the suit affecting the parent-child relationship (SAPCR), Tamika was appointed the joint-managing conservator with the exclusive right to determine the primary residence of the children. The order was subsequently modified on December 14, 2010, to provide, in accordance with the parties' agreement, that the children would reside with Richard in Pennsylvania while Tamika worked overseas.

         In 2016, Tamika returned to the United States when her overseas contract ended. On April 5, 2017, Richard filed a petition to modify the SAPCR order, seeking to be designated the joint-managing conservator with the exclusive right to determine the primary residence of the children. The trial court signed temporary orders appointing Richard as the temporary managing conservator with the exclusive right to determine the primary residence of the children and limiting Tamika to supervised visits. Richard subsequently filed a motion to modify the temporary orders, requesting interim attorney's fees. See Tex. Fam. Code § 105.001(a)(5).

         At the hearing on Richard's request for attorney's fees, Richard's attorney asserted that Tamika had caused Richard to incur excessive fees in the course of the litigation, in part by requesting a jury trial. The attorney estimated that $32, 000 in additional attorney's fees and expenses would be incurred should the case continue through a jury trial, as anticipated. According to the attorney, without the award of attorney's fees, Richard could not afford the additional fees and "[would not be] able to go forward." Other than testimony from Richard's attorney regarding the reasonableness of the amount of the requested fees, neither party introduced testimony or any other evidence at the hearing.

         The trial court later signed an order requiring Tamika to pay interim attorney's fees to Richard's counsel in the amount of $25, 000.

         MANDAMUS

         This Court may grant mandamus relief only to correct a "clear abuse of discretion" by the trial court when there is no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). A clear abuse of discretion occurs when the trial court reaches a decision "so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Id. at 839. A trial court has no "discretion" in determining what the law is or applying the law to the facts of the case. Id. at 840. Thus, a clear failure by the trial court to analyze or apply the law correctly constitutes an abuse of discretion. Id. In addition, both legal and factual sufficiency challenges to the evidence are relevant factors in assessing whether the trial court abused its discretion. In re Rogers, 370 S.W.3d 443, 445 (Tex. App.-Austin 2012, orig. proceeding); see In re Wiese, No. 03-15-00062-CV, 2015 WL 4907030, at *2 (Tex. App.-Austin Aug. 12, 2015, orig. proceeding) (mem. op.). In reviewing the evidence in the context of an abuse-of-discretion standard, we engage in a two-pronged inquiry: (1)whether the trial court had sufficient information on which to exercise its discretion; and if so, (2) whether the trial court erred in the application of discretion; that is, whether based on the evidence, the trial court made a decision that was neither arbitrary nor unreasonable. In re Rogers, 370 S.W.3d at 445.

         When a trial court abuses its discretion in the issuance of temporary orders in a suit affecting the parent-child relationship, mandamus relief is proper because there are no adequate appellate remedies. See Tex. Fam. Code § 105.001(e) ("Temporary orders rendered under this section are not subject to interlocutory appeal."); In re Sartain, No. 01-07-00920-CV, 2008 WL 920664, at *2 (Tex. App.-Houston [1st Dist.] Apr. 3, 2008, no pet.) (mem. op.) ("Mandamus is a proper remedy to attack the issuance of a temporary order in a suit affecting the parent-child relationship, because such orders are not subject to interlocutory appeal.").

         DISCUSSION

         Section 105.001(a)(5) of the Texas Family Code provides that in a suit affecting the parent-child relationship, the trial court may make a temporary order "for the safety and welfare of the child, including an order . . . for payment of reasonable attorney's fees and expenses." Tex. Fam. Code § 105.001(a)(5). A party seeking a temporary order for interim attorney's fees under section 105.001(a)(5) has the burden of showing that payment of the requested attorney's fees is necessary for the safety and welfare of the children. See In re Rogers, 370 S.W.3d at 446; In re Sartain, 2008 WL 920664, at *2 n.2 (noting that party requesting interim attorney's fees had burden of proof). Section 105.001(a)(5) does not authorize a trial court to make a temporary order for the payment of attorney's fees "for a purpose other than the safety and welfare of the child." See Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex. App.-Houston [1st Dist.] 1993, orig. proceeding). Consequently, a trial court may not order payment of attorney's fees for the purpose of "level[ing] the playing field" in the SAPCR litigation. See In re Wiese, 2015 WL 4907030, at *3 ...


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