in Re David O'Connor

Court of Appeals of Texas·Decided August 31, 2021·No. 03-21-00159-CV·Published

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00159-CV

In re David O’Connor

ORIGINAL PROCEEDING FROM TRAVIS COUNTY

MEMORANDUM OPINION

Relator David O’Connor has filed a petition for writ of mandamus, seeking relief

from a temporary order requiring him to pay $4,205 in attorney’s fees to the attorney for real

party in interest Trish Ho. Having reviewed the petition, the response, and the record provided,

we will conditionally grant relief. See Tex. R. App. P. 52.8(c).

BACKGROUND

This original proceeding arises out of a suit affecting the parent-child relationship

(SAPCR). O’Connor and Ho are the parents of L.T.O., who was born in 2015. After O’Connor

filed a petition to modify the original SAPCR order, the parties filed competing motions for

temporary orders. In addition, Ho filed a motion for interim attorney’s fees in the amount of

$50,000. See Tex. Fam. Code § 105.001(a)(5).

The trial court held a hearing on the parties’ motions for temporary orders and, at

the conclusion of the hearing, announced that it was denying Ho’s request for interim attorney’s

fees. The trial court went on, however, to tell Ho’s attorney that he could “put forward a motion

for fees [for the hearing]” and that they could then “have a further conversation about that.” The next week, Ho’s attorney filed an affidavit as to reasonable and necessary attorney’s fees

incurred by Ho in connection with the temporary-orders hearing. The attorney stated in his

affidavit that Ho was entitled to “recover the reasonable attorney’s fees requested herein

pursuant to the Texas Family Code and the Texas Rules of Civil Procedure.”

At the hearing on Ho’s request for attorney’s fees, O’Connor’s attorney objected

to Ho’s request and argued that she had failed to show that the fees were necessary for “the

safety and welfare of the child,” a statutory requirement for an award of interim attorney’s fees

under Section 105.001 of the Family Code. See id. During his testimony on attorneys’ fees,

Ho’s attorney told the trial court that Ho was not seeking interim fees under Section 105.001 and

that her request for attorney’s fees was authorized as a sanction under Rule 13 of the Texas Rules

of Civil Procedure and Chapter 10 of the Texas Civil Practice and Remedies Code.

The trial court later signed temporary orders, which included a finding that “good

cause exists to award [Ho] reasonable and necessary attorney’s fees incurred in connection with

this motion against [O’Connor]” and ordered O’Connor to pay $4,205 to Ho’s attorney within

thirty days.

MANDAMUS STANDARD

This Court may grant mandamus relief only to correct a “clear abuse of discretion

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’s decision is so arbitrary and

capricious that it amounts to clear error. Id. 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 the law correctly constitutes an abuse of discretion. Id. When a trial

2 court abuses its discretion in the issuance of temporary orders in a SAPCR, 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

Rogers, 370 S.W.3d 443, 445 (Tex. App.—Austin 2012, orig. proceeding).

DISCUSSION

In his petition for mandamus relief, O’Connor asserts that the trial court abused its

discretion in awarding attorney’s fees because “there was no evidence that the fees were

necessary to protect the safety and welfare of the child.” Section 105.001(a)(5) of the Family

Code provides that in a SAPCR, 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). Thus, a party seeking interim attorney’s fees under

section 105.001 has the burden of showing that payment of the requested attorney’s fees is

necessary for the safety and welfare of the child. See In re Rogers, 370 S.W.3d at 445; see also

In re Payne, No. 03-17-00757-CV, 2018 Tex. App. LEXIS 2449, at *4-5 (Tex. App.—Austin

Apr. 5, 2018, orig. proceeding) (mem. op.) (explaining that trial court may not order payment of

attorney’s fees for purpose of “leveling the playing field”).

Upon review of the mandamus record, we conclude that Ho did not present

any evidence at the attorney’s-fees hearing demonstrating that the payment of the requested

attorney’s fees was necessary for the safety and welfare of L.T.O. In addition, because “good

cause” is not the operative standard under Section 105.001, the trial court’s good-cause finding,

even if supported by evidence, will not support the award. See In re Rogers, 370 S.W.3d at 445-

3 46 (explaining that Section 105.001 does not authorize trial court to order payment of fees “for

a purpose other than the safety and welfare of the child”).

In response to O’Connor’s petition, Ho does not dispute that she did not present

evidence to support an award of attorney’s fees under Section 105.001. Instead, Ho argues that

the trial court did not abuse its discretion because it awarded the attorney’s fees to her for “good

cause,” as a sanction and not under Section 105.001. See Tex. Civ. Prac. & Rem. Code §§ 10.001,

10.004(b); Tex. R. Civ. P. 13; Brewer v. Lennox Hearth Prods., LLC, 601 S.W.3d 704, 718-719

(Tex. 2020) (explaining that court’s inherent power to sanction “exists to the extent necessary

to deter, alleviate and counteract bad faith abuse of the judicial process”); Howell v. Texas

Workers’ Comp. Comm’n, 143 S.W.3d 416, 446 (Tex. App.—2004, pet. denied). Nothing in the

record, however, indicates that the trial court awarded the fees as a sanction. In fact, the trial

court judge questioned Ho’s attorney about his characterization of the requested fees as a

sanction and then expressly stated at the attorneys-fees hearing that he was not imposing

sanctions. Specifically, the trial court judge stated, “Yeah, but these aren’t sanctions. . . . I’m

only in fees-for-hearing-work territory, not that anybody has done something sanctionable.” We

disagree with Ho’s contention that the attorney’s-fees award was intended as a sanction.

However, after rejecting Ho’s request for sanctions, the trial court judge went on

to state: “[I]t’s long been my impression and understanding that I can order fees for a particular

hearing that were not interim fees [and that] if I find it appropriate, I can give fees to the

winner.” Based on these comments, it appears that the judge assumed that he had inherent

authority to award attorney’s fees to Ho as a prevailing party. This assumption is incorrect.

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