OPINION ON MOTION FOR REHEARING
COHEN, Justice.
The Court denies Daniel Lemkuil’s motion for en banc rehearing, but the panel withdraws its opinion of May 31, 2001 and issues this opinion in its stead.
In this divorce case, the judge appointed a guardian ad litem and an attorney ad litem for the children. The judge then allowed the guardian to hire an attorney and assessed part of that attorney’s fees against appellant, John Samara (“John”). The question is, did the trial judge have authority to allow the guardian to hire an attorney? We hold she did not. Thus, we reverse and render judgment that John not pay fees to the guardian’s attorney. We affirm the judgment in all other respects.
Facts
The trial judge initially appointed Christine Jonte as both guardian ad litem and attorney ad litem for the children. She then removed Jonte as guardian and appointed Marinelle Timmons as the new guardian ad litem. Jonte continued to serve as attorney ad litem. While Jonte was thus serving, the judge granted Tim-mons’s motion to hire attorney Daniel Lemkuil to represent Timmons in her role as guardian ad litem.
The parties made an oral Rule 11 agreement on child support, custody, visitation, asset division, and, John alleges, debt allocation.
The judgment (1) awarded Lem-kuil $9,650 in attorney’s fees against John and (2) ordered John to pay some debts incurred by Sonya. John contends the first item above was unauthorized by law and the second was contrary to the Rule 11 agreement.
Dismissal Motion
Lemkuil has moved for dismissal, claiming John is estopped from appealing because he (1) moved to modify child custody
while this appeal was pending, (2) accepted the child custody and child support award, and (3) accepted the terms of the property award.
John is not estopped from appealing when, as here, the relief he seeks would not affect his right to benefits he accepted in the judgment.
See Carle v. Carle,
149 Tex. 469, 234 S.W.2d 1002, 1004 (1950);
Twin City Fire Ins. Co. v. Jones,
834 S.W.2d 114, 115 (Tex.App.—Houston [1st Dist.] 1992, writ denied). John’s appeal involves attorney’s fees and debt allocation, not issues regarding child support, child custody, or property division, which Lemkuil contends John has accepted. Thus, a reversal of the debt allocation and attorney’s fees would not affect John’s other rights under the divorce judgment.
We hold that John is not estopped from bringing this appeal.
Lemkuil further contends we should dismiss this appeal because John (1) has not filed a reporter’s record, (2) has not complied with the original briefing schedule, (3) did not serve Lemkuil with a copy of John’s motion for extension of time to file the appellant’s brief, or other documents, and (4) did not attach a certificate of conference to John’s motion for extension of time to file a brief, which was filed on August 17, 2000.
See
Tex.R.App. P. 10.1(a)(4), (a)(5).
First, failure to file a reporter’s record does not justify dismissal. We must still decide the appeal based on the briefs and the clerk’s record.
See
Tex. R.App. P. 37.3(c). Second, John complied with this Court’s briefing schedule. Third, John’s documents filed here contain certificates of service. No evidence shows the certificates were made in bad faith. Fourth, while John did not attach a certificate of conference to his motion for extension of time to file his brief, we ordered John to file .his brief by November 30, 2000, and Lemkuil never moved for reconsideration of that ruling. We decline to dismiss John’s entire appeal for one procedural violation on one motion, the disposition of which Lemkuil never contested.
We deny Lemkuil’s dismissal
motion
and also John’s motion for sanctions under Tex. R.App. P. 45.
Guardian Ad Litem
In his first and third issues, John contends the trial judge erred by (1) allowing the guardian ad litem to hire Lemkuil as her counsel and (2) requiring John to pay Lemkuil’s attorney’s fees. John contends that (1) Rule 173
does not provide for appointment of an attorney for a guardian ad litem and (2) in any event, the guardian did not need an attorney because the attorney ad litem, Jonte, was already representing the children.
See
Tex. Fam.Code Ann. § 107.011 (Vernon 1996) (attorney ad litem may be appointed “to protect the interests of the child .... ”);
id.
§ 107.014 (Vernon Supp.2001). We agree.
The judge’s order allowing Tim-mons to hire Lemkuil had the same effect as if the judge had appointed Lemkuil to represent the children. No statute expressly allows a judge to appoint an attorney for a guardian ad litem.
Moreover,
courts do not have inherent power to do so.
See Thomas v. Anderson,
861 S.W.2d 58, 61 (Tex.App.—El Paso 1993, no writ);
see also Toles v. Toles,
45 S.W.3d 252, 267 (Tex.App.—Dallas 2001, no pet.). If Tim-mons needed legal advice to protect the children’s interests, she should have consulted Jonte, the attorney ad litem. If dissatisfied with Jonte, Timmons should have requested a different attorney ad li-tem or resigned and requested the judge to appoint an attorney as guardian ad li-tem. We hold that (1) the trial judge exceeded her authority by appointing Lemkuil to represent Timmons and (2) requiring John to pay Lemkuil’s fees was harmful.
Generally, the standard of review for attorney’s fees is abuse of discretion. Here, the judge had no authority to appoint Lemkuil; therefore, she had no discretion to do so.
See Goode v. Shoukfeh,
943 S.W.2d 441, 446 (Tex.1997) (a trial court abuses its discretion if its decision is contrary to law). Even if the judge had had such discretion, the appointment of a second attorney would have been justified only by extraordinary circumstances. It is the attorney ad litem’s duty to represent the children.
See
Tex. Fam.Code. Ann. § 107.014. Few children need two attorneys, one for themselves and another for their guardian, and nothing suggests these children did.
We sustain John’s first and third issues.
Oral Rule 11 Agreement
In his second issue, John contends the trial judge erred by entering a judgment different from the oral Rule 11 agreement. John contends that agreement required Sonya to pay all debts she incurred. The judgment did not order that, however. Instead, it ordered Sonya to pay any debts she incurred “...
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OPINION ON MOTION FOR REHEARING
COHEN, Justice.
The Court denies Daniel Lemkuil’s motion for en banc rehearing, but the panel withdraws its opinion of May 31, 2001 and issues this opinion in its stead.
In this divorce case, the judge appointed a guardian ad litem and an attorney ad litem for the children. The judge then allowed the guardian to hire an attorney and assessed part of that attorney’s fees against appellant, John Samara (“John”). The question is, did the trial judge have authority to allow the guardian to hire an attorney? We hold she did not. Thus, we reverse and render judgment that John not pay fees to the guardian’s attorney. We affirm the judgment in all other respects.
Facts
The trial judge initially appointed Christine Jonte as both guardian ad litem and attorney ad litem for the children. She then removed Jonte as guardian and appointed Marinelle Timmons as the new guardian ad litem. Jonte continued to serve as attorney ad litem. While Jonte was thus serving, the judge granted Tim-mons’s motion to hire attorney Daniel Lemkuil to represent Timmons in her role as guardian ad litem.
The parties made an oral Rule 11 agreement on child support, custody, visitation, asset division, and, John alleges, debt allocation.
The judgment (1) awarded Lem-kuil $9,650 in attorney’s fees against John and (2) ordered John to pay some debts incurred by Sonya. John contends the first item above was unauthorized by law and the second was contrary to the Rule 11 agreement.
Dismissal Motion
Lemkuil has moved for dismissal, claiming John is estopped from appealing because he (1) moved to modify child custody
while this appeal was pending, (2) accepted the child custody and child support award, and (3) accepted the terms of the property award.
John is not estopped from appealing when, as here, the relief he seeks would not affect his right to benefits he accepted in the judgment.
See Carle v. Carle,
149 Tex. 469, 234 S.W.2d 1002, 1004 (1950);
Twin City Fire Ins. Co. v. Jones,
834 S.W.2d 114, 115 (Tex.App.—Houston [1st Dist.] 1992, writ denied). John’s appeal involves attorney’s fees and debt allocation, not issues regarding child support, child custody, or property division, which Lemkuil contends John has accepted. Thus, a reversal of the debt allocation and attorney’s fees would not affect John’s other rights under the divorce judgment.
We hold that John is not estopped from bringing this appeal.
Lemkuil further contends we should dismiss this appeal because John (1) has not filed a reporter’s record, (2) has not complied with the original briefing schedule, (3) did not serve Lemkuil with a copy of John’s motion for extension of time to file the appellant’s brief, or other documents, and (4) did not attach a certificate of conference to John’s motion for extension of time to file a brief, which was filed on August 17, 2000.
See
Tex.R.App. P. 10.1(a)(4), (a)(5).
First, failure to file a reporter’s record does not justify dismissal. We must still decide the appeal based on the briefs and the clerk’s record.
See
Tex. R.App. P. 37.3(c). Second, John complied with this Court’s briefing schedule. Third, John’s documents filed here contain certificates of service. No evidence shows the certificates were made in bad faith. Fourth, while John did not attach a certificate of conference to his motion for extension of time to file his brief, we ordered John to file .his brief by November 30, 2000, and Lemkuil never moved for reconsideration of that ruling. We decline to dismiss John’s entire appeal for one procedural violation on one motion, the disposition of which Lemkuil never contested.
We deny Lemkuil’s dismissal
motion
and also John’s motion for sanctions under Tex. R.App. P. 45.
Guardian Ad Litem
In his first and third issues, John contends the trial judge erred by (1) allowing the guardian ad litem to hire Lemkuil as her counsel and (2) requiring John to pay Lemkuil’s attorney’s fees. John contends that (1) Rule 173
does not provide for appointment of an attorney for a guardian ad litem and (2) in any event, the guardian did not need an attorney because the attorney ad litem, Jonte, was already representing the children.
See
Tex. Fam.Code Ann. § 107.011 (Vernon 1996) (attorney ad litem may be appointed “to protect the interests of the child .... ”);
id.
§ 107.014 (Vernon Supp.2001). We agree.
The judge’s order allowing Tim-mons to hire Lemkuil had the same effect as if the judge had appointed Lemkuil to represent the children. No statute expressly allows a judge to appoint an attorney for a guardian ad litem.
Moreover,
courts do not have inherent power to do so.
See Thomas v. Anderson,
861 S.W.2d 58, 61 (Tex.App.—El Paso 1993, no writ);
see also Toles v. Toles,
45 S.W.3d 252, 267 (Tex.App.—Dallas 2001, no pet.). If Tim-mons needed legal advice to protect the children’s interests, she should have consulted Jonte, the attorney ad litem. If dissatisfied with Jonte, Timmons should have requested a different attorney ad li-tem or resigned and requested the judge to appoint an attorney as guardian ad li-tem. We hold that (1) the trial judge exceeded her authority by appointing Lemkuil to represent Timmons and (2) requiring John to pay Lemkuil’s fees was harmful.
Generally, the standard of review for attorney’s fees is abuse of discretion. Here, the judge had no authority to appoint Lemkuil; therefore, she had no discretion to do so.
See Goode v. Shoukfeh,
943 S.W.2d 441, 446 (Tex.1997) (a trial court abuses its discretion if its decision is contrary to law). Even if the judge had had such discretion, the appointment of a second attorney would have been justified only by extraordinary circumstances. It is the attorney ad litem’s duty to represent the children.
See
Tex. Fam.Code. Ann. § 107.014. Few children need two attorneys, one for themselves and another for their guardian, and nothing suggests these children did.
We sustain John’s first and third issues.
Oral Rule 11 Agreement
In his second issue, John contends the trial judge erred by entering a judgment different from the oral Rule 11 agreement. John contends that agreement required Sonya to pay all debts she incurred. The judgment did not order that, however. Instead, it ordered Sonya to pay any debts she incurred “...
from and after August 1, 1998, unless express provision is made in this Decree to the contrary.”
(Emphasis added.) The judgment then made “express provision ... to the contrary,” ordering John to pay Sonya’s debts for (1) utilities, (2) $3,246.00 for a child’s mental treatment, (3) $703 for homeowner’s association dues, and (4) $909 for fire insurance.
John’s new trial motion did not mention these four debts. It stated:
[S]aid Divorce Decree seeks to impose indebtedness which should be paid by [Sonya], on [John] instead. Also, in contravention of the parties Exhibit “B” Agreement.
Thus, this issue was not preserved for appellate review.
See
Tex.R.App. P. 33.1(a). Moreover, evidence that Sonya
agreed to pay these debts is not in the appellate record. The appendix of John’s brief contains Sonya’s testimony regarding debt allocation from the Rule 11 hearing, but because the appendix is not part of the appellate record, we cannot consider it.
See Till v.
Thomas, 10 S.W.3d 730, 733-34 (Tex.App.—Houston [1st Dist.] 1999, no pet.) (holding appellate courts cannot consider documents attached to briefs that do not appear in the appellate record). Without Sonya’s testimony establishing the allocation of debt under the Rule 11 agreement, we cannot conclude that the agreement conflicts with the judgment.
We overrule John’s second issue.
We reverse only that portion of the judgment requiring John to pay Lemkuil’s attorney’s fees and render judgment that Lemkuil take nothing in attorney’s fees from John.
The judgment is otherwise affirmed.
A majority of the justices of this Court voted to deny Daniel Lenkuil’s motion for en banc rehearing.