in Re Heather Sartain

Opinion issued April 3, 2008 In The Court of Appeals For The First District of Texas NO. 01-07-00920-CV IN RE HEATHER SARTAIN, Relator Original Proceeding on Petition for Writ of Mandamus MEMORANDUM OPINION By petition for writ of mandamus, relator, Heather Sartain, challenges the trial court's (1) temporary order for interim attorney's fees. We conditionally grant the petition for writ of mandamus. Background Relator filed a motion to modify, and after several procedural maneuvers on both sides, the real party in interest moved for temporary orders, including an order for interim attorney's fees. After the associate judge awarded attorney's fees, relator appealed to the district court for a de novo review of the associate judge's order. The trial court held a non-evidentiary hearing at which the attorney for real party in interest argued that the court should award attorney's fees in the amount of $35,000 to $40,000 because (1) relator was attempting to relitigate issues decided in an earlier motion to modify, (2) relator earned more money than real party in interest and had access to other support from friends and family and a possible inheritance, and (3) relator had not previously paid child support. Real party in interest's attorney noted that he had "incurred to date with our firm $19,850." She further stated, "We would expect if we're going to spend another week in trial that it's probably going to be another $15,000 just to appear at trial and to prepare and to do the follow up documents . . . . Our position is that my client has incurred these fees and these fees are reasonable and necessary . . . ." Relator argued that an award of interim attorney's fees would be improper absent a finding that such fees were for the "safety and welfare" of the child. The trial court later issued temporary orders, which, among other things, granted real party in interest's motion for interim attorney's fees, awarded $20,000, and stated that they were necessary for real party in interest's attorney "to conduct discovery and properly prepare for trial and to protect the best interest of the child." Relator petitioned for writ of mandamus asserting that there are no pleadings and no court findings that the attorney's fees are for the safety and welfare of the child. Mandamus Mandamus relief is available 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) (orig. proceeding). "A trial court clearly abuses its discretion if 'it reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law.'" Id. (citing Johnson v. Fourth Court of Appeals, 700 S.W.2d 916, 917 (Tex. 1985) (orig. proceeding)). 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. Tex. Fam. Code Ann. §105.001 (Vernon Supp. 2007); see, e.g., Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (orig. proceeding) (holding that mandamus is appropriate remedy because temporary order granting visitation is not appealable); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding) (holding that mandamus is an appropriate remedy because "the trial court's issuance of temporary orders is not subject to interlocutory appeal"). Interim Attorney's Fees In a suit affecting the parent-child relationship, a "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 Ann. §105.001(a)(5) (Vernon Supp. 2007). We addressed this situation in Saxton v. Daggett, which involved the prior version of this statute. Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex. App.--Houston [1st Dist.] 1993, no writ). In Saxton, the relator sought mandamus relief, among other things, from the trial court's order that he pay $19,000 in interim attorney's fees. Id. We noted that the prior version of the Family Code provided that a court could make a temporary order for the safety and welfare of the child, including an order for reasonable attorney's fees and expenses. Id. But we held that the Family Code did not "authorize a trial court, in a suit affecting the parent-child relationship, to make a temporary order for payment of reasonable attorney's fees for a purpose other than the safety and welfare of the child." Id. (emphasis in original). In Saxton, the trial court had ordered the payment of fees that had already been accrued in order to "level the playing field" between the parties. Id. Adequate discovery from both sides was not without relation to the safety and welfare of the children; in general, adequate discovery could be expected to promote the development of a sufficient factual exposition, necessary here for respondent to decide the motion to modify conservatorship of the children in accordance with the best interest of the children. However, the fruits of discovery accomplished prior to the April 5 hearing were already available and would in the future promote the safety and welfare of the children to the extent of their power to do so; the extent of that power was not increased by retroactively shifting the cost of that discovery to Saxton. Id. (emphasis in original). Here, the trial court ordered the payment of interim attorney's fees to enable real party in interest's attorney "to conduct discovery and properly prepare for trial and to protect the best interest of the child." Because this was a non-evidentiary hearing, the trial court heard no evidence and, therefore, could not have heard any evidence that the attorney's fees were needed for the safety and welfare of the child. (2) Moreover, real party in interest's attorney argued for attorney's fees to cover the charges that had previously accrued and because, in her estimation, relator was in a better position to pay the fees than real party in interest. Such an award of interim attorney's fees in a suit affecting the parent-child relationship is not authorized. Tex. Fam. Code Ann. §105.001(a)(5); Saxton, 864 S.W.2d at 736. Conclusion We hold that the trial court abused its discretion by ordering interim attorney's fees because the order does not comport with section 105.001(a)(5) of the Family Code. Tex. Fam. Code Ann. §105.001(a)(5). We conditionally grant relator's petition for writ of mandamus, and we direct the trial court to vacate its September 25, 2007, temporary order for interim attorney's fees. We are confident the trial court will promptly comply, and our writ will issue only if it does not. We vacate the temporary stay granted in this case on October 29, 2007. Sam Nuchia Justice Panel consists of Justices Nuchia, Hanks, and Higley. 1. Respondent is the 306th District Court of Galveston County, Texas, the Honorable Janis L. Yarbrough, presiding. The underlying suit is In the Interest of S.N.C., A Child; Cause No. 02FD1467. 2. Real party in interest argues that relator waived her complaint about the lack of evidence because she requested to proceed without evidence at the hearing. Relator did not have the burden of proof in the trial court; real party in interest did. Requesting to proceed without testimony is not tantamount to stipulating to the real party in interest's factual account. Relator did not waive her right to mandamus relief. See McFadden v. Bresler Malls, Inc., 526 S.W.2d 258, 261 (Tex. Civ. App.--Austin 1975, no writ); see also Tex. R. App. P. 33.1(d) ("In a nonjury case, a complaint regarding the legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the complaining party's brief.").