law-attorneys-fees-order-as-child-support | attorney's fees | child support
ATTORNEY'S FEES AS CHILD SUPPORT ?
IN THE INTEREST OF D.C.M. AND L.G.M.
Court of Appeals of Texas, Fourteenth District, Houston.
IN THE INTEREST OF D.C.M. AND L.G.M.; from Fort Bend County; 14th district (14-06-00844-CV, ___
SW3d ___, 09-09-08, pet denied) (SAPCR modification, multiple issue on appeal, mischaracterization of
attorney's fees as child support corrected)
In his twenty-fifth issue, appellant contends that the trial court erred in characterizing attorney's fees as
child support. In a suit affecting the parent-child relationship, the Family Code provides that a trial court
"may order reasonable attorney's fees as costs" and that such fees "may be enforced ... by any means
available for the enforcement of a judgment for debt." TEX. FAM. CODE ANN. § 106.002 (Vernon 2005).
Although attorney's fees may be taxed as child support in suits brought to enforce a child support order,
courts distinguish between fees awarded in the original divorce action and fees awarded in suits brought
to modify a child support order because of the consequences that follow from characterizing the fees as
child support. See Roosth v. Daggett, 869 S.W.2d 634, 637 (Tex. App.-Houston [14th Dist.] 1994, orig.
proceeding). Texas law prohibits imprisoning a person for debt and collecting attorney's fees by
contempt proceedings. See TEX. CONST. art. I, § 18; Wallace v. Briggs, 162 Tex. 485, 348 S.W.2d 523,
525-26 (1961). However, attorney's fees and costs awarded in proceedings to enforce child support
payments are not considered debt and may be enforced through a contempt judgment. Tex. Fam. Code
Ann. § 157.167. Furthermore, a decree that awards attorney's fees characterized as child support could
result in garnishment of the obligor's wages and loss of the obligor's professional licenses in a suit
brought to enforce the decree. See Tex. Const. art. XVI, § 28; TEX. FAM. CODE ANN. § 232.003
In this case, the trial court ordered "that the attorney's fees, expenses, and costs, which were incurred in
relation to the children, are in the nature of child support[.]" Because this is not a case of child support
enforcement, the trial court erred in characterizing the attorney's fees as child support. See In re Moers,
104 S.W.3d 609, 612 (Tex. App.-Houston [1st Dist.] 2003, no pet.); Roosth, 869 S.W.2d at 637.
Appellant's twenty-fifth issue is sustained and the judgment is modified to delete the characterization of
attorney's fees as child support.
In issues eighteen through twenty-three and twenty-six through twenty-eight, appellant refers the court
to discussions in issues one through fifteen, seventeen, and twenty. Because we have overruled issues
one through fifteen, seventeen, and twenty, issues eighteen through twenty-three and twenty-six
through twenty-eight are overruled.
The judgment of the trial court is modified to delete any reference to the characterization of attorney's
fees as "child support," or "in the nature of child support." In all other respects, the judgment of the trial
court is affirmed.