MIS-CHARACTERIZATION OF ATTORNEY'S FEES AS CHILD SUPPORT CORRECTED ON APPEAL
In Interest of DCM, LGM (Tex.App.- Houston [14th Dist.] Sep. 9, 2008)(Hedges)
(SAPCR modification, multiple issue on appeal, mischaracterization of attorney's fees as child support corrected)
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.
AFFIRMED: Opinion by Chief Justice Hedges
Before Price, Chief Justice Hedges, Justice Boyce
14-06-00844-CV In the Interest of D.C.M. and L.G.M
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: Robert J. Kern
Attorneys: Helen Tyne Mayfield | Kelly C Heallen, Jeremy Patrick Heallen
M E M O R A N D U M O P I N I O N
Christopher Joseph McCloskey appeals from a modification in a suit affecting the parent-child
relationship. In twenty-nine issues, appellant challenges the sufficiency of the evidence to support the
modification and several rulings of the trial court.
On March 6, 2003, appellee, Anne McCloskey, filed a motion for modification of a prior order in a suit
affecting the parent-child relationship. During the pendency of appellee's motion, the trial court
appointed an amicus attorney for the children. The trial court subsequently issued temporary orders,
which required the parties to refrain from making disparaging remarks about each other and from
discussing any court matters with the children. The court further ordered appellant to participate in
parent counseling individually and with the children. Approximately one year later, appellant filed a
motion to modify conservatorship and attached an affidavit signed by D.C.M., the parties' son, stating
the son's desire to live with appellant. On June 30, 2004, the trial court held a hearing at which the court
ordered that appellant's visitation was to be supervised by the Safe Program. Appellant was later
expelled from the Safe Program because he violated the court's order not to discuss court matters with
Appellee filed special exceptions alleging that appellant's motion to modify and other pleadings did not
conform to the Texas Rules of Civil Procedure. After a hearing, the trial court ordered appellant to
replead his affirmative pleadings because he failed to plead in broad form. Appellant also filed several
evidentiary documents with the court, to which the court granted special exceptions. After the court
ordered appellant to replead, but before the court set a due date, appellant announced that he had filed
for bankruptcy. Because the court understood that it could not act until the bankruptcy stay was lifted,
the court set a date for appellant to return, and adjourned.
Prior to trial, the trial court ordered both parties to pay deposits on the amicus attorney's fees and
ordered that failure to pay would result in the striking of the offending party's affirmative pleadings. On
the first day of trial, the court asked appellant if he had filed pleadings and paid the amicus fees in
compliance with the previous orders. Appellant responded that he had neither repled, nor paid the
fees; therefore, the trial court struck appellant's affirmative pleadings. The parties proceeded to trial on
appellee's motion to modify. At the conclusion of the trial, the trial court ordered that appellant's
visitation with the children shall occur exclusively through the Safe Program. If appellant was not re-
admitted to the Safe Program within 30 days of his application, the trial court agreed to appoint another
entity or person to supervise appellant's visitation with the children. Appellant's motion for new trial and
his motion for alternative supervision were subsequently denied.
Initially, we must address the consequences of an incomplete record. The reporter's record in this case
is not complete. The reporter's record consists of the complete transcription of the trial and
transcriptions of hearings that took place on June 30, 2004, January 26, 2005, September 20, 2006,
and October 25, 2006. Missing from the reporter's record are hearings that took place on September
3, 2004, where appellant was ordered to be evaluated by a psychologist; June 28, 2006, where the trial
court ordered the parties to pay costs pursuant to Texas Rule of Civil Procedure 143; July 13, 2006,
where appellee's motion for sanctions was addressed; and October 11, 2006, where the motion for
new trial was addressed. However, the clerk's record contains neither a request for a partial reporter's
record from appellant to the official reporter, nor a statement of the points or issues to be presented on
An appellant who requests a partial record must include in the request a statement of the points or
issues to be presented on appeal; he will then be limited to only those points or issues raised. Tex. R.
App. P. 34.6(c)(1); Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex. 2002). A copy of the request must
be filed with the trial court clerk. Tex. R. App. P. 34.6(b)(2). When portions of the record are missing
and an appellant completely fails to submit his statement of points or issues, we are required under
Rule 34.6 to affirm the judgment of the trial court. Bennett, 96 S.W.3d at 229. In this case, the clerk's
record contains neither a request for a partial reporter's record from appellant to the official reporter, nor
a statement of the points or issues to be presented on appeal.
Appellant contends that he requested the court reporter to transcribe the hearings and that he filed a
motion with this court regarding the discrepancies in the record. Appellant's attorney filed an affidavit
attached to a motion to extend time to file appellant's brief in which she complained that the reporter's
record was deficient, but there is no evidence in the record that appellant paid for the hearing records
or requested that they be filed in the appellate court. Because appellant did not comply with Rule 34.6
(c)(1) of the Rules of Appellate Procedure, we must presume that the omitted portions of the reporter's
record support the trial court's judgment regarding issues raised in those hearings for which there is no
reporter's record. See Van Buren v. McMillen, No. 14-03-00928-CV, 2004 WL 1898799, *1 (Tex. App.-
Houston [14th Dist.] 2004, no pet.) (mem. op.).
Sufficiency of Evidence on Modification
In his first, second, fourth, thirteenth, twenty-second, twenty-fourth, and twenty-ninth issues, appellant
argues that the evidence does not support the trial court's modification order. Appellant argues that the
trial court abused its discretion in changing the visitation guidelines. A trial court may modify an order
establishing conservatorship of or possession of and access to children if modification would be in the
best interest of the child and the circumstances of the child, a conservator, or other party affected by the
order have materially and substantially changed since the date of the rendition of the order. Tex. Fam.
Code Ann. §156.101 (Vernon 2005).
We review the trial court's modification of possession and access under an abuse of discretion
standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). In our review of the trial court's
findings, we apply a hybrid abuse of discretion analysis to determine whether the trial court (1) had
sufficient information on which to exercise its discretion, and (2) erred in its application of discretion.
See In re C.A.M.M., 243 S.W.3d 211, 220 (Tex. App.-Houston [14th Dist.] 2007, pet. filed); see also
Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.-El Paso 2005, no pet.). Thus, legal and factual
insufficiency are not independent grounds for reversal, but instead are factors to be considered in
determining whether the trial court abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587
(Tex. App.-Austin 2006, pet. denied).
To determine if the evidence is legally sufficient, we review the entire record, considering evidence
favorable to the finding if a reasonable factfinder could, and disregarding evidence contrary to the
finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 828 (Tex.
2005). The evidence is factually insufficient if the finding is so contrary to the overwhelming weight of
the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986). After assessing the sufficiency of the evidence, we determine whether, based on the elicited
evidence, the trial court made a reasonable decision. See Zeifman, 212 S.W.3d at 588.
Best Interests of the Children
In determining the best interests of the children, a court may consider: (1) their desires, (2) their
emotional and physical needs now and in the future, (3) any emotional and physical danger to the
children now and in the future, (4) the parental abilities of the individuals seeking primary possession,
(5) the programs available to assist these individuals to promote the children's best interests, (6) the
plans for the children by those seeking primary possession, (7) the stability of the home or proposed
placement, (8) the acts or omissions of the parent, which may indicate that the existing parent-child
relationship is not a proper one, and (9) any excuse for the acts or omissions of the parent. Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
In its findings of fact, the trial court found that it is in the best interest of the children to have supervised
visitation with appellant and that a standard possession order is not in the best interest of the children.
The court further found that appellant's behavior created a substantial conflict between the children and
appellee, which was not in the best interest of the children.
At trial, appellant submitted an affidavit signed by D.C.M. stating that the son wished to live with his
father. There was evidence that appellant had influenced his son to sign the affidavit. Dr. Mazie
Leftwich, a court-appointed therapist who testified that she counseled appellant not to ask his son to
sign such an affidavit as it is cruel to ask a child to choose which parent with whom to live, or to ask a
child to leave his sibling. By asking his son to sign the affidavit, appellant violated the court's prior order
not to discuss conservatorship matters with the children.
There was extensive testimony about the emotional aspects of appellant's visitation with the children.
Appellant refused to permit the children to participate in extracurricular activities during his periods of
visitation. He caused a scene at the daughter's cheerleading competition and when appellee picked up
the children from day care. In both instances, appellant accused appellee of taking the children away
from him. The son missed a camping trip with the boy scouts and eventually quit karate lessons
because appellant would not take the son to extracurricular activities if the activities fell during
appellant's visitation. The daughter had a girl scout mother-daughter event during appellant's visitation,
but appellant refused to permit appellee to take her to the event.
Appellee testified that when appellant was in the Safe Program, the difficulties concerning the children's
extracurricular activities diminished. The Safe Program permitted appellee to reschedule the children's
visits with appellant if they had an extracurricular activity. Applying the appropriate standards of review,
we find that the evidence supports the trial court's findings that supervised visitation is in the children's
Material and Substantial Change
The trial court did not err in finding a material and substantial change. The trial court found that
appellant intentionally harassed Dr. Leftwich in an effort to subvert her testimony regarding appellant's
behavior with the children. The court further found that appellant violated court orders during his periods
of visitation through the Safe program, and that appellant had not exercised his right to access to the
children in more than one year from the date of trial. Finally, the court found that after the Safe program
suspended appellant's right to visit the children, the children demonstrated “marked improvement in
their emotional and psychological well-being." A court's determination as to whether a material change
of circumstances has occurred is not guided by rigid rules and is fact-specific. See In re Z.B.P., 109 S.
W.3d 772, 779 (Tex. App.- Fort Worth 2003, no pet.). In addition to appellant's violation of the court's
order not to discuss court matters with the children, the evidence showed other changes in the
circumstances of the parties. Dr. Leftwich testified that appellant terminated counseling because he did
not think he had anger management and parenting issues. Dr. Leftwich testified to the contrary:
appellant had not accepted responsibility for any of the problems in his marriage or with his children.
The scenes he caused in the children's presence were evidence of his inability to control his anger. He
harassed appellee and the children to such a degree that the court ordered supervised visitation.
On this record, we find that the trial court had sufficient evidence upon which to exercise its discretion.
Further, the trial court did not err in its application of this discretion. The record supports the trial court's
findings and its conclusion that the modification is in the children's best interest and that there has been
a material and substantial change since the prior order. Appellant's first, second, fourth, thirteenth,
twenty-second, twenty-fourth, and twenty-ninth issues are overruled.
Referral to District Attorney
In his third issue, appellant contends that the trial court abused its discretion in denying his request to
refer his complaint against appellee to the Fort Bend County District Attorney pursuant to section
156.104(b) of the Texas Family Code. Section 156.104(a) provides that the conviction of a parent for
an offense involving the abuse of a child constitutes a material change in circumstances sufficient to
justify a temporary order and modification of an existing court order. Section 156.104(b) makes it an
offense to file a motion to modify based on section 156.104(a) if the person who files the motion knows
that the parent did not commit an offense involving abuse of a child.
In a post-judgment motion, appellant claimed that appellee made allegations in her motion to modify
that appellant had committed child abuse. Because appellant had not been convicted of child abuse,
he claimed that appellee should be referred for prosecution under section 156.104(b). However, the
record reflects that appellee did not allege that appellant had committed or had been convicted of child
abuse. Therefore, the trial court was under no obligation to refer the case to the District Attorney.
Appellant's third issue is overruled.
In his fifth and tenth issues, appellant contends that his First and Fourteenth Amendment rights under
the United States Constitution have been violated. In his motion for new trial, appellant argued that the
trial court's order was unconstitutional because it interfered with his right to make decisions about
rearing his children. Specifically, appellant contends that the trial court erred in (1) prohibiting him from
discussing court matters with the children and (2) ordering the children to counseling.
The Texas Family Code requires that the best interest of the child is the court's primary consideration in
determining issues of conservatorship and access. Tex. Fam. Code Ann. §153.002 (Vernon 2005).
Texas courts have repeatedly recognized that the best interest of the child standard does not violate
federal or state constitutional principles. In re J.R.D., 169 S.W.3d 740, 744 (Tex. App.- Austin 2005,
pet. denied) (holding best interest of the child standard does not infringe father's fundamental
constitutional right to parent his children); In re R.D.Y., 51 S.W.3d 314, 324 (Tex. App.- Houston [1st
Dist.] 2001, pet. denied) (mother was not denied due process of law or equal protection of law based
on the court's finding that the child's best interest weighed against the mother receiving overnight
visitation with child); In re H.D.O., 580 S.W.2d 421, 424 (Tex. App.- Eastland 1979, no writ) (holding
best interest of the child standard does not violate the due process clause or the equal protection
clause of the Fourteenth Amendment and does not violate Article I, Section 19 of the Texas
Constitution). Because the best interest of the child standard does not violate federal or state
constitutional protections, appellant's fifth and tenth issues are overruled.
In his sixth issue, appellant contends that the trial court erred in proceeding to trial on appellee's motion
to modify without determining if the bankruptcy stay had been lifted. Section 362 of the Bankruptcy
Code specifically exempts matters “concerning child custody or visitation” from the automatic stay. 11.
U.S.C. ' 362. Therefore, the trial court did not abuse its discretion in proceeding without a lift of the
bankruptcy stay. Appellant's sixth issue is overruled.
In his seventh issue, appellant contends that the trial court erred in striking his pleadings for failure to
replead. The trial court issued two orders striking appellant's affirmative pleadings. The pleadings
were struck for failure to replead and for appellant's failure to provide security for the amicus attorney's
fees. On appeal, appellant does not challenge the trial court's order striking the pleadings for failure to
pay amicus fees.
On January 7, 2005, appellee filed special exceptions alleging that appellant's affirmative pleadings
failed to comply with Texas Rule of Civil Procedure 45 in that the pleadings contained multiple
unsubstantiated allegations of evidentiary facts designed to prejudice the court. After a hearing, the trial
court ordered appellant to replead his affirmative pleadings in compliance with the Rules of Civil
Procedure. On August 2, 2006, the trial court issued a written order striking appellant's affirmative
pleadings for failure to replead. The trial court specifically retained appellant's general denial filed in
response to appellee's motion to modify. However, the record contains no written order granting the
special exceptions; therefore appellee waived her special exceptions. See Gallien v. Washington Mut.
Home Loans, Inc., 209 S.W.3d 856, 862 (Tex. App.- Texarkana 2006, no pet.).
The trial court also struck appellant's pleadings pursuant to Rule 143 of the Texas Rules of Civil
Procedure. On June 28, 2006, the trial court heard a Motion for Costs filed by the amicus attorney and
ordered the parties to pay a security deposit on the amicus attorney's fees. The trial court's order
recites that appellant and appellee were ordered to pay the amicus attorney the sum of $2,000 no later
than July 14, 2006. The order further recites that appellee complied with the court's order, but that
appellant, as of July 31, 2006, failed to provide any portion of the sum of $2,000. Rule 143 provides:
A party seeking affirmative relief may be ruled to give security for costs at any time before final
judgment, upon motion of any party, or any officer of the court interested in the costs accruing in such
suit, or by the court upon its own motion. If such rule be entered against any party and he failed to
comply therewith on or before twenty (20) days after notice that such rule has been entered, the claim
for affirmative relief of such party shall be dismissed.
Because appellant failed to pay a deposit, his pleadings were subject to being stricken. See Tex. R.
Civ. P. 143.
No record of the hearing at which the trial court ordered the amicus fees to be paid appears in the
appellate record. Therefore, we must presume the missing hearing record supports the trial court's
order to pay the amicus fees. Because appellant failed to pay the fees, the trial court did not err striking
appellant's affirmative pleadings. Moreover, by failing to complain of the trial court's order striking
pleadings for failure to pay amicus fees, appellant waived error. See Pat Baker Co. v. Wilson, 971 S.W.
2d 447, 450 (Tex. 1998) (appellate courts are prohibited from addressing unassigned error).
Accordingly, appellant's seventh issue is overruled.
In his eighth issue, appellant contends that the trial court erred in ordering him to counseling. The
Family Code expressly grants trial courts authority to order that conservators “participate in counseling
with a mental health professional." Tex. Fam. Code Ann. ' 153.010(a). Therefore, the trial court did not
abuse its discretion in ordering appellant to counseling. See In re L.M.M., No. 03-04-00452-CV; 2005
WL 2094758, *10 (Tex. App.- Austin August 31, 2005, no pet.) (mem. op.). Appellant's eighth issue is
In his ninth issue, appellant contends that the trial court abused its discretion in refusing to strike Dr.
Mazie Leftwich as an expert. After Dr. Leftwich testified on direct examination and appellant's attorney
cross-examined her, the amicus attorney requested that Dr. Leftwich be qualified as an expert. At that
time, appellant objected to Dr. Leftwich's testimony on the ground that she was not qualified as an
expert. Appellant argued that under Texas Rule of Evidence 702 and E.I. du Pont de Nemours & Co. v.
Robinson, 923 S.W.2d 549 (Tex. 1995), Dr. Leftwich's testimony was not reliable.
To preserve a complaint that an expert's testimony is unreliable, a party must object to the testimony
before trial or when it is offered. Guadalupe-Blanco Auth. v. Kraft, 77 S.W.3d 805, 807 (Tex. 2002).
Appellant did not object to Dr. Leftwich's testimony until after she testified on direct examination and his
attorney had cross-examined her. Therefore, appellant failed to preserve error, and his ninth issue is
overruled. See Exxon Corp. v. Mafoski, 116 S.W.3d 176, 180B81 (Tex. App.- Houston [14th Dist.]
2003, pet. denied) (the complaining party is required to make a timely objection so that the party
presenting the witness has an opportunity to cure any defects regarding reliability).
Exclusion of Impeachment Evidence
In his eleventh issue, appellant contends that the trial court erred in excluding evidence that would
impeach appellee's testimony. Appellant contends that the trial court did not permit him to present
evidence of appellee's competency as a parent. In his brief, appellant alleges that appellee made false,
exaggerated, and slanderous statements, secreted the children outside of subpoena range, and
suffered from childhood abuse and mental illness. Appellant fails to cite any portion of the record in
which he attempted to present evidence of these allegations, the trial court's ruling on the evidence, or
what the evidence would have been had he been permitted to present it.
Before an appellate court will reverse a judgment based on exclusion of evidence, the appellant must
show that any error in excluding the evidence caused the rendition of an improper judgment. See Tex.
R. App. P. 44.1(a). Further, this court has no duty to search a voluminous record without guidance from
the appellant to determine whether an assertion of reversible error is valid. Melendez v. Exxon Corp.,
998 S.W.2d 266, 280 (Tex. App.- Houston [14th Dist.] 1999, no pet.). The failure to cite to relevant
portions of the trial court record waives appellate review. Id. Appellant's eleventh issue is overruled.
Interviews of the Children
In his twelfth issue, appellant contends that the trial court erred in denying his motions to interview the
children. Appellant requested that the trial court interview the children pursuant to section 153.009(b) of
the Family Code. At the time appellee's suit affecting the parent-child relationship was filed, the Family
When the issue of managing conservatorship is contested, on the application of a party, the court shall
interview a child 12 years of age or older and may interview a child under 12 years of age. Interviewing
a child does not diminish the discretion of the court.
Act of September 1, 2001, 77th Leg., ch. 1289 ' 2 (amended 2005) (current version at Tex. Fam. Code
Ann. ' 153.009(b) (Vernon Supp. 2007)).
The issue of managing conservatorship was not before the trial court; therefore, it did not abuse its
discretion in denying appellant's motion to interview the children. Appellant's twelfth issue is overruled.
Recusal of Trial Court
In his fourteenth issue, appellant contends that the trial court was not impartial. Appellant fails to cite to
any portion of the record where he raised this issue in the trial court. Appellee states in her brief that
appellant filed two motions to recuse and that the trial court held hearings on those motions. The
records of those hearings are not in the appellate record. Because appellant did not comply with Rule
34.6(c)(1) of the Rules of Appellate Procedure, we must presume that the omitted portions of the
reporter's record support the trial court's judgment. See Van Buren, 2004 WL 1898799 at *1.
Accordingly, appellant's fourteenth issue is overruled.
In his fifteenth, sixteenth, and seventeenth issues, appellant contends that the trial court erred in denying
his motion for new trial and in assessing sanctions for allegedly groundless and false accusations made
in the motion for new trial.
Motion for New Trial
We review a trial court's denial of a motion for new trial under the abuse of discretion standard. Cliff v.
Huggins, 724 S.W.2d 778, 778 (Tex. 1987); Puri v. Mansukhani, 973 S.W.2d 701, 715 (Tex. App.-
Houston [14th Dist.] 1998, no pet.). Appellant filed a motion for new trial on the grounds that (1) the
evidence did not support the modification of visitation, (2) there was procedural error in the trial, and (3)
he presented newly discovered evidence. The trial court held a hearing on the motion for new trial, but
the record of that hearing is not part of our appellate record. Therefore, we must presume that the
omitted portions of the reporter's record support the trial court's ruling on the motion for new trial. See
Van Buren, 2004 WL 1898799, at *1.
After appellant filed his motion for new trial, appellee filed a motion for sanctions in which she detailed
numerous legal and factual misrepresentations made by appellant in his motion for new trial. Due to the
egregious nature of appellant's allegations, appellee requested sanctions under Rule 13 of the Texas
Rules of Civil Procedure in the amount of $1,275, the attorney's fees appellee incurred in responding to
appellant's false allegations and misrepresentations.
Rule 13 provides that a party may seek sanctions against a party or counsel or both if the court
determines that any pleading or motion is groundless and brought either in bad faith or for the purpose
of harassment. Tex. R. Civ. P. 13. A pleading is groundless if it has “no basis in law or fact and [is] not
warranted by good faith argument for the extension, modification, or reversal of existing law." Id.
Courts are to presume that pleadings and motions are filed in good faith, and sanctions should not be
imposed except for “good cause, the particulars of which must be stated in the sanction order." Id.;
Bradt v. Sebek, 14 S.W.3d 756, 769 (Tex. App.- Houston [1st Dist.] 2000, pet. denied).
We review a trial court's determination to impose sanctions under an abuse of discretion standard.
GTE Commc'ns Sys. Corp. v. Tanner, 856 S.W.2d 725, 730B32 (Tex. 1993). There is no abuse of
discretion if some evidence of substantive and probative character supports the trial court's decision or
if the evidence is conflicting. Newberry v. Bohn-Newberry, 146 S.W.3d 233, 235 (Tex. App.- Houston
[14th Dist.] 2004, no pet.).
The trial court held a hearing on appellee's motions. Helen Mayfield, appellant's attorney, testified that,
in appellant's motion for new trial, she and appellant accused the trial court of “expert shopping to obtain
the opinion that he wishes," Aconducting business in violation of the bankruptcy stay," and designating
unqualified experts and refusing to permit the qualifications of the expert to be challenged. They further
accused Robert Thomas, the amicus attorney, of taking the children out of reach of the subpoena after
they were served. Thomas testified that when the subpoenas were served, the children were away at
summer camp outside of the reach of the subpoenas. Thomas testified that he did not take the children
out of reach of the subpoenas.
At the conclusion of the testimony, the trial court found good cause to assess sanctions, “as a result of
numerous allegations contained within Christopher Joseph McCloskey's Motion for New Trial which
Helen Tyne Mayfield and Christopher Joseph McCloskey knew to be groundless and false, and which
were groundless and brought in bad faith, and which Helen Tyne Mayfield and Christopher Joseph
McCloskey knew lacked evidentiary support[.]" We find the evidence at the hearing is sufficient to
support the trial court's assessment of sanctions. Appellant's fifteenth, sixteenth, and seventeenth
issues are overruled.
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 Amay 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 (Vernon 2005).
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.
/s/ Adele Hedges
Judgment rendered and Memorandum Opinion filed September 9, 2008.
Panel consists of Chief Justice Hedges and Justices Boyce, and Price.*
Senior Justice Frank C. Price sitting by assignment.