McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Apr. 2, 2009)(Subst opinion by
Hedges) (
attorney's fees in SAPCR divorce improperly characterized as child support)
(
SAPCR divorce attorneys fees cannot be ordered as additional child support enforceable by
contempt, subsequent appeal, scope of remand)
AFFIRMED AS MODIFIED: Opinion by
Chief Justice Hedges   
Before Price, Chief Justice Hedges, Justice Boyce
14-06-00470-CV Christopher Joseph McCloskey v. Anne Miriam McCloskey
Appeal from 387th District Court of Fort Bend County
Trial Court Judge: ROBERT J. KERN  

Motion for En Banc Reconsideration Denied as Moot; Memorandum Opinion of September 9, 2008,
Withdrawn.  Affirmed as Modified and Substitute Memorandum Opinion filed April 2, 2009.

S U B S T I T U T E   M E M O R A N D U M   O P I N I O N

Appellant’s motion for en banc reconsideration is denied as moot.  The opinion issued
September 9, 2008 is withdrawn and the following opinion is substituted therefor.  Appellant,
Christopher Joseph McCloskey, appeals from an order issued following  remand.  In four
issues, appellant challenges (1) the sufficiency of the evidence to support the trial court’s
order, (2) the trial court’s jurisdiction and impartiality, and (3) the trial court’s division of the
marital estate.

We modify the judgment of the trial court and, as modified, affirm.

In 1998, Anne McCloskey began divorce proceedings against Chris McCloskey and Chris
counter-petitioned for divorce.  A jury heard the issues relating to conservatorship and
primary residence of the McCloskey’s two children.  The remaining issues relating to the
children and the division of property were tried to the trial court.  The trial court signed a
divorce decree on September 21, 2000, from which appellant appealed.  This court issued
an opinion in appellant’s appeal on June 12, 2003.  McCloskey v. McCloskey, No. 14-00-
01300-CV; 14-00-01307-CV 2003 WL 21354709 (Tex. App.- Houston [14th Dist.] 2003, no
pet.) (memo. op.).  In that opinion, the court remanded the issue of attorney’s fees as follows:

In issue ten, Chris raises two complaints regarding the manner in which the trial court
assessed and awarded trial and appellate attorney fees against him.  First, Chris complains
that the trial court classified its award of $50,398.00 in attorney’s fees as "child support and
property division,” and argues that the trial court’s failure to segregate the portion of the
award representing attorney’s fees incurred in the property division and the portion
representing fees incurred in connection with child support provides Anne the benefit of the
enhanced remedies for enforcement of child support judgments for the entire award.  We
agree.  Because Anne is willing to rectify the matter by classifying the fees as part of the
division of property, we sustain this part of Chris’s issue and remand to the trial court to
correct the judgment on this issue.

Three years later, on March 13, 2006, the trial court held a hearing on remand.  After the
hearing, the court modified the original decree with regard to attorney’s fees as follows:

The Court finds that as of January 12, 2001, Michael A. Craig, Petitioner’s attorney, incurred
$50,398.00 as attorney’s fees and costs of court, which were necessary for solely the
determination of conservatorship of and child support for the children, [D.C.M.] and [L.G.M.].  
The Court further finds that the attorney’s fees were reasonable, necessary and customary
charges in Fort Bend County, Texas, for an attorney of Michael A. Craig’s experience and
capabilities.

The Court finds that as of January 12, 2001, Michael A. Craig, Petitioner’s attorney, incurred
an additional $32,500.00 as attorney’s fees and costs of court, which were necessary solely
for the preservation of the parties’ community estate.  The Court further finds that the
attorney’s fees were reasonable, necessary and customary charges in Fort Bend County,
Texas, for an attorney of Michael A. Craig’s experience and capabilities.

40.3 It is ORDERED, as additional child support, that Michael A. Craig, for the benefit of
Anne Miriam McCloskey, is awarded a judgment of $50,398.00 against Christopher Joseph
McCloskey for attorney’s fees and expenses, with interest at 10% per year, compounded
annually, from September 1, 2000 until paid, for which let execution issue.

Appellant has now filed an appeal of the trial court’s modified order.  In his first issue, he
contends that the trial court erred in awarding attorney’s fees as child support in the original
divorce action because the Family Code permits attorney’s fees to be assessed as child
support only in an action filed to enforce child support, not in a divorce proceeding in which
child support is determined.  See Tex. Fam. Code Ann. ' 157.167 (Vernon 2005).

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, appellate courts distinguish between fees awarded in the original divorce
action and 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).

The trial court’s order in this case characterized $50,398.00 in attorney’s fees "as additional
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.).  Appellant’s first issue is sustained and
the judgment is modified to delete the characterization of attorney’s fees as child support.

Appellant brings three other issues not related to this court’s remand.  Because this court’s
remand was limited to the characterization of attorney’s fees, appellant’s issues regarding
characterization of property, bias of the trial judge, and amount of attorney’s fees cannot be
considered in this appeal.  See Hudson v. Wakefield, 711 S.W.2d 628, 630 (Tex. 1986)
(when the appellate court limits remand to a particular issue, the trial court is restricted to
determination of that issue).  The order from which appellant appeals addressed only the
attorney’s fees.  The trial court did not consider the other issues raised by appellant.  
Accordingly, appellant’s remaining issues are overruled.

The judgment of the trial court is modified to delete any reference to the characterization of
attorney’s fees as "additional child support.”  In all other respects, the judgment of the trial
court is affirmed.

/s/      Adele Hedges

Chief Justice

Panel consists of Chief Justice Hedges and Justices Boyce and Price.*
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*  Senior Justice Frank C. Price sitting by assignment.