Interim Attorneys Fees In Divorce Cases
Texas Family Code Authorizes A Party To Seek Interim Attorney’s Fees
The Family Code provides no guidance as to the amount of attorney's fees that may be awarded on an interim basis; however, such Guidance could be found in case law: Texas Family Law Code § 6.502. Temporary Injunction and Other Temporary Orders states the following:
”(a) While a suit for dissolution of a marriage is pending and on the motion of a party or on the court's own motion after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable and including an order directed to one or both parties:
(1) requiring a sworn inventory and appraisement of the real and personal property owned or claimed by the parties and specifying the form, manner, and substance of the inventory and appraisal and list of debts and liabilities;
(2) requiring payments to be made for the support of either spouse;
(3) requiring the production of books, papers, documents, and tangible things by a party;
(4) ordering payment of reasonable attorney's fees and expenses;
(5) appointing a receiver for the preservation and protection of the property of the parties;
(6) awarding one spouse exclusive occupancy of the residence during the pendency of the case;
(7) prohibiting the parties, or either party, from spending funds beyond an amount the court determines to be for reasonable and necessary living expenses;
(8) awarding one spouse exclusive control of a party's usual business or occupation; or
(9) prohibiting an act described by Section 6.501(a)."
Court Has Broad Discretion To Award Interim Attorneys Fees In Divorce Cases
It is not disputed that the Court has broad, though not unlimited, discretion in making temporary orders for support and attorney fees during the course of divorce proceedings. The trial court's order will not be disturbed absent an abuse of that discretion. See Villasenor v. Villasenor, 911 S.W.2d 411, 420 (Tex.App.-San Antonio 1995, no writ); Florence v. Florence, 388 S.W.2d 220, 224 (Tex.Civ.App.-Tyler 1965, writ dism'd w.o.j.); Allen v. Allen, 366 S.W.2d 650, 651 (Tex.Civ.App.-Amarillo 1963, no writ). Specifically, temporary support and interim attorney fees pending divorce has for its purpose the maintenance of the family until the final decree. It is not a property right, but is to be determined by the consideration of the needs of the applicant. See Herschberg v. Herschberg, 994 S.W.2d 273 (Tex. App.--Corpus Christi 1999, no pet.); Russell v. Russell, 79 S.W.2d 639, 640 (Tex.Civ.App.-Fort Worth 1934, writ dism'd w.o.j.). Therefore, such temporary support should be awarded based on considerations of both i) the degree to which the applicant is destitute of means to pay for his or her necessities during the pendency of the suit, and ii) the ability of the requested spouse to pay. Herschberg, Id; Russell v. Russell, 79 S.W.2d 639, 640 (Tex.Civ.App.-Fort Worth 1934, writ dism'd)). The earliest authority on the subject states that “where the wife has a separate income adequate to her maintenance, the husband is not liable for [temporary support].” Wright v. Wright, 6 Tex. 29, 32-33 (Tex.1851).
In Herschberg, Id., Mrs. Herschberg testified at the hearing on temporary orders that she presently earned $1,000 a month as a sales clerk, and that the bankruptcy court had also ordered Julius to make payments of $5,000 per month to her. Mrs. Herschberg swore to her monthly expenses that totaled around $5,090. Mrs. Herschberg asked the trial court to order an increase in the amount of support to $8,500 per month. She offered no evidence that she needed this increase, aside from the disparity between her standard of living and the standard of living that the other party allegedly enjoyed while the divorce action has been pending. Only “necessities,” not standard of living, aid in determining what reasonable support is.
Because temporary orders only estimate the actual attorney's fees and costs, the trial court has authority to order the payment of such fees as long as there is a credible showing of the applicant's need of fees in the amount awarded and the opponent's ability to pay that amount. However, the court may not make the opposing party destitute in order to pay the applicant's support and fees. Russell, Id.
Contempt of Court Not Available For Interim Attorneys Fees
Save and expect fees for child support and certain other fees where contempt is expressly provided for by law, attorney’s fees may not be collected through contempt proceedings. Vernon's Ann.Texas Const. Art. 1, § 18 provides that “No person shall ever be imprisoned for debt.” The following are a list of cases supporting this proposition:
“In re Moers, 104 S.W.3d at 612 (holding attorney's fees incurred in modifying child support obligation not enforceable by contempt); Rogers, 633 S.W.2d at 671 (citing Herring v. Houston Nat'l Exch. Bank, 113 Tex. 337, 255 S.W. 1097, 1104 (1923)) (holding attorney's fees incurred for enforcing child custody order not enforceable by contempt); see also Ex parte Dolenz, 893 S.W.2d 677, 681 (Tex.App.- Dallas 1995, orig. proceeding) (holding recovery of discovery costs not permitted as "debt"); Ex parte Rosser, 899 S.W.2d 382, 386 (Tex.App.- Houston [14th Dist.] 1995, orig. proceeding) (holding order for attorney's fees and costs incurred in enforcing visitation not enforceable by contempt); Hightower, 877 S.W.2d at 20-21 (holding attorney ad litem fees incurred to modify visitation not enforceable by contempt); Roosth v. Daggett, 869 S.W.2d 634, 637 (Tex.App.-Houston [14th Dist.] 1994, no writ) (holding attorney's fees awarded in divorce judgment creating, rather than enforcing, child support obligation a "debt" unenforceable by contempt); Ex parte Payne, 598 S.W.2d 312, 314 (Tex.Civ.App.-Texarkana 1980, orig. proceeding) (holding contempt order void where it was unclear whether judgment was for attorney's fees attributable to enforcement of child support or visitation); Ex parte Myrick, 474 S.W.2d 767, 772 (Tex.Civ.App.-Houston [1st Dist.] 1971, orig. proceeding) (holding contempt order void that was entered to force relator to create trust for children and to pay attorney's fees in connection with enforcing that order).” See In re Bielefeld, 143 S.W. 3d 924 (Tex.App.-Fort Worth, 2004)
The mere award of attorney’s fees is synonymous with the award of a debt, and therefore contempt enforcement for non-payment is barred by the Texas Constitution. See Vernon's Ann.Texas Const. Art. 1, § 18
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