McCloskey v. McCloskey (Tex.App.- Houston [14th Dist.] Sep. 9, 2008)(Hedges)

(
attorney's fees incurred in SAPCR litigation not child support, scope of mandate remand, multiple appeals)
AFFIRMED: 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

M E M O R A N D U M   O P I N I O N

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 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.) (mem. 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.

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 does not characterize the attorney's fees as child support.  The
trial court found that the attorney's fees and costs were “necessary for solely the determination of
conservatorship of and child support for the children[,]" but did not characterize the fees as child
support.  The trial court did not err in finding that the attorney's fees had been incurred in the
determination of child support.  Therefore, the attorney's fees awarded in the decree may not be
enforced as child support, but by any means available for the enforcement of a judgment for debt.  
See Tex. Fam. Code Ann. § 106.002 (Vernon 2005).  Appellant's first issue is overruled.

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 affirmed.

/s/      Adele Hedges

Chief Justice


Judgment rendered and Memorandum Opinion filed September 9, 2008.

Panel consists of Chief Justice Hedges and Justices Boyce and Price.*

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Senior Justice Frank C. Price sitting by assignment.