law-child support & attorney's fees | contempt for nonpayment of child support | enforcement by contempt

We review a trial court's order setting child support under the same abuse of discretion standard as applied
to the trial court's property division. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990);

Generally, to determine an obligor's child support liability under the Family Code guidelines, the trial court
calculates the obligor's net resources. See TEX. FAM. CODE § 154.062 (setting out elements that constitute
net resources). In the absence of evidence of net resources, the trial court presumes that the obligor earns
the federal minimum wage for a forty-hour week. Id. § 154.068.

ATTORNEY'S FEES IN CONNECTION WITH CHILD SUPPORT ACTION

We review an award of attorney's fees in the nature of child support under an abuse of discretion standard.
See Duruji v. Duruji, No. 14-05-01185-CV, 2007 WL 582282, at *8 (Tex. App.-Houston [14th Dist.] Feb. 27,
2007, no pet.) (mem. op.); Hardin v. Hardin, 161 S.W.3d 14, 24-25 (Tex. App.-Houston [14th Dist.] 2004),
judgm't vacated, op. not withdrawn, No. 14-03-00342-CV, 2005 WL 310076 (Tex. App.-Houston [14th Dist.]
Feb. 10, 2005, no pet.) (mem. op.). The general test for abuse of discretion is whether the trial court acted
(1) without reference to any guiding rules and principles or (2) arbitrarily and unreasonably. See Swaab v.
Swaab, 282 S.W.3d 519, 524 (Tex. App.-Houston [14th Dist.] 2008, pet. dism'd w.o.j.); Baltzer v. Medina, 240
S.W.3d 469, 475 (Tex. App.-Houston [14th Dist.] 2007, no pet.).

Trial courts have broad discretion to award attorney's fees and expenses in suits affecting the parent-child
relationship. See TEX. FAM. CODE ANN. § 106.002(a) (Vernon 2008); Lenz v. Lenz, 79 S.W.3d 10, 21 (Tex.
2002); London v. London, 192 S.W.3d 6, 19 (Tex. App.-Houston [14th Dist.] 2005, pet. denied). It is
well-settled that attorney's fees incurred in establishing the best interests of the child while prosecuting or
defending a suit involving the parent-child relationship may be awarded as "necessaries" to the child, even if
the fees are incurred by the unsuccessful party. See London, 192 S.W.3d at 19; Hardin, 161 S.W.3d at 25;
London v. London, 94 S.W.3d 139, 146 (Tex. App.-Houston [14th Dist.] 2002, no pet.); Roosth v. Roosth,
889 S.W.2d 445, 455 (Tex. App.-Houston [14th Dist.] 1994, writ denied); see also In re A.J.L., 108 S.W.3d
414, 422 (Tex. App.-Fort Worth 2003, pet. denied). The rationale for this is that both parents are responsible
for providing for the child's needs. Hardin, 161 S.W.3d at 25; In re A.J.L., 108 S.W.3d at 422. Attorney's fees
may be construed as "necessaries" to the child if the attorney's services are related to the needs of the child.
See Hardin, 161 S.W.3d at 25; Roosth, 889 S.W.2d at 456.

It is not always easy to determine which party is the successful or prevailing party in family law cases. See Di
Sibio v. Parish, No. 2-06-267-CV, 2008 WL 110512, at *8 (Tex. App.-Fort Worth Jan. 10, 2008, no pet.)
(mem. op.) (per curiam); In re M.A.N.M., 231 S.W.3d 562, 566 (Tex. App.-Dallas 2007, no pet.). With respect
to attorney's fees, the successful or prevailing party is typically the party vindicated by the judgment, or the
party who either successfully prosecutes the action or defends against it, thus prevailing on the main issue.
See Di Sibio, 2008 WL 110512, at *8; Indian Beach Prop. Owners' Ass'n v. Linden, 222 S.W.3d 682, 696-97
(Tex. App.-Houston [1st Dist.] 2007, no pet.).

Although trial courts have broad discretion in awarding attorney's fees under the Texas Family Code, this
discretion is not absolute, and there must be a finding of good cause before an unsuccessful party may
recover attorney's fees. See London, 192 S.W.3d at 19; Marichal v. Marichal, 768 S.W.2d 383, 385 (Tex.
App.-Houston [14th Dist.] 1989, writ denied) (op. on reh'g).

Roosth v. Daggett, 869 S.W.2d 634, 637 (Tex. App.-- Houston [14th Dist.] 1994, no writ) (holding that
attorney's fees incurred in divorce proceeding creating child support obligation and specifically designated
as costs were a debt and were not enforceable through contempt as child support).

RECENT TEXAS SUPREME COURT DECISIONS IN CHILD SUPPORT MATTERS  


In re Zandi, No. 07-0919  (Tex. Dec. 19, 2008)(Suppl. Op. on motion for rehearing)(child support contempt,
right to notice re: intent to revoke suspension of commitment)
IN RE REZA ZANDI; from Denton County; 2nd district (02-07-00348-CV, ___ SW3d ___, 10-18-07)
Supplemental Opinion on Rehearing
In Re Zandi, No. 07­0919 (Tex. May 30, 2008)(per curiam) (family law, child support contempt, habeas
corpus granted, due process violated, insufficient notice of charges)

In re OAG, No. 08-0165 (Tex. 2008) (per curiam)(mandamus) (TRO against Office of Texas Attorney
General in dispute over child support collection set aside by mandamus as void due to procedural
deficiency).




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