In re Moore

Dallas Court of Appeals, No. 05-14-01173-CV (January 7, 2016)

Justices Lang-Miers (Opinion), Brown, and Schenck

In this SAPCR case, Father appealed the trial court’s order modifying child support and awarding retroactive child support. Father also challenged by mandamus an award of conditional appellate attorney’s fees. The Dallas Court of Appeals consolidated the two matters and rejected both challenges.

The trial court found Mother had met her burden to prove a substantial and material change of circumstances, justifying a modification of child support, as her income had steadily decreased since the divorce while Father’s had steadily increased. This was true even though Mother’s decrease in income was the product of a fluctuating bonus arrangement that had existed, and arguably been taken into account, at the time of the divorce and original award.

Pursuant to Texas Family Code § 102.009, the trial court also awarded Mother conditional appellate fees of $52,500, subject to possible remittiturs of up to $50,000 if various steps on appeal did not occur (e.g., no oral argument). Father attempted to challenge the fee award by mandamus, but the Court of Appeals held mandamus was not the appropriate vehicle for attacking the attorney’s fees award in a temporary order pending appeal. Because the fee award was entered after final judgment, it was not an interlocutory temporary order, the appeal of which is prohibited by Texas Family Code § 102.009. The Court therefore found it had authority to review the temporary order as part of the appeal, and mandamus therefore was not necessary. Father argued that the testimony of Mother’s attorney as to his general knowledge of the work necessary for the appeal and a summary exhibit of the work and fees were not sufficient to support the fee award. The appeals court disagreed, noting that the summary exhibit was introduced without objection, and further observing that, “[u]nder the traditional, non-lodestar method of proving up the reasonableness of attorney’s fees,” specific testimony as to the number of hours worked or hourly rate of the attorney is not required for a court to award fees. Instead, the presence or absence of such information goes to the weight of the evidence.