Dallas Divorce Lawyer Blog

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Many clients ask if we can sue for attorney’s fees as part of their family law case. This is understandable–lawsuits can be very expensive and often times our clients have to hire a lawyer only because the other party violated a court order. This is understandably frustrating to our client. Therefore, most of our clients reason that if they win their lawsuit, and it’s the other party’s fault they had to pay for a lawyer in the first place, they should get the losing party to pay their attorney’s fees. The “loser pays” idea sounds like something that should exist, but it’s not the law in Texas. Winning a lawsuit that is the fault of the other party does not mean you can automatically get an award of attorney’s fees. I tell clients to focus on if the law allows for, and if the judge will grant attorney’s fees.

This was the question posed to the Dallas Court of Appeals in Shilling v. Gough, an enforcement action for a violation of an injunction that was originally ordered in the final decree of divorce. There, the husband argued that the wife had violated an injunction in the divorce decree that prevented her from disclosing certain information regarding the husband’s medical history. The trial court reviewed the injunction and a trial was held in which the court ruled against the Appellant (husband) and awarded attorney’s fees to the Appellee (wife). The husband was unhappy about the attorney’s fees award (not only was it wrong, it was a whopping $96,001.65) and so he appealed. The Dallas Court of Appeals held that the award of attorney’s fees was an abuse of discretion and reversed the trial court’s award.

The reality is it is not sufficient to make a basic argument of “they do not have a basis for this and so therefore I should get attorney’s fees if I win”. In fact, the Dallas Court of Appeals, looking to guidance from the Texas Supreme Court in Tony Gullo Motors 1, L.P. v. Chapa, held that the award of attorney’s fees is not an inherent authority that a trial court possesses. Meaning, the judge cannot do it just because they think it sounds right or if they feel like it. This is because the Texas Supreme Court also held in Travelers Indem. Co. of Conn. v. Mayfield that the authority of a trial court to award attorney’s fees must come from a specific statute. Thus, if a trial court is going to award attorney’s fees, it must have statutory authority to do so.

Another key point is that this was an enforcement of a final decree of divorce. So, one would argue that you just look to Chapter 9 of the Texas Family Code for the enforcement of a final decree and derive the authority from that statue to award attorney’s fees. However, as the Dallas Court of Appeals adjudicated here, that is not the case. In fact, the trial court tried to say that it awarded attorney’s fees to the wife based upon Texas Family Code Section 9.014 because it authorizes courts to award attorney’s fees in a suit to enforce a decree. However, The Dallas Court of Appeals held that specifically, this statute deals with enforcement of the final decree with respect to the property division. This case involved an injunction. Therefore, the trial court could not use this section for authority on the attorney’s fees award.

The other basis the trial court claimed was that it awarded attorney’s fees as a sanction on the husband for filing the suit. The Dallas Court of Appeals struck down this argument in examining Chapter 10 of the Texas Civil Practice & Remedies Code and Rule 13 of Texas Rules of Civil Procedure. There are certain statutory prerequisites that the court and the pleading party must meet before the court can sanction the other party. Here, none of the prerequisites were met. Therefore, an award of attorney’s fees based upon the sanction argument, at the Dallas Court of Appeals put it, “can have a significant chilling effect on the litigation process.”

The moral of the story is if you want to fight for attorney’s fees, you better have a statutory basis for your argument and spell it out for the court. Otherwise, if the other side knows about this Dallas Court of Appeals opinion, you will probably lose.

If you are involved in a divorce case and you no longer want to fight on the issues, you and your spouse can enter into an agreement. The question is on whether you take the mediation or informal route. Thus, you contact your attorney at Guest & Gray, P.C. in Forney, Texas to discuss your options in more detail.

Mediation can be more expensive. This is because mediation consists of you, the other party and your attorneys and a mediator that both parties must pay their fee. The fees range depending upon what mediator you choose or that is ordered by the court. With mediation, you and your attorney sit in one room and the other party and their attorney sit in another room and the mediator goes back and forth as a neutral problem solver and takes offers back and forth trying to promote a settlement. If it is a contested case and the parties cannot informally settle the case, most courts require mediation before a final hearing can be held.

However, if you and the other party and your attorneys feel that you can settle this matter absent the necessity of having a neutral third party present to relay offers and keep the peace then informal settlement may be the best option for you. This can take several forms such as the attorneys relaying offers back and forth without anyone getting together or the attorneys can arrange where the parties and attorneys meet to discuss the matter and finalize.

If an informal settlement is successful, it must be in writing. This can either be in the form of a Rule 11 Agreement or it can be in the form of an Agreement Incident to Divorce as outlined in Texas Family Code Section 7.006. Much like a Rule 11 Agreement, until an order or judgment is rendered that encompasses the Agreement Incident to Divorce, subsection (a) states that the Agreement Incident to Divorce “can be revised or repudiated before the divorce is rendered unless the agreement is binding under another rule of law.” Thus, this also suggests like a Rule 11 Agreement, an Agreement Incident to Divorce can be enforceable as a contract. Should the other party back out, to enforce the Agreement Incident to Divorce or informal settlement agreement your attorney must file a motion to enforce and sue the other party for breach of contract.

In some cases, parties enter into an agreement rather than fight over the issues and it is often reflected in a Rule 11 Agreement. In order to be enforceable, the Rule 11 Agreement must either be (1) in writing, signed by all parties and their attorneys, and filed with the Court, OR (2) the agreement must be entered into the open record of the court.

Many parties and their attorneys think that as long as this happens, then the other side cannot back out of the agreement. However, this is an unfortunate misconception. If a judgment has not been entered reflecting the agreement and it has not been made an order of the Court, then the other party can try and back out of the agreement. Thus, you are concerned because you want to keep the agreement that you entered into. How do you do this? Contact your attorney at Guest and Gray, P.C. in Forney, Texas and they can walk you through the steps to enforce your Rule 11 Agreement.

Your attorney will tell you that you must file a motion to enforce and sue the other party for breach of contract. The key to remember is that a judgment cannot be entered reflecting the settlement agreement once the other party has repudiated. That is, in Stein v. Stein the 1st District Houston Court of Appeals held that if a party backs out of the agreement before a judgment is entered, then any judgment rendered after that would be void and invalid. Thus, when you seek a motion for enforcement and you are seeking to enforce the agreement as a contract, you are asking the court to enforce the actual agreement and not enter a judgment reflecting it. Once the court upholds the agreement and enforces it, then you can seek to get the court to sign orders reflecting that agreement. This is also supported by the opinion of the Fort Worth Court of Appeals in CherCo Prop., Inc. v. Law, Snakard & Gambill, P.C. There, the Court held that even though the Plaintiffs had withdrawn their consent to the agreement and this did render any agreed judgment in the future void, it had no effect on the Defendant’s motion to enforce the agreement as a contract.

One important distinction is if your agreement is a Rule 11 Agreement under Texas Family Code Section 153.007 (dealing with child conservatorship and possession), it is not enforceable as a contract. Also, unlike other Rule 11 Agreements where courts cannot alter, modify or add to, if a court feels as though an agreement regarding child conservatorship and possession is not in the best interest of the child, the court can advise the parties to submit a revised agreement or render different orders from the agreement.

As you can see, enforcing a Rule 11 Agreement can be a difficult undertaking. Therefore, it is much easier to have the court render a judgment approving the Rule 11 Agreement and its terms as the orders rather than leave it to question at a later date.

You are at a hearing of your family law case (whether it be a divorce or custody case). This could be a temporary orders hearing (setting the status quo of the case) or another interim hearing or maybe it is the final hearing. Despite what stage of the case you might be in, most judges encourage the parties and their attorneys to speak before an actual hearing is held. This is because most judges encourage settlement and rightfully so for many reasons.

Only you and the other party know your case the best and this is because it is your life. Thus, if anyone should decide what should happen in the case, it should be the parties. Also, agreements are also in the interest of judicial economy. Meaning, the court’s docket is freed up for those cases that are truly contentious and for those issues that cannot be settled without the guidance of a judge. As well, the parties save money with agreements rather than having knockdown, drag out hearings. Unfortunately, given all of the positive factors some parties are not able to reach agreements.

However, you are among the few and you are able to reach an agreement. On that day, you do not have any specific orders for the judge to sign. Rather, what typically happens is that you and the other party enter into a Rule 11 Agreement. This happens one of two ways–either your attorney or their attorney writes the agreement in full down on a piece of notebook paper and the parties and their attorneys sign. Or, the agreement is written down and both parties testify and the agreement is entered into the open record of the court with the court reporter transcribing. Many people think that the notebook paper or oral recitation of agreement is not very reassuring because it is not in a fancy, typed-up order with legal jargon. However, what most people do not understand is that you must do one or the other in order for the Rule 11 to be enforceable. That is, if you merely had an oral agreement and everyone left the courthouse, if at a later date the other side claims that they did not agree to what you are now claiming the agreement was on the court date, there is nothing you or your attorney can do about it.

In fact, Rule 11 of the Texas Rules of Civil Procedure states that “no agreement between attorneys or parties touching any suit is enforceable unless it is in writing, signed, and filed with the papers as part of the record, or is made in open court and entered of record.” Thus, you must either file the signed notebook paper encompassing all of the terms of your agreement or have your attorney read it into the record and commit both parties that this is in fact your agreement.

With respect to the terms of the agreement, you must include all material terms and the agreement must be clear and unambiguous. If you cannot agree upon certain terms or if any terms are left out, they are considered to still be contentious and will not be included by default. Thus, be sure that you and your attorney go over all of your goals beforehand on what you want to accomplish at the hearing and be sure that any document you sign or any agreement that you testify is in fact your agreement contains all of the terms that you want to cover. If all of the terms of the agreement are not contained in the agreement, then the Texarkana Court of Appeals in In Re Hallman held that the trial court has a duty to resolve those remaining issues.

If at any time you feel that you are no longer satisfied with the Rule 11 Agreement and its terms, you must notify your attorney and revoke your agreement before a judgment reflecting the Rule 11 is entered. That is, if your agreement is entered on the record and the Court approves the agreement and renders that the orders in the case (and enters a judgment reflecting that), then you will no longer be able to contest the agreement. In fact, the Fort Worth Court of Appeals in Clanin v. Clanin held that if a party is attempting to repudiate only after a judgment had been rendered, the agreement will be upheld and the party will not be permitted to contest it.

Contact your attorney at Guest & Gray, P.C. in Forney for further information on Rule 11 Agreements.