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CONVINCING THE COURT TO AWARD ATTORNEY’S FEES

DEAN RUCKER318th Family District Court

Midland County Courthouse200 West Wall Street, Suite 200

Midland, Texas 79701915.688.1144

MIKE GREGORYGregory & Conner, P.C.

303 North Carroll Boulevard, Suite 100Denton, Texas 76201

940.387.1600

28TH ANNUAL ADVANCED FAMILY LAW COURSEAugust 5-8, 2002

Dallas, Texas

CHAPTER 26

DEAN RUCKERFAMILY DISTRICT JUDGE

318th FAMILY DISTRICT COURT

200 West Wall, Suite 200Midland, Texas 79701

Telephone: 915/688-1144Facsimile: 915/688-1146

EDUCATION

Trinity University, San Antonio, Texas (B.S., Business Administration, 1977)St. Mary's University School Of Law, San Antonio, Texas (J.D. 1980)

PROFESSIONAL ACTIVITIES AND AFFILIATIONS

Presiding Judge, Seventh Administrative Judicial Region of Texas, 1998-Family District Judge, 318th Family District Court, Midland, Texas, 1988-Board Certified in Family Law, Texas Board of Legal Specialization (1988)The College of The State Bar of Texas (1999)Texas Judicial Council, 2001-Court Improvement Project Task Force on Foster Care, Texas Supreme Court, 1999-State Bar of Texas, Judicial SectionDirector, Judicial Section, State Bar of Texas 2000-2001State Bar of Texas, Family Law SectionJudicial Advisor, Family Law Council, State Bar of Texas 1997-1998; 1999-Texas Academy of Family Law SpecialistsMember, Texas Family Law Practice Manual Form Book Committee, Family Law Section of the State Bar of

Texas, 2000-Course Director, 25th Annual Marriage Dissolution Institute, Texas Bar CLE (2002)Program Coordinator, Associate Judges/Title IV-D Masters Seminar 2001, 27th Annual Advanced Family Law

Course, Texas Bar CLE (2001)Program Coordinator, Associate Judges/Title IV-D Masters Seminar 2001, 27th Annual Advanced Family Law

Course, Texas Bar CLE (2002)Midland County Bar Association

PROFESSIONAL PRESENTATIONS

Speaker, Common Evidence Problems In Property Cases , 14th Annual Marriage Dissolution Institute,State Bar of Texas Professional Development Program (1991)

Speaker, Persuading the Judge, 18th Annual Marriage Dissolution Institute, State Bar of TexasProfessional Development Program (1995)

Speaker, Judge's Jam Session, 21st Annual Advanced Family Law Course, State Bar of TexasProfessional Development Program (1995)

Faculty, Tenth Annual Trial Institute, Texas Academy of Family Law Specialists (1996)Speaker, A View From The Bench: Alimony, JMC, Relocation and Other Issues , 22nd Annual Advanced

Family Law Course, State Bar of Texas Professional Development Program (1996)Faculty, Relocation Hearing: A Live Demonstration, 22nd Annual Advanced Family Law Course, State Bar

of Texas Professional Development Program (1996)Speaker, Attorney Ad Litem and Guardian Ad Litem Practice, 22nd Annual Advanced Family Law Course,

State Bar of Texas Professional Development Program (1996)Speaker, Hidden Jewels and Pitfalls in the Standard Possession Order, College of Advanced Judicial

Studies, Texas Center for the Judiciary, Inc. (1997)Speaker, Hidden Jewels and Pitfalls in the Standard Possession Order, 20th Annual Marriage Dissolution

Institute, State Bar of Texas Professional Development Program (1997)Faculty, Judges Panel on Custody, Visitation, and Child Support, 23rd Annual Advanced Family Law

Course, State Bar of Texas Professional Development Program (1997)Faculty, Presentation of a Custody Case in a Temporary Hearing, 23rd Annual Advanced Family Law

Course, State Bar of Texas Professional Development Program (1997)

Faculty, Training for Associate Judges, 24th Annual Advanced Family Law Course, State Bar of TexasProfessional Development Program (1998)

Faculty, Impact of The New Rules of Discovery For Business, Personal Injury and Family Law Litigators,State Bar of Texas Professional Development Program (1999)

Faculty, The New Discovery Rules For Family Law Attorneys, State Bar of Texas ProfessionalDevelopment Program (1999)

Faculty, Contempt/Enforcement, 25th Annual Advanced Family Law Course, State Bar of TexasProfessional Development Program (1999)

Faculty, Title IV-D Masters’ Seminar, Office of Court Administration (1999)Faculty, Recovered Memory/False Memory: Valid or Voodoo?, State Bar of Texas Professional

Development Program (1999)Faculty, Jury Innovations, 26th Annual Advanced Family Law Course, State Bar of Texas Professional

Development Program (2000)Faculty, Valuation Problems in the 21st Century, 26th Annual Advanced Family Law Course, State Bar of

Texas Professional Development Program (2000)Faculty, Associate Judges Training Program, 26th Annual Advanced Family Law Course, State Bar of

Texas Professional Development Program (2000)Speaker, Responsibilities of a Regional Administrative Judge, Far West Texas County Judges and

Commissioners Annual Conference (2000)Speaker, The Parental Notification Statute, An Overview, Permian Basin Legal Secretaries Association

(2001)Speaker, Responsibilities of a Regional Administrative Judge, Assigned Judges Seminar, Office of Court

Administration (2001)Speaker, Updates in the Law: Family, 2001 College of Advanced Judicial Studies, Texas Center for the

Judiciary, Inc. (2001)Speaker, Convincing the Court to Award Attorneys Fees, 28th Annual Advanced Family Law Course,

Texas Bar CLE (2002)

LEGAL PUBLICATIONS

Common Evidence Problems In Property Cases , 14th Annual Marriage Dissolution Institute, State Bar ofTexas Professional Development Program (1991)

Hidden Jewels and Pitfalls in the Standard Possession Order, 20th Annual Marriage Dissolution Institute,State Bar of Texas Professional Development Program (1997)

Enforcement of Direct and Indirect Acts of Contempt , Contributing Author, 25th Annual Advanced FamilyLaw Course, State Bar of Texas Professional Development Program (1999)

Jury Innovations, Co-Author with John G. Hyde, 26th Annual Advanced Family Law Course, State Bar ofTexas Professional Development Program (2000)

Responsibilities of a Regional Administrative Judge, Far West Texas County Judges and CommissionersAnnual Conference (2000)

Convincing the Court to Award Attorneys Fees, Co-Author with Mike Gregory, 28th Annual AdvancedFamily Law Course, Texas Bar CLE (2002)

PROFESSIONAL HONORS

Clayton E. Evans Judge of the Year, Texas CASA, 1997

MIKE GREGORY Attorney at Law

303 N. Carroll Blvd, Ste. 100 Denton, TX 76201 Metro: 972/434-3828940/387-1600 e-mail: [email protected] Fax: 940/387-2173

EDUCATION: University of Texas at Austin, Finance Major, Business Honors Program, B.B.A., 1967University of Texas School of Law, Doctor of Jurisprudence, 1970

LICENSURE: Texas Supreme Court (1970) U.S. Supreme Court (1974)

CERTIFICATIONS: Board Certified in Family Law by Texas Board of Legal Specialization (1976)AV rated attorney by Martindale-Hubbell Law DirectoryCertified Matrimonial Arbitrator, American Academy of Matrimonial LawyersTrained Mediator, American Academy of Attorney-Mediators, Inc.

PROFESSIONAL AFFILIATIONS:

Past President of Texas Academy of Family Law Specialists, 1989-1990Fellow, American Academy of Matrimonial LawyersMember, Family Law Council, State Bar of Texas 1994-1999, 2000-Member, Form Book Revision Committee, Texas Family Law Practice Manual 1991-2002Historian, Texas Academy of Family Law Specialists, 1991-2001Past President of Denton County Bar Association, 1983-1984Past Director of Texas Academy of Family Law Specialists, 1984-1988 Past Director of North Texas Family Law Specialists Association, 1983-1986Member, Family Law Section, State Bar of Texas and American Bar AssociationMember, Denton County Family Law Association

CLE ACTIVITIES :

Interesting Family Law Cases: An Update - 2002 Marriage Dissolution InstituteDiscovering and Valuing Concealed Property 2002 U.T. Family Law on the Front Linesand Income (with William F. Neal) - Conference, GalvestonMultiple Purpose Drafting Modules - 2001 Advanced Family Law Drafting CourseEnforcement, Securing and Clarifying Property Division - 2001 Advanced Family Law CourseAttorneys’ Fees and Contracts - 2001 Family Law Seminar, Corpus ChristiDiscovery Tracking Systems - 2000 Ultimate Trial NotebookLaw Office Management - 2000 Advanced Family Law CourseAttorneys’ Fees and Contracts - 2000 Marriage Dissolution CourseCharacterization and Tracing - 1999 Family Law Practice Seminar, University

of Houston Law CenterDivision of a Privately Owned Business - 1999 Advanced Family Law Course(with Randall Wilhite)Characterization and Tracing - 1998 Advanced Family Law CourseCharacterization of Property - 1998 Family Law Practice Seminar

University of HoustonDealing Effectively with the Mental Health Experts(for You, against You, and Court-Appointed) (with Robert S. Hoffman) - 1997 Advanced Family Law CourseTrying a Custody Case on a Shoestring - 1997 Marriage Dissolution CourseCourse Director - 1995 Advanced Family Law Drafting Course

Course Director - 1993 7th Annual Trial Institute,Texas Academy of Family Law Specialists

QDROS - 1995 Advanced Family Law CourseAttorney's Fees: Negotiating the Fee, 1994 Family Law Practice Seminar,Fee Arrangements and Collecting Your Fee - University of Houston Law FoundationA Survey of Family Law Clients - 1994 Marriage Dissolution CourseOffice Practice & Procedure In 1994 and 1995 Family Law for the General Handling the Typical Family Law Case - Practitioner and Legal Assistant, South Texas

College of LawAttorney's Fees - Interim and Final - 1993 Advanced Family Law Course Exercise and Nutrition, Balanced Moderation for Total Well-Being - 1993 Advanced Family Law CourseAttorney's Fees in Family Law Cases - 1993 Family Law Practice Seminar,

University of Houston Law FoundationInteresting Cases - 1992 Marriage Dissolution CourseEnforcing Family Law Decrees - 1991, 1992, and 1994 General Practice Institute,

University of Houston Law CenterAttorneys' Fees and Ethics - 1989 Marriage Dissolution CourseMandamus and Prohibition - 1988 Texas Academy of Family Law Specialists

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Table of Contents

I. INTRODUCTION................................................................................................................................................................1

II. INTERIM ATTORNEY’S FEES .....................................................................................................................................1

A. LEGAL AUTHORITY............................................................................................................................................................. 11. Title 1: The Marriage Relationship, Chapter 6, Subchapter F. Temporary Orders..........................................12. Title 5: The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship, Chapter 105.Settings, Hearings, and Orders ............................................................................................................................................1

B. OVERVIEW ........................................................................................................................................................................... 1C. PLEADING FOR INTERIM FEES AND EXPENSES................................................................................................................ 1D. PROVING INTERIM FEES AND EXPENSES.......................................................................................................................... 1E. DEMONSTRATE YOUR CLIENT 'S INABILITY TO PAY YOUR ATTORNEYS FEES AND EXPENSES............................... 2F. DEMONSTRATE THE OTHER SPOUSE’S ABILITY TO PAY INTERIM ATTORNEY'S FEES AND EXPENSES.................. 3G. DEMONSTRATE THE SOURCES AND MANNER OF PAYMENT OF INTERIM FEES AND EXPENSES............................... 3H. OBTAINING INTERIM ATTORNEY'S FEES UNDER TITLE 5 ............................................................................................. 4I. FACTORS THAT JUDGES CONSIDER IN AWARDING INTERIM ATTORNEY'S FEES AND EXPENSES............................ 5J. ADDITIONAL CONSIDERATIONS........................................................................................................................................ 6K. DRAFTING CONSIDERATIONS IN THE PREPARATION OF AN ORDER FOR INTERIM FEES AND EXPENSES................ 7

1. Request that the Court Order the Other Party to Pay Interim Fees from Existing Specified Funds orAssets.........................................................................................................................................................................................72. Segregate Costs and Expenses of Discovery from Interim Attorney’s Fees.........................................................83. Request the Court Award Interim Attorney’s Fees as Temporary Child Support or Spousal Maintenance..8

III. ATTORNEY'S FEES AT THE CONCLUSION OF THE CASE.......................................................................9

A. LEGAL AUTHORITY............................................................................................................................................................. 91. Title 1: The Marriage Relationship...........................................................................................................................92. Title 5: The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship ....................10

B. PLEADING FOR ATTORNEY'S FEES .................................................................................................................................. 10C. PROVING ATTORNEY’S FEES ........................................................................................................................................... 10

1. Overview........................................................................................................................................................................102. Testimony Concerning Attorney’s Fees....................................................................................................................113. Show Your Client's Inability to Pay and The Opposing Party's Ability to Pay.................................................124. Show the Court How Attorney's Fees Can Be Paid...............................................................................................12

D. FACTORS TO BE CONSIDERED IN AWARDING ATTORNEY'S FEES AT THE CONCLUSION OF THE CASE ................ 121. Suits Under Title 1 .......................................................................................................................................................122. Suits Under Title 1 or Title 5 .....................................................................................................................................13

E. FACTORS THAT JUDGES CONSIDER IN AWARDING ATTORNEY’S FEES..................................................................... 13

IV. CONCLUSION................................................................................................................................................................14

APPENDICES:

ESTIMATED INTERIM ATTORNEY’S FEES AND EXPENSES…..……………………………………..………………..15

Convincing The Court To Award Attorneys Fees Chapter 26

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CONVINCING THE COURT TO AWARD ATTORNEYS FEES

I. INTRODUCTION

Other than economic contribution, perhaps there isno greater mystery to the practicing lawyer thanwhat it takes to persuade a court to award attorney’sfees. This article will focus on the manner in whichthe attorney representing the requesting party canplead and prove attorney's fees that may assist thetrial court in making an informed decision onattorney’s fees.

II. INTERIM ATTORNEY’S FEES

A. Legal Authority

1. Title 1: The Marriage Relationship,Chapter 6, Subchapter F. Temporary Orders

a. Texas Family Code, Section 6.502.Temporary Injunction and OtherTemporary Orders

(a) While a suit for dissolution of marriage ispending and on the motion of a party or on thecourt’s own motion after notice and hearing,the court may render an appropriate order,including the granting of a temporaryinjunction for the preservation of the propertyand protection of the parties as deemednecessary and equitable, and including an orderdirected to one or both parties:

…(4) ordering payment of reasonable

attorney's fees and expenses; …

2. Title 5: The Parent-Child Relationship andthe Suit Affecting the Parent-ChildRelationship, Chapter 105. Settings, Hearings,and Orders

a. Texas Family Code, Section 105.001

(a) In a suit, the court may make a temporaryorder, including the modification of a priortemporary order, for the safety and welfare ofthe child, including an order:

…(5) for payment of reasonable attorney's

fees and expenses.

B. Overview

To obtain interim attorney’s fees and expenses, youmust:

1. plead for interim attorney’s fees andexpenses;

2. prove the amount of and necessity for thefees for your services and relatedservices, sots and expenses;

3. demonstrate the reason that your clientdoes not have the ability to pay for them;

4. demonstrate the other spouse’s ability topay for them; and

5. demonstrate the sources of payment foryour fees and expenses.

C. Pleading for Interim Fees and Expenses

Without proper pleading, one will not be successfulin proving attorney’s fees over a properly lodgedobjection. It is well established that an attorneyseeking fees must affirmatively plead for relief. Ageneral prayer for relief is not sufficient to supportan award of attorney’s fees. Klaver v. Klaver, 764S.W.2d 401, 405 (Tex. App.-Ft. Worth, 1989, nowrit).

D. Proving Interim Fees and Expenses

The attorney representing the requesting party mustnot only plead for interim attorney's fees andexpenses, but also convince the trial court that theaward of interim fees is necessary to the prosecutionof the case and is the fair thing to do.

Presentation and proof of attorney's fees should bemade with both oral and documentary evidence tosubstantiate the claim. One should not simplytestify to an hourly rate and an estimate of thenumber of hours he or she anticipates will beexpended. One should be prepared to present adetailed explanation of the work already performedand expenses already paid, as well as the anticipatedwork to be performed and future expenses to bepaid.

Legal assistant fees are a compensable componentof attorney fees and are recoverable.

http://www.TexasBarCLE.com/CLE/PMCasemaker.asp?table=tx_caselaw&volume=764&edition=S.W.2d&page=401&id=75916_01



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Compensation for a legal assistant's work may beseparately assessed and included in the award ofattorney's fees if a legal assistant performs worktraditionally done by an attorney. Gill SavingsAssociation v. International Supply Co., 759S.W.2d 697, 702 (Tex. App.-Dallas 1988, writdenied).

The attorney should present the following:

1. Show tasks performed and legal servicesrendered and the time required for each byattorney and by legal assistant as of the timeof the temporary hearing. Offer your feecontract with your client into evidence as wellas a summary of your time records as of thedate of the temporary hearing.

2. Present a projection of the future work to beperformed prior to trial and at trial byattorney and legal assistant, with an estimateof the time required for each service to berendered. Present it in the form of a timelineso the court will understand your goal and themanner you seek to achieve that goal.

3. Explain the need to take the other spouse’sdeposition and provide an estimate of the timefor the preparation for the other spouse’sdeposition, for the attorney and the legalassistant, if appropriate.

4. Provide an estimate of the time required for theattorney and legal assistant, if appropriate, totake the other spouse’s deposition.

5. Provide an estimate of the time required for thelegal assistant to summarize the deposition andfor the attorney to read the summary.

6. Provide an estimate of the expense to pay thecourt reporter for the taking of the deposition.

7. If appraisers will be needed to appraise thevalue of the other spouse’s business, explainthe need for the appraisers and the estimatedcost of the appraisal.

8. If a certified public accountant will be neededto value a business, examine tax records, auditthe other spouse’s business records or traceseparate property, explain the need for theaccountant and provide the estimated expenseof the accountant. Consider calling thecertified public accountant as a witness so thatthe accountant can explain his/her fees and the

estimated time required to perform these tasks.

9. In making estimates of time required toperform legal services for various aspects ofthe case, give a range of times from a low to ahigh. For this purpose consider using anexhibit as set forth in Appendix "A", showingan estimate of the tasks that will be requiredand of the time needed to perform the tasks bythe attorney and legal assistant, as well as theanticipated costs and expenses.

10. When presenting your case to the judge oninterim attorney's fees, explain the need forpretrial discovery. Demonstrate that yourclient does not have the financial records inhis/her possession and does not haveknowledge of or familiarity with the otherspouse’s business.

11. If the facts warrant, show the uncooperativeattitude of the opposing party or opposingattorney. Perhaps the other spouse has made astatement to the client such as "I will make youwork for everything. Nothing will come easyfor you or your lawyer. Nothing will beproduced voluntarily." Perhaps the otherspouse’s attorney has made the same statementto you.

12. If the other spouse has perpetrated acts ofviolence or made threats of violence againstyour client, provide the court with evidenceto justify the time and effort required toobtain a protective order, temporaryrestraining order and temporary injunction.

13. If the other spouse has threatened to oractually hidden property, withdrawn moneyfrom accounts, canceled credit cards, lockedyour client out of the house, cut off theutilities, canceled health insurance orcanceled automobile insurance, provide thecourt with evidence to show the need for atemporary restraining order and temporaryinjunction to preserve the status quo ofproperty.

E. Demonstrate Your Client's Inability to PayYour Attorneys Fees and Expenses

Depending on the facts of your case, provideevidence to the court of the following:

1. Your client’s lack of income or low income,compared to the other spouse’s income.




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2. Your client’s lack of funds from whichattorney’s fees and expenses can be paid.

3. Your client’s lack of access to communityfunds.

4. Your client’s inability to obtain more funds.

5. That your client has paid you nothing to date orif your client has paid you some money, showthe amount of money that he/she has paid andthe fact that it is now exhausted.

6. The provision in your attorney/client feecontract that provides that if you are unable toobtain interim fees at the temporary hearing,you have a right to withdraw as your client’sattorney of record.

7. That your client’s monthly expenses far exceedhis/her monthly income.

8. That your client has not been allowed to writechecks and is not on the signature card for anychecking or savings account and that otherspouse simply gives your client a weekly cashallowance which he/she ceased providing priorto the hearing.

F. Demonstrate the Other Spouse’s Ability toPay Interim Attorney's Fees and Expenses

It is not enough to simply show your client’sinability to pay your attorneys fees. The attorney forthe requesting party now has the critically importanttask of demonstrating to the court that other spousehas the ability to pay. The attorney for therequesting party should subpoena and have the otherspouse bring with him/her to the temporary hearingthe following financial records:

1. Copy of the other spouse’s fee contract withhis/her attorney.

2. Records showing the amount paid by otherspouse to his/her attorney.

3. Check registers and statements for checkingand savings accounts.

4. Copy of recent financial statement filed withbank.

5. Bank records showing existing lines of credit,the amount used and the amount of credit

available.

6. Copies of credit card statements showing thecredit limit for charges and cash advances,amount used and amount available credit.

7. Copy of life insurance policies to determinethe amount of cash value in the policy thatcould be obtained either outright or by a loanagainst the policy.

8. Copy of the other spouse’s IRA, profit-sharingplan, retirement plan, Keogh plan, pensionplan, employee stock option plan, 401(k) plan,employee savings or other employee benefitplan, which may show an ability to borrowagainst the plan.

9. Copy of the other spouse’s brokerage recordsand stock portfolio records in order todetermine if there are stocks and bonds thatcould be sold.

10. Title documents to vehicles, boats, trailers,farm equipment, horses and livestock.

11. Copies of certificates of deposit.

12. Copies of the other spouse’s business andindividual tax returns.

13. Copies of pay stubs and other records showingthe other spouse’s monthly income from allsources.

14. List of contents of the other spouse’s safedeposit box, and a copy of ledger card showingname of person and date of each time the otherspouse’s safe deposit box was entered.

G. Demonstrate the Sources and Manner ofPayment of Interim Fees and Expenses

Demonstrate to the court the sources for paymentand the manner in which payment of interimattorney’s fees can be made. Suggested sources are:

1. From available cash as follows:

a) checking accountb) savings accountc) money market accountsd) cash on hand at home and in safe deposit

boxe) cash value of life insurancef) monthly income


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2. From cash made available by having the courtplace the other spouse on a budget. The courthas authority to prohibit a party from spendingfunds beyond an amount the court determinesto be for reasonable and necessary livingexpenses. Texas Family Code, Section6.502(a)(7).

3. Reducing any voluntary contributions made bythe other spouse to an employee savings,pension or retirement plan.

4. From the sale of liquid assets like stock, bonds,gold and silver.

5. From the sale of non-essential, non-exempt,lien-free property such as:

a) extra vehicleb) power boat, wave runners, sail boat, trailerc) motorcycled) firearms

6. From a cash advance on credit card.

7. From a loan secured against the following:

a) cash value of life insuranceb) IRA, profit-sharing plan, retirement plan,

Keogh plan, pension plan, employee stockoption plan, 401(k) plan, employee savingsor other employee benefit plan

c) certificate of depositd) home equity

8. From existing lines of credit or through anunsecured loan.

9. If the other spouse borrowed money on anunsecured note to pay his/her attorney, requestthat the court order the other spouse to borrowmoney on an unsecured note in an equalamount to pay your client’s attorney's fees.Alternatively, if the other spouse borrowedmoney to pay his/her attorney and still has theproceeds of the loan, order the other spouse topay one-half of the loan proceeds for yourclient’s attorneys fees and one-half to the otherspouse’s attorney.

10. Request that court order the creation of oneaccount, funded by the other spouse, fromwhich both attorneys are paid, subject to thecourt's approval. Each attorney would presentis statement for attorney's fees to the judge in

camera, without a hearing, for the judge todetermine the amount to be paid from the oneaccount. By presenting the statements forattorney's fees to the judge in camera, the twoattorneys would not be able to keep track ofeach other’s work.

11. Request that the court order the establishmentof two accounts, each funded by the otherspouse, one for husband and one for wife, withequal amounts deposited in each account.Essentially, this is a request for matchingfunds. For every dollar the other spouse paysto his/her attorney for attorney's fees andexpenses, the other spouse pays an equalamount for your client’s attorney’s fees.

12. Ask the court to order the establishment oftwo unequal accounts, both funded by theother spouse, a smaller account for the otherspouse and the larger account for your client.The account for your client is larger becauseof the other spouse’s knowledge andfamiliarity with his/her business and financialrecords, as well as the familiarity andknowledge of the other spouse’s attorney andcertified public accountant with the otherspouse’s business and financial records ascompared to the lack of knowledge andfamiliarity of with the other spouse’s businessand financial records by you, your client andyour client’s certified public accountant.

13. Request a provision in the temporary ordersthat will allow you to come back to the courtand ask for additional interim attorney's feesand expenses when the initial amounts orderedhave been depleted below a specified level.

14. If all else fails, try the temporary supportapproach. In the event there are no existingfunds for a present payment of interimattorney's fees, if there is no property to be soldor if the court will not order the sale of propertyfor the payment of interim attorney's fees, or ifthe court will not order the other spouse toborrow money or take a cash advance onhis/her credit card, but if the other spouse has alarge monthly income, ask the court to orderthe other spouse to pay your client a largemonthly sum in temporary support, from whichinterim attorney's fees can be paid.

H. Obtaining Interim Attorney's Fees UnderTitle 5

While statutorily permitted, obtaining an order


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for interim attorneys fees in a suit affecting theparent-child relationship under Title 5 that is notcoupled with a suit for dissolution of marriage underTitle 1 may be problematic.

Some family law experts believe that an order forinterim attorney’s fees is not permitted because thereis no community estate and to do so constitutes ataking of the other spouse’s separate estate. Short,J. Lindsey, Jr. and Joan F. Jenkins, Attorney FeePanel (Setting and Collecting Fees), p. 8, 25th

Annual Advanced Family Law Course, State BarProfessional Development Program (1999). It isalso argued that except for a Title I proceeding,there is no equivalent provision in the lawpermitting a party to fund his/her lawsuit withanother party’s financial resources during thependency of suit.

No attempt is made to discuss these arguments otherthan to point out that Title 5 authorizes interimattorneys fees, and the foregoing discussion shouldbe relevant to any action to obtain interim fees andexpenses in a suit filed exclusively under Title 5.

I. Factors that Judges Consider in AwardingInterim Attorney's Fees and Expenses

In 1993, Mike Gregory surveyed the Dallas areatrial judges and associate judges to determine thefactors those judges felt were important indetermining whether to award interim attorney’sfees. In 1999, J. Lindsey Short, Jr. and Joan F.Jenkins surveyed the Houston area judges. Theresults of these surveys are as relevant today as theywere when they were conducted. The factorsconsidered by judges and associate judges are asfollows:

1. Relative income of the parties.

2. Availability of money from which to payinterim attorney's fees.

3. One of the parties making the process harder,more difficult, time consuming and costly forthe other party.

4. The amount of attorney's fees expended byone party. The issue here is to attempt toprovide a level playing field.

5. The acts or threats of one party necessitatingthe need for protective orders, restrainingorders and injunctions and the enforcement ofsame.

6. Relative earning potential and education ofthe parties.

7. Sacrifices made by party "A" in order toenable party "B" to obtain greater educationand earning potential than party "A". Theclassic example is the wife quitting collegeand putting husband through college andmedical school.

8. Wasting of community assets by one party.

9. Guideline child support not adequate toprovide for the needs of party "A",compensate by ordering party "B" to payinterim attorney's fees to party "A".

10. Size of the community estate.

11. Type of funds available from which to payinterim attorney's fees. The more liquid thefunds, the greater likelihood of an order ofinterim attorney's fees. A court is more likelyto order payment of interim attorney's feesfrom cash than order property sold to payinterim attorney's fees. On the other hand, acourt will order property sold for the paymentof interim attorney's fees before the court willorder a party to borrow money or take a cashadvance for the payment of interim attorney'sfees.

12. If one party has a greater control of the assets,particularly if it is to the exclusion of theother party.

13. Financial needs of the children.

14. Actions of the parties. How contentious arethey? How much work is party "A" and hisattorney causing for party "B" and herattorney?

15. The relative experience and skill of theattorneys. Would not order the same amountof interim attorney's fees paid for aninexperienced lawyer as for a board certifiedfamily law specialist.

16. The requesting attorney’s reputation,reasonableness, integrity, and past history. Areasonable attorney asking for an appropriateamount of interim attorney's fees andexpenses will be treated differently than anunreasonable attorney, who is making a


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mountain out of a mole hill and asking forunreasonable amounts of attorney's feesrelative to the assets and matters involved.

17. The underlying reason for the request forinterim attorney's fees must be good, justifiedby fairness, and supported by facts.

18. Whether the non-requesting party has paid hisattorney's fees and the amount he has paid hisattorney.

19. Whether it appears there are real issues thatneed to be developed in the case.

20. What portion of community funds has beenspent by whom and on what as of the time ofthe temporary hearing.

21. Whether the requesting party simply wants a"free ride" or is the requesting party acceptingresponsibility, i.e., taking care of childrenand/or working, and/or going to school.

22. Will the award of interim attorney's feesprolong and add expense to what should be asimple divorce?

23. Can the family components still have survivalincome if interim attorney's fees are awarded?

24. Will the award of interim attorney's feesexacerbate hostility between parties?

25. Will there be sufficient liquid assets uponcompletion of the divorce for payment ofattorney's fees?

26. Will there be a need for appraisals, audits,tracing, depositions, psychologists,psychological evaluations and thus the needfor experts in those fields?

27. How much discovery might be required?

28. Are the attorney's fees and expensesrequested really necessary?

29. If the client has contracted to pay areasonable fee.

30. That the client is bringing the action in goodfaith.

31. The lack of ability of a client to pay attorney'sfees because of non-access to community

estate, insufficient or no separate propertyestate and inability to borrow money.

32. The time, skill and labor that will be required,as well as the novelty and difficulty of thequestions involved.

33. The time limitations that will be imposed bythe case.

34. What the attorney for the requesting party hasdone at the time of the temporary hearing andwhat will need to be done prior to finalhearing. On this note, judges simply are notimpressed by a statement of the number ofhours worked and anticipated, a quotation ofthe hourly fee and a multiplication. Judgeswant detailed, step by step explanation ofwhat needs to be done, should be done, andwhy. Judges also want to be shown how theattorney's fees and expenses can be paid, thesource of funds and means of payment.

Gregory, Mike, Attorney Fees-Interim and Final,pp. 7-9, 19th Annual Advanced Family LawCourse, State Bar of Texas ProfessionalDevelopment Program (1993); Short, J. Lindsey,Jr. and Joan F. Jenkins, supra pp. 7-8.

Some judges surveyed by Mr. Gregory stated theywould order a party to borrow money or take a cashadvance. Others said they would not order a partyto borrow money or take a cash advance to payinterim attorney's fees.

J. Additional Considerations

As a rule, judges are reluctant to make an expressdetermination whether an attorney’s interim feerequest is reasonable at the temporary hearing.However, if an attorney is from a large metropolitanarea and charges fees in excess of $175.00 to$200.00 per hour, the attorney should be prepared tomeet some resistance in smaller or ruralcommunities where the customary hourly rate ismuch less.

Depending on the judge, the attorney may have onlyone opportunity to obtain interim fees and expenses.A judge who was reluctant to award interim feesinitially may not be receptive to future attempts todip deeper into the wells of justice.

If the trial court has already made an award ofinterim fees and the client changes attorneys duringthe case, any subsequent attorney should be cautious


7

that the court might be unwilling to award additionalinterim fees having already made what the courtmay consider a fair award of interim fees.

Finally, if the judge continues to demonstrate areluctance to award interim fees and expenses evenafter a thorough presentation of evidence, you mightargue that adjustments can be made in the finalproperty division to compensate for any interimattorney's fees awarded at the temporary hearing.

A word to the wise. If you want to know yourjudge’s history concerning an award of interim feesand expenses, ask other attorneys who haveappeared before the judge regarding the judge’spractices. Since the judicial approach to interim feeawards is as varied as the judges themselves, itwould be best to know the judge’s practices beforegoing to court.

K. Drafting Considerations in the Preparationof an Order for Interim Fees and Expenses

1. Request that the Court Order the OtherParty to Pay Interim Fees from ExistingSpecified Funds or Assets

Although the case of Ex parte Preston, 347 S.W.2d938 (Tex. 1961) does not involve the issue ofinterim attorney's fees and predates the TexasFamily Code, Ex parte Preston does provide someguidelines where drafting can make a difference.After a hearing on March 2, 1961, the trial courtspecifically found that William Preston had the sumof $21,705.58 in his possession as a result of theproceeds from the sale of certain communityproperty and ordered Preston to pay said sum intothe registry of the court by March 9, 1961. WilliamPreston appeared at the hearing on March 9, 1961,but failed to produce the money or any part thereof.The trial court held him in contempt, but deferredpunishment until final hearing. An orderincorporated into the parties' decree of divorcerequired William to pay the sum of $10,000.00 tothe clerk of the court for the use and benefit of hiswife, as a condition of his release from custody fromthe Tarrant County Jail. William filed anapplication for writ of habeas corpus. The FortWorth Court of Appeals denied the writ of habeascorpus and held that William Preston was not beingimprisoned for nonpayment of a debt because thetrial court had specifically found that he had themoney in his possession when the trial court orderedthat he pay same to the court clerk.

The lesson to be learned from Ex parte Preston,

assuming your facts will permit same, is to include aspecific finding that there are existing funds in thepossession of the party ordered to pay same and thenorder the party to pay interim attorney's fees out ofthe existing funds in the party's possession.

The guidelines of Ex parte Preston were followed inEx parte Milstein , No. 05-90-00866-CV (Tex. App.--Dallas, August 21, 1990) (not published). In theMilstein case, the trial court ordered interimattorney's fees be paid by husband to wife in theamount of $220,375.00, in three installments of$73,458.33 each. Upon husband refusing to pay theinterim attorney's fees and after an additionalhearing, the trial court signed an order entitled"Order in Aid of Enforcement" that found thatMilstein owned 123,552 shares of Merrill LynchReady Assets money funds having a value of$123,552.00 as of February 23, 1990, in MerrillLynch Pierce Fenner and Smith, Inc. account No.689-9784, and bearing taxpayer No. 276-44-8755;and municipal bonds having a value of $425,601.00as of February 23, 1990, in the same Merrill Lynchaccount number, bearing the same taxpayer number,and that said taxpayer number was the same asMilstein's Social Security number. The trial courtthen ordered Milstein to sell 120,375 shares of theMerrill Lynch Ready Asset money funds, whichwould produce $120,375.00 and to sell a sufficientnumber of the municipal bonds to produce$100,000.00, and to deposit the proceeds from thesale of the bonds and ready assets into the registry ofthe court by certified check, payable to the DistrictClerk of Dallas County, Texas.

Milstein refused to comply with the court's order,was held in contempt of court and ordered confined.By order issued August 21, 1990, the Dallas Courtof Appeals denied Milstein's application for writ ofhabeas corpus and ordered him to jail until suchtime as he purged himself of contempt as requiredby the trial court's commitment order. Although theDallas Court of Appeals did not publish the case anddid not write a full opinion, it did cite one case, Exparte Preston, supra.

The Preston and Milstein cases provide guidance ondrafting enforceable orders for interim attorney'sfees in situations where there is an identifiable assetin the possession, actual or constructive, of the otherspouse: (1) specifically identify the asset, (2) havea specific finding in the order that the asset is inexistence and in the possession, actual orconstructive, of the spouse, (3) designate the spouseas constructive trustee, (4) order the spouse asconstructive trustee to deliver the asset to the court




8

registry on or before a specific date.

Since the Dallas Court of Appeals did not write afull opinion in Ex parte Milstein and since the caseis not published, it cannot be cited as legal authority.But, the guidelines set forth therein can certainly beutilized as one drafts orders.

2. Segregate Costs and Expenses of Discoveryfrom Interim Attorney’s Fees

Absent an abuse of discovery, an order strikingpleadings in order to enforce payment of interimattorney's fees is beyond a court’s authority underRule 215(2)(b), Texas Rules of Civil Procedure.Baluch v. O'Donnell, 763 S.W.2d 8, 11 (Tex.App.--Dallas 1988, orig. proceeding).

However, a different drafting approach achieved adifferent result in Shirley v. Montgomery, 768S.W.2d 430 (Tex. App.--Houston [14th Dist.] 1989,orig. proceeding). The trial court entered atemporary order ordering Mrs. Shirley to pay$15,000.00 into an attorney ad litem's trust accountfor the purpose of being used for discovery costsand expenses in order to represent the best interestsof the child, as opposed to being used for attorney'sfees. Wife failed to pay the $15,000.00, resulting inthe trial court granting a motion for sanctions andordering wife's pleadings stricken if she did not paythe $15,000.00 into the ad litem's trust fund by aJanuary 23 deadline. The trial court further orderedthat wife not be allowed to introduce matters intoevidence or call witnesses at the time of trial if the$15,000.00 was not paid as ordered. The Court ofAppeals ruled that since the temporary order to pay$15,000.00 was for discovery costs and expenses,rather than interim attorney's fees, that the use ofdiscovery sanctions could be permitted.

However, the Court of Appeals ruled that sincewife's testimony at the contempt hearing clearlyshowed she did not have the ability to pay$15,000.00, the trial judge abused his discretionwhen he ordered wife's pleadings stricken underdiscovery sanctions. The mandamus wasconditionally granted to the extent that the trial courtwas directed to set aside the order striking wife'spleadings and disallowing her offering any evidenceor calling any witnesses at trial.

Therefore, it appears by comparing the O'Donnellcase and the Montgomery case, if temporary ordersare drafted ordering the payment of interimattorney's fees, Rule 215(2)(b) sanctions may not beimposed for nonpayment (O'Donnell). If temporary

orders are drafted so that a party is ordered to pay anamount of money from existing funds into anattorney's trust account, not for attorney's fees, but tocover the costs and expenses of discovery,imposition of sanctions can be imposed fornonpayment (Montgomery).

3. Request the Court Award InterimAttorney’s Fees as Temporary Child Supportor Spousal Maintenance

In Ex parte Kimsey, 915 S.W.2d 523 (Tex. App.-ElPaso 1995, orig. proceeding), the trial court awardedinterim attorney’s fees as additional temporaryspousal support. The trial court used the followinglanguage:

As additional temporary spousal support, ITIS ORDERED that ROY EDWINKIMSEY, JR. shall pay $50,000 into theregistry of the court as an attorney fee [sic]DALE B. KIMSEY,…

Id., at 524.

The fees were payable in biweekly installments of$5,000 each, with the date, place and time ofpayment specified in the order. In addition, theRelator, Mr. Kimsey, was ordered to pay childsupport, temporary spousal support and otherpayments.

When Mr. Kimsey failed to make the interimattorney’s fee payments, Mrs. Kimsey filed a motionfor contempt. The trial court found Mr. Kimseyguilty of separate violations for his failure to payeach of the required biweekly installments. Thecourt further found that he had within his possessioncommunity funds that were available to make thepayments. Mr. Kimsey was ordered committed tothe county jail until he purged himself of contemptby paying the $20,000 into the registry of the court.Mr. Kimsey filed his application for writ of habeascorpus with the Eighth District Court of Appeals inEl Paso.

Mr. Kimsey argued that he was incarcerated for thefailure to pay a debt in violation of the TexasConstitution. Implicit in his argument was theconcept that the trial court may not do indirectlywhat it may not do directly. Noting theconstitutional prohibition against imprisonment fordebt, the Court of Appeals found that the trialcourt’s order was an order requiring temporarysupport payments that are statutorily authorized andenforceable by contempt. The Court of Appeals






9

stated:

Relator suggests that although the order iscouched in terms of temporary spousalsupport, in reality it merely serves thepurpose of paying a debt—the attorney’sfees incurred by his wife. Implicit in thisargument is the concept that the trial courtmay not do indirectly what it may not dodirectly. We disagree. It matters notwhether the trial court awards alimonypendente lite to the wife in order to provideher with sufficient funds with which to payher attorney or whether the court orders, astemporary spousal support, that the monieswill be paid directly to the attorney for thewife’s benefit or into the registry of thecourt for disbursement upon application. Ineach instance, the wife is recouping thebenefit of the support award. We note thatother courts have recognized a distinctionbetween ordering a spouse to pay a third-party debt and ordering the payment of thedebt as temporary spousal support. See, Exparte Delcourt, 868 S.W.2d 373 (Tex.App.-Houston [1st Dist.] 1993, orig.proceeding); Whitt v. Whitt, 684 S.W.2d731 (Tex. App.-Houston [14th Dist.] 1984,no writ). Accordingly, we find that Relatorhas not been imprisoned for failure to pay adebt.

Id. at 526.

The Court of Appeals distinguished the holding inEx parte Hightower, 877 S.W.2d 17 (Tex. App.-Dallas 1994, orig. proceeding), in which the DallasCourt of Appeals held that attorneys fees may not beclassified as support nor enforced by contempt. In afootnote to its decision in Kimsey, the El Paso Courtof Appeals stated:

If a parent has an obligation to support achild [which is considered a legal dutyarising from the status of the relationshiprather than a debt], and if the courtpossesses statutory authority to order thepayment of attorney’s fees for the safetyand welfare of the child, we see no rationalefor the conclusion that attorney’s fees maynot be ordered paid as child support,particularly where the welfare of the child isin issue as it is in a suit affecting the parent-child relationship.

Id., at 526.

The Court concluded its opinion with the followingstatement:

The community estate terminates only upondeath or divorce, and until a final decree isentered, the spouse in control of the greatmajority of liquid assets or income cannotavoid payment of interim fees on theconstitutional basis asserted here, providedthose fees are ordered as temporary spousalsupport. To hold otherwise disenfranchisesthe non-employed spouse because itseriously hampers the ability to retainand/or maintain effective legal counsel andnecessary expert witnesses.

Id., at 527.

A few carefully chosen words can make a lot ofdifference in the ability to enforce interim attorney’sfees by contempt. Whitt, Delcourt and Kimseycollectively provide authority to characterize thepayment of interim fees and expenses as temporaryspousal or child support.

III. ATTORNEY'S FEES AT THECONCLUSION OF THE CASE

A. Legal Authority

1. Title 1: The Marriage Relationship

The Texas Family Code requires the trial court todivide the parties’ estate in a just and right manner,having due regard for the rights of each party andany children of the marriage. TEX. FAM. CODEANN. § 7.001.

A trial court’s only basis for awarding attorney’sfees in a divorce action is in making a just and rightdivision of the community estate. Roever v. Roever,824 S.W.2d 674, 676 (Tex. App.-Dallas 1992, nopet.). The attorney’s fee is a factor to be consideredin making an equitable division of the estate,considering the conditions and needs of the partiesand all the surrounding circumstances. Murff v.Murff, 615 S.W.2d 696, 699 (Tex. 1981); Carle v.Carle , 149 Tex. 469, 234 S.W.2d 1002 (1950).

If the divorce does not include a suit affecting theparent-child relationship and there is no communityproperty estate, the court may not award attorney’sfees to a party. Chiles v. Chiles, 779 S.W.2d 127,129 (Tex. App.-Houston [14th Dist.] 1989, writdenied).










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2. Title 5: The Parent-Child Relationshipand the Suit Affecting the Parent-ChildRelationship

Attorney’s fees are recoverable in a suit affectingthe parent-child relationship. Texas Family Code,Section 106.002 provides as follows:

(a) In a suit under this title, including, thecourt may order reasonable attorney'sfees as costs and order the fees to be paiddirectly to an attorney.

(b) An award of attorney’s fees may beenforced in the attorney’s own name byany means available for the enforcementof a judgment.

A suit for divorce that involves parents of minorchildren necessarily includes a suit affecting theparent-child relationship. TEX. FAM. CODEANN. § 6.406(b).

Other sections of Title 5 of the Texas Family Codethat authorize payment of attorney's fees in suitsaffecting the parent-child relationship are as follows:

1. Section 107.015 for the award of attorney'sfees to a guardian or attorney ad litem.

2. Section 152.312(a) in an action broughtunder the Uniform Child CustodyJurisdiction and Enforcement Act(UCCJEA).

3. Section 156.005 for attorney's fees for thefrivolous filing of a suit for modification.

4. Section 157.167 for attorney's fees in anychild support enforcement proceeding.

5. Section 160.636(c) for the payment ofattorney's fees in a suit to adjudicate theparentage of a child.

B. Pleading for Attorney's Fees

To be entitled to a discretionary award of attorney’sfees, the movant must file an affirmative pleadingrequesting them unless the issue is waived or triedby consent. Klaver, supra at 405.

If a person requesting attorney’s fees pleads for aspecific amount, he will be limited to that amount.Carson v. Carson, 528 S.W.2d 308, 309 (Tex. Civ.App.-Waco 1975, no writ).

The simple principle is that if you do not requestfees, you will not receive them. You should checkyour pleadings well in advance of trial. If you have

substituted in for another attorney, be certain thatyou amend your pleadings to request an award offees in your own name or that of your firm, both fortrial and in the event of appeal. See Short, J.Lindsey, Jr. and Joan F. Jenkins, supra, p. 9.

The Texas Family Practice Manual, Second Edition,is an excellent resource for drafting pleadingsrequesting an award of attorney’s fees.

C. Proving Attorney’s Fees

1. Overview

Many of the steps for proving attorney's fees at thefinal hearing are similar to those for interimattorney's fees. The major difference is that ratherthan estimating the legal services that will berendered, the time that will be incurred, and theexpenses that will be incurred, at final, you willknow legal services that have been rendered, theexpenses that have been incurred and the time thathas been involved at least through the time oftestifying on attorney's fees toward the end of thepresentation of your case. Be sure to remember toprovide testimony on estimating the time required toprepare and review the decree or order, qualifieddomestic relations order, medical child supportorder, income withholding order and other relateddocuments.

You should be prepared to prove up attorney's feesin the event the case were to be appealed to the courtof appeals and thereafter to the Texas SupremeCourt. The matter of attorney’s fees in the event ofappeal is one of the most overlooked areas of proof.It only takes another few minutes to prove up thesefees and preserve the issue.

Be prepared to present a detailed explanation of thework performed and the expenses paid as well as thereasons and necessity for same as follows:

1. Explain the terms of your attorney feecontractand admit it into evidence.

2. Provide time records or a summary of thetime records.

3. Provide a step-by-step chronology of thetasks performed by the attorney and legalassistant, showing the time required for eachtask. Provide documentation of the expensesincurred. Provide an exhibit thatdemonstrates these matters.

4. Show the amounts previously paid by your client.

5. Show the debt incurred by your client to pay



11

attorney's fees and expenses.6. Set forth the amounts still owed by the client

to the attorney.7. Document as completely as possible the time

and expenses caused by the acts, omissionsand failure to cooperate by opposing partyand opposing attorney. You can use this asan opportunity to demonstrate how difficultand unreasonable the other party or attorneyhas been.

8. Provide evidence of the acts of the otherattorney and other party that increased theattorney's fees and expenses incurred by yourclient. For example, if the opposing party didnot comply with discovery requests, did notshow up for depositions, and you had toobtain protective orders in order to obtaincompliance.

9. If the documents provided in response to arequest for production came in one or morelarge cardboard boxes, totally askew, not inthe order the records would normally be kept,and not in the order specified in the discoveryrequest, explain the extra time that wasrequired to go through the documents. Pointout that Rule 196.3(c), Texas Rules of CivilProcedure states:

The responding party must either producedocuments and tangible things as they arekept in the usual course of business ororganize and label them to correspond withthe categories in the request.

2. Testimony Concerning Attorney’s Fees

Unless you designate yourself as an expert witnessin response to a proper discovery request, you willnot be permitted to testify. Similarly, if you plan tocall another attorney to testify about thereasonableness of your fees, the attorney must alsobe designated as an expert. You may be required tofurnish your fee agreement and billing statements inresponse to a request for production of documents.Your failure to furnish these will jeopardize yourability to prove your fees.

Perhaps one of the poorest ways to convince a courtto award fees is to request that the Court takejudicial notice that a sum of money is a reasonableattorney’s fee. The trial court may not take judicialnotice of the reasonableness of attorney's fees inan action that is not under section 38 of the CivilPractice and Remedies Code. See Valdez v.Valdez, 930 S.W.2d 725, 733 (Tex. App.-Houston [1st Dist.] 1996, no writ). However, at

least one court of appeals has upheld the trialcourt’s having taken judicial notice in a family lawcase as to the reasonableness of and necessity forattorney’s fees under Rule 201, Texas Rules ofEvidence. In the Interest of Striegler, 915S.W.2d 629, 644 (Tex. App.-Amarillo 1996, writdenied). The wise attorney should be prepared topresent expert evidence through his/her owntestimony and, if deemed necessary, anotherattorney to support the request for fees.

You may request the court to permit you to testify innarrative form. The trial court can allow testimonyin narrative form in order to promote expedition ofthe hearing and to avoid needless consumption oftime. TEX. R. EVID. 611(a); Food Source, Inc. v.Zurich Ins. Co., 751 S.W.2d 596, 600 (Tex. App.-Dallas 1988, writ denied); French v. Brodsky, 521S.W.2d 670, 679 (Tex. Civ. App.-Houston [1st

Dist.] 1975, writ ref’d n.r.e.). However, afterfinding no reversible error in the trial court’sdecision to permit an attorney to testify in narrativeform at a bench trial, one appellate court stated thatit did not condone narrative testimony and did notencourage its further use. Great Global AssuranceCo. v. Keltex Properties, Inc., 904 S.W.2d 771, 778(Tex. App.-Corpus Christi 1995, no writ); Seealso Abramson v. Davenport, 269 S.W.2d 833,834 (Tex. Civ. App.--Austin 1954, writ ref'dn.r.e.).

If opposing counsel objects to your request to testifyin narrative form, argue that the objection is raisedfor purposes of harassment. Argue as well thatrequiring testimony in question and answer formatunnecessarily prolongs the trial and burden thecourt’s time. Finally, remind the court that Rule611(a), Texas Rules of Evidence permits the court toexercise reasonable control over the mode and orderof interrogation of witnesses and the presentation ofevidence.

The testimony that you give in support of your feeshould be viewed from the perspective of educatingthe court so that the court can make an informeddecision about your fee request.

Explain to the court the chronology of servicesneeded, why the services were needed, as well as thetime and expense required. You can explain thatextra time was spent because of acts of the otherparty, by not cooperating, by hiding assets, bywasting assets, and other conduct causing yourclient's attorney's fees to be increased.

In selecting another attorney to testify for you on the










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issue of attorney's fees, take the time to carefullyselect an experienced, highly respected attorney.You may request the court to allow your testifyingexpert to sit in the courtroom during your testimonyon attorney's fees. There is legal authority forallowing an expert to stay in the courtroom andlisten to testimony and not be subject to The Rule.See TEX. R. EVID. 614.

You should have your expert review the court's filefor pleadings, orders and discovery. However, youshould be aware that if you allow your expert toreview your entire file, your entire file may bediscoverable by your opposing attorney.

3. Show Your Client's Inability to Pay andThe Opposing Party's Ability to Pay

The steps involved in showing your client's inabilityto pay and the opposing party's ability to payattorney's fees at final hearing are similar to thoseutilized for interim attorney's fees.

4. Show the Court How Attorney's Fees CanBe Paid

The methodology described for payment of interimattorney’s fees is applicable to a request for finalattorney's fees.

By this point in the trial, the court should be veryfamiliar with the assets and liabilities of the parties,earning capacity of the parties, existence of and sizeof separate estates of the parties and other factorsproviding the court with options on how finalattorney's fees can be paid. You should seekpayment of final attorney's fees first from theexisting liquid assets, second from the proceeds ofthe sale of existing assets and finally as a moneyjudgment, which should be secured if possible.

D. Factors To Be Considered in AwardingAttorney's Fees at the Conclusion of the Case

1. Suits Under Title 1

In Murff, supra, the Texas Supreme Court providedus with that now familiar laundry list of factors thata trial court may consider when making a just andright division of the community estate, as follows:

1. disparity of incomes or of earningcapacities of the parties;

2. the spouses’ capacities and abilities;3. benefits which the party not at fault would

have derived from continuation of themarriage;

4. business opportunities;5. education;6. relative physical conditions;7. relative financial condition and

obligations;8. disparity of ages;9. size of separate estates; and10. the nature of the property.

Id. at 698-699.

The current version of the Original Petition forDivorce, Form 3-1, Texas Family Law PracticeManual, Second Edition, Volume 1, sets forthtwenty-eight factors for the trial court to considerwhen one party is trying to convince the court that afair and just division of the community estate wouldbe an unequal division in favor of the requestingparty. These factors are based upon Murff and itsprogeny. The factors are as follows:

1. fault in the breakup of the marriage;2. a fraud on the community;3. benefits the innocent spouse may

have derived from the continuation ofthe marriage;

4. disparity of earning power of thespouses and their ability to supportthemselves;

5. health of the spouses;6. the spouse to whom conservatorship

of the child(ren) is granted;7. needs of the child(ren) of the

marriage;8. education and future employability of

the spouses;9. community indebtedness and

liabilities;10. tax consequences of the division of

property;11. ages of the spouses;12. earning power, business

opportunities, capacities, and abilitiesof the spouses;

13. need for future support;14. nature of the property involved in the

division;15. wasting of community assets by the

spouses;16. credit for temporary support paid by a

spouse;17. community funds used to purchase

out-of-state property;18. gifts to or by a spouse during the


13

marriage;19. increase in value of separate property

through community efforts by time,talent, labor, and effort;

20. excessive community property giftsto the parties' child(ren);

21. reimbursement;22. expected inheritance of a spouse;23. attorney's fees to be paid;24. creation of community property

through the use of a spouse's separateestate;

25. the size and nature of the separateestates of the spouses;

26. creation of community property bythe efforts or lack thereof of thespouses;

27. actual fraud committed by a spouse;and

28. constructive fraud committed by aspouse.

2. Suits Under Title 1 or Title 5

Rule 1.04, Texas Disciplinary Rules of ProfessionalConduct, provides the following factors to beconsidered in determining whether a fee isreasonable:

(a) A lawyer shall not enter into anarrangement for, charge, or collect anillegal fee or unconscionable fee. A feeis unconscionable if a competent lawyercould not form a reasonable belief thatthe fee is reasonable.

(b) Facts that may be considered indetermining the reasonableness of a feeinclude, but not to the exclusion of otherrelevant factors, the following:

(1) the time and labor required, thenovelty and difficulty of thequestions involved, and the skillrequisite to perform the legal serviceproperly;

(2) the likelihood, if apparent to theclient, that the acceptance of theparticular employment will precludeother employment by the lawyer;

(3) the fee customarily charged in thelocality for similar legal services;

(4) the amount involved and the results

obtained;

(5) the time limitations imposed by theclient or by the circumstances;

(6) the nature and length of theprofessional relationship with theclient;

(7) the experience, reputation, andability of the lawyer or lawyersperforming the services; and

(8) whether the fee is fixed orcontingent on results obtained oruncertainty of collection before thelegal services have been rendered.

Tex. Disciplinary R. Prof’l Conduct 1.04 (1989),reprinted in Tex. Gov’t Code Ann. Tit. 2, subtit.G app. A (State Bar Rules art. X, § 9); See alsoBraswell v. Braswell, 476 S.W.2d 444 (Tex. Civ.App.-Waco 1972, writ dism’d).

E. Factors that Judges Consider in AwardingAttorney’s Fees

Factors that courts consider in ordering finalattorney's fees, based on surveys conducted by MikeGregory, J. Lindsey Short, Jr. and Joan F. Jenkins ofjudges and associate judges, are as follows:

1. Fault in the creation of attorney's fees, asdistinguished from fault in the breakup of themarriage.

2. Examples given by judges of fault in thecreation of attorney's fees are as follows:

a) causing unnecessary hearingsb) causing unnecessary discoveryc) unreasonable resistance to discoveryd) unrealistic request to the court involving

property division or childrene) failure to accept reasonable settlement

offer

3. Will the award of final attorney's feesexacerbate hostility between the parties? Ifso, and if attorney's fees are justified andthere is sufficient property to divide,attorney's fees will be hidden in propertyaward and not be set out as a specific awardof attorney's fees.

4. Amount awarded is usually based in small



14

part on attorney's experience andqualifications, unless superior qualificationsand experience resulted in less lawyer timebeing expended and the resolution ofcomplex legal issues requiring superiorexperience and qualifications, in which eventthe experience and efficiency of the attorneywill play a larger part in the award ofattorney's fees.

5. How the property division will affect theaward of attorney's fees.

6. Relative earning capacity of the parties.

7. How, if at all, could the "best interest" of thechildren be affected by an award of attorney'sfees?

8. Fault in the breakup of the marriage, ifproperly pled and proven.

9. The amount and complexity of the legalservices required.

10. Ability to pay to attorney's fees.

11. Did one of the parties use custody as leverageto obtain more property? Did one of theparties unnecessarily and unreasonablyinvolve the children in the divorce case?

12. Did one party waste community assets?

13. Was a party unreasonably contentious?

Gregory, Mike, supra p. 12; Short, J. Lindsey, Jr.and Joan F. Jenkins, supra p. 11.

Many of the judges stated that they use a fee awardto achieve a fair division of the parties’ estate.Judges indicated that they will use fees to punish aparty who has made the litigation more expensive orvexatious. Judges show some reluctance to awardfees in the average case in which the parties are onrelatively equal footing and there is no genuine fault.It does not appear that judges will award fees to aparty who did not prevail. Short, J. Lindsey, Jr.and Joan F. Jenkins, supra p. 11.

IV. CONCLUSION

Contrary to the perception, judges are not opposedto awarding attorney’s fees, have not forgotten whatit was like in the practice of law, nor have theyforgotten how difficult family law cases can be.

They are interested ultimately in being perceived ashaving been fair and impartial. Given the propercircumstances, evidentiary and legal support, judgesare more likely to be convinced that the award ofattorney’s fees is reasonable, necessary and the fairthing to do.

It takes preparation, persuasion, perseverance, andpatience to succeed in obtaining an award ofattorney’s fees. It is suggested that adherence to thesuggestions made in this paper, with particularattention paid to the factors that judges themselveshave stated are important considerations in awardingattorney’s fees, will enhance the attorney’s ability tosecure an award of attorney’s fees and achieve someequity for the client.


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APPENDIX A

ESTIMATED INTERIM ATTORNEY'S FEES AND EXPENSES

TASK RANGE OF FEES

I. Various conferences and communications with client

Atticus Finch:1: 10 - 15 hours $2,000 - $3,000Associate Attorney2: 5 - 10 hours $ 625 - $1,250Legal Assistant3: 10 - 15 hours $ 750 - $1,125

II. Preparation of various pleadings, (amended petition, etc.);inventories (original and amended), temporary orders; and all othernecessary pleadings

Atticus Finch: 10 - 15 hours $2,000 - $3,000Associate Attorney: 5 - 10 hours $ 625 - $1,250Legal Assistant: 20 - 30 hours $1,500 - $2,250

III. Discovery

a. Interrogatories (propounding and supplementation)

Atticus Finch: 5 - 10 hours $1,000 - $2,000Associate Attorney: 5 - 10 hours $ 625 - $1,250Legal Assistant: 5 - 10 hours $ 375 - $ 750

b. Document Production Request and Review

Atticus Finch: 30 - 40 hours $6,000 - $8,000Associate Attorney: 10 - 20 hours $1,250 - $2,500Legal Assistant: 10 - 20 hours $ 750 - $1,500

c. Depositions (preparation, taking, attending, review and summarization):

1. The Husband

Atticus Finch: 10 - 20 hours $2,000 - $4,000Associate Attorney: 5 - 10 hours $ 625 - $1,250Legal Assistant: 5 - 10 hours $ 375 - $ 750

2. The Wife

Atticus Finch: 5 - 10 hours $1,000 - $2,000Associate Attorney: 2 - 5 hours $ 250 - $ 625Legal Assistant: 2 - 5 hours $ 150 - $ 375

1 Atticus Finch hourly rate: $200.002 Associate Attorney hourly rate: $125.003 Legal Assistant hourly rate: $75.00


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3. Sam Swindle, Husband’s C.P.A.

Atticus Finch: 2 - 5 hours $ 400 - $1,000Associate Attorney: 1 - 2 hours $ 125 - $ 250Legal Assistant: 1 - 2 hours $ 75 - $ 150

4. Holly Golightly, Husband’s Expert Witness


5. John Doe


6. Jane Doe


7. Attendance at depositions taken by Husband (approximately 4)

Atticus Finch: 20 - 30 hours $4,000 - $6,000Associate Attorney: 10 - 20 hours $1,250 - $2,500Legal Assistant: 10 - 20 hours $ 750 - $1,500

IV. Consultation and planning with experts

Atticus Finch: 20 - 40 hours $4,000 - $8,000Associate Attorney: 10 – 20 hours $1,250 - $2,500Legal Assistant: 10-20 hours $ 750 - $1,500

V. Legal research and briefing

Atticus Finch: 5 - 10 hours $1,000 - $2,000Associate Attorney: 20 - 30 hours $2,500 - $7,500

VI. Attorney conferences with client, experts, and witnesses fortrial preparation and/or settlement negotiation

Atticus Finch: 25 - 50 hours $5,000 - $10,000Associate Attorney: 10 - 20 hours $1,250 - $ 2,500Legal Assistant: 30 - 60 hours $2,250 - $ 4,500


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VII. Preparation for trial, including trial exhibits and compilationof documents for trial or settlement negotiations and preparation oftrial notebooks and research notebooks

Atticus Finch: 10 - 20 hours $2,000 - $4,000Associate Attorney: 10 - 20 hours $1,250 - $2,500Legal Assistant: 30 - 50 hours $2,250 - $3,750

VIII. Preparation for and attendance at hearings during the case

Atticus Finch: 25 - 50 hours $5,000 - $10,000Associate Attorney: 15 - 30 hours $1,875 - $ 3,750Legal Assistant: 10 - 20 hours $ 750 - $ 1,500

TOTAL INTERIM FEES $61,425 - $116,475

IX. Costs

Court reporting $5,000 - $7,000Business evaluation $2,500 - $5,000Accounting fees $2,500 - $5,000Real estate appraisals $2,000 - $4,000Copies, fax, long distance $2,000 - $4,000Filing fees, subpoenas, process server $2,000 - $4,000

TOTAL COSTS AND EXPENSES $16,000 - $29,000

TOTAL INTERIM FEES AND EXPENSES REQUESTED $77,425 - $145,475

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