in the Interest of Z.O.M. and K.R.M., Children ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
OPINION 1
No. 04-18-00918-CV
IN THE INTEREST OF Z.O.M. and K.R.M., Children
From the 407th Judicial District Court, Bexar County, Texas
Trial Court No. 2008CI09446
Honorable John D. Gabriel, Jr., Judge Presiding
OPINION ON MOTION FOR REHEARING
Opinion by: Luz Elena D. Chapa, Justice
Concurring Opinion by: Rebeca C. Martinez, Justice
Concurring and Dissenting Opinion by: Sandee Bryan Marion, Chief Justice
Sitting: Sandee Bryan Marion, Chief Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: September 30, 2020
MOTION FOR APPELLATE SANCTIONS DENIED, REVERSED AND RENDERED,
MOTION FOR REHEARING DENIED
Appellee’s motion for rehearing is denied. On the Court’s own motion, the prior Opinion
and judgment are withdrawn, and today’s Opinion and judgment are substituted in their stead.
Stephen Matthews and the Bexar County Domestic Relations Office (DRO) appeal an
award of attorney’s fees against Matthews in the amount of $17,702. The award was rendered in
1
Under Texas Rule of Appellate Procedure 47.2, this Opinion constitutes the opinion of the court as to the “Appellate
Jurisdiction & Appellate Sanctions” section. See TEX. R. APP. P. 47.2(a). Otherwise, because no opinion has been
approved by a majority of panel as to any other part, there is no other majority opinion of the court.
04-18-00918-CV
a child-custody enforcement action the DRO filed against Matthews’s ex-wife, Melody Morrison.
Morrison argues this court lacks appellate jurisdiction and seeks appellate sanctions. The court
reverses the award of attorney’s fees, renders a take-nothing judgment on Morrison’s request for
attorney’s fees, and denies Morrison’s request for appellate sanctions.
BACKGROUND
Matthews and Morrison were divorced in 2010. At that time, Matthews and Morrison had
two children, Z.O.M. and K.R.M. The divorce decree contained a modified standard possession
order appointing Matthews and Morrison as joint managing conservators. The modified standard
possession order was later amended, but Matthews and Morrison remained joint managing
conservators. Matthews was ordered to pay child support.
A. The Pleadings
In 2018, under its statutory authority, the DRO filed a motion on its own behalf to enforce
the possession order. See TEX. FAM. CODE § 203.004(a)(3)(B). In its amended motion, the DRO
alleged thirty-five instances in which Morrison failed to comply with the possession order, and
sought to enforce the order through contempt. The DRO named Morrison as the sole respondent.
Matthews was not a party to the DRO’s motion to enforce.
Morrison filed an answer, seeking a denial of the DRO’s motion to enforce. At the end of
her answer, Morrison moved for sanctions under Texas Rule of Civil Procedure 13 and Chapter
10 of the Texas Civil Practice & Remedies Code. Morrison sought sanctions against not only the
DRO, but also Matthews, based on the allegations in the DRO’s motion.
B. The Hearing on the DRO’s Motion to Enforce & Final Order
At the hearing on the DRO’s motion to enforce, Morrison’s counsel testified about
attorney’s fees. At the close of the hearing, the trial court denied the DRO’s motion to enforce,
and ruled Morrison, as the prevailing party, would recover her attorney’s fees from Matthews, not
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the DRO. The trial court signed a final order, denying the DRO’s motion and rendering judgment
in favor of Morrison and against Matthews for $17,702 in attorney’s fees. The order does not
specify the basis for the attorney’s fees award.
C. Post-Judgment Proceedings
The DRO filed a motion for new trial, challenging the attorney’s fees award on several
grounds: (1) the award was an improper sanction; (2) Matthews was not a party to the DRO’s
motion to enforce; and (3) Matthews was not a party represented by the DRO. The DRO also
alleged, for the first time, section 231.211 of the Texas Family Code barred an award of attorney’s
fees because the action is a Title IV-D case.
Morrison filed a response, arguing the DRO was effectively acting as Matthews’s attorney
by filing the motion to enforce. She also argued for the first time that section 106.002 of the Texas
Family Code authorizes a discretionary award of attorney’s fees in actions to enforce a child-
custody order. At a hearing on the motion for new trial, the parties disputed the applicability of
sections 106.002 and 231.211. The motion was overruled by operation of law. At the DRO’s
request, the trial court made written findings of fact and conclusions of law. The DRO and
Matthews timely filed a joint notice of appeal.
OVERVIEW OF THE ISSUES
Only the award of attorney’s fees is challenged in this appeal. In their briefs and at oral
argument, the parties have focused primarily on whether the action is a Title IV-D case for which
section 231.211 of the Texas Family Code bars an award of attorney’s fees. The DRO and
Matthews have also raised other issues challenging the attorney’s fees award. As previously noted,
Morrison argues this court lacks jurisdiction and seeks appellate sanctions.
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The panel unanimously agrees this court has appellate jurisdiction and to deny Morrison’s
motion for appellate sanctions. A majority 2 concurs in the judgment to reverse the attorney’s fees
award and to render a take-nothing judgment. I would hold the award of attorney’s fees against
Matthews was improper because he was not a party to the DRO’s motion. Because it appears the
Title IV-D issue has been the most significant to the parties and in response to the other opinions,
I write separately on this issue.
APPELLATE JURISDICTION & APPELLATE SANCTIONS
Morrison argues this court lacks jurisdiction because this appeal concerns an order denying
a request for contempt. See Norman v. Norman, 692 S.W.2d 655, 655 (Tex. 1985) (per curiam)
(holding a contempt order is not reviewable by appeal). However, the DRO and Matthews do not
appeal the part of the order denying the DRO’s motion to enforce. Because only the attorney’s fees
award is appealed, this court has appellate jurisdiction. See In re T.L.K., 90 S.W.3d 833, 841 (Tex.
App.—San Antonio 2002, no pet.). 3 Also, because this appeal is not frivolous, Morrison’s request
for appellate sanctions is denied. See TEX. R. APP. P. 45.
ATTORNEY’S FEES
The DRO and Matthews argue the trial court erred by awarding attorney’s fees against
Matthews. They contend: (1) the trial court improperly awarded attorney’s fees as a sanction; and
(2) section 231.211 of the Texas Family Code bars an attorney’s fees award because the action is
a Title IV-D case. Morrison disagrees, and argues section 106.002 alternatively supports the award
2
The majority concurring in the judgment are Justice Martinez and myself. Chief Justice Marion would affirm.
3
The DRO had standing to file the underlying action to enforce the possession and access order. TEX. FAM. CODE
§ 203.004(a)(3)(B). The suit was also filed under Title V of the Texas Family Code, and “[a]n appeal may be taken
by any party to a suit from a final order rendered under this title.” Id. § 109.002(b). Under these circumstances, the
DRO has standing to appeal the attorney’s fees award against Matthews. See In re C.Y.K.S., 549 S.W.3d 588, 590
(Tex. 2018) (per curiam) (holding a governmental entity has standing to appeal judgment against a parent in a SAPCR
under section 109.002(b) when the agency has standing to file the underlying suit).
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of attorney’s fees as a discretionary award available in all suits affecting the parent–child
relationship (SAPCRs).
A. Standard of Review
“We review a trial court’s award of attorney’s fees for an abuse of discretion.” Fort Worth
Transp. Auth. v. Rodriguez, 547 S.W.3d 830, 850 (Tex. 2018). Under our applicable standard of
review, a judgment awarding attorney’s fees can “be affirmed on any theory of law applicable to
the case and supported by the record.” McDowell v. McDowell, 143 S.W.3d 124, 131 (Tex. App.—
San Antonio 2004, pet. denied).
B. Awarding Attorney’s Fees Against Matthews Was an Abuse of Discretion Because He
Was Not a Party to the DRO’s Motion to Enforce/SAPCR 4
“Texas has long followed the ‘American Rule’ prohibiting fee awards unless specifically
provided by contract or statute.” MBM Fin. Corp. v. Woodlands Operating Co., L.P., 292 S.W.3d
660, 669 (Tex. 2009). An award of attorney’s fees is proper against only the parties to a claim for
which attorney’s fees are available. See Tex. Am. Corp. v. Woodbridge Joint Venture, 809 S.W.2d
299, 302, 304–05 (Tex. App.—Fort Worth 1991, writ denied). 5 Attorney’s fees may not be
awarded against a person who is not a party to the claim for which attorney’s fees are available.
4
In her motion for rehearing, Morrison argues the DRO and Matthews “did not raise the issue of whether Matthews
was . . . a party to the underlying action.” However, the appellants’ brief argues the attorney’s fees award was improper
because Matthews did not sign the motion to enforce and was not represented by the lawyer who signed the motion
to enforce. If the DRO and Matthews are correct, then it necessarily follows that Matthews was not a party to the
motion to enforce, was not a party to the enforcement action, and was only a party for purposes of Morrison’s motion
for sanctions. Briefs need not use magic words. See In re I.L., 580 S.W.3d 227, 235 (Tex. App.—San Antonio 2019,
pet. dism’d). Furthermore, Morrison’s argument that the attorney’s fees award may be affirmed under section 106.002
of the Texas Family Code incorrectly assumes section 106.002 was a theory of law applicable to the case and supported
by the record. See McDowell, 143 S.W.3d at 131. Because Morrison did not plead or request attorney’s fees under
section 106.002 until her response to the motion for new trial, and a discretionary award of attorney’s fees was not
tried by consent, clearly and separately from her request for attorney’s fees as a sanction, our standard of review
precludes us from affirming the attorney’s fees award under section 106.002, regardless of whether the issue was
briefed. See id. Alternatively, section 106.002 did not authorize an attorney’s fees award against Matthews.
5
In Woodbridge, the court of appeals deleted the award of attorney’s fees against an individual because he was not a
party to the counterclaim for which attorney’s fees were available. 809 S.W.2d at 304; cf. Berryman’s S. Fork, Inc. v.
J. Baxter Brinkmann Intern. Corp., 418 S.W.3d 172, 203 (Tex. App.—Dallas 2013, pet. denied) (deleting award in
favor of a party in the suit who was not a party to the specific claim for which attorney’s fees were available).
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Satellite Earth Stations E., Inc. v. Davis, 756 S.W.2d 385, 387 (Tex. App.—Eastland 1988, writ
denied).
Under Chapter 10 and Rule 13, a trial court may award attorney’s fees as a sanction against
the person who has signed a pleading, “a party represented by the person, or both.” TEX. CIV.
PRAC. & REM. CODE § 10.004(a); TEX. R. CIV. P. 13; Citibank, N.A. v. Estes, 385 S.W.3d 671, 675
(Tex. App.—Houston [14th Dist.] 2012, no pet.). A trial court abuses its discretion by awarding
Chapter 10 or Rule 13 sanctions against any other person. Estes, 385 S.W.3d at 675. Because
Matthews was not a party to the DRO’s motion to enforce or the lawyer who signed the motion,
which is the only pleading upon which Morrison sought sanctions, Chapter 10 and Rule 13 cannot
support an award of attorney’s fees. 6
Although section 106.002 expressly provides a trial court may order an award of attorney’s
fees and expenses “in” a SAPCR, no part of section 106.002 specifically provides attorney’s fees
may be awarded against a person who is not a party in the SAPCR. TEX. FAM. CODE § 161.002(b).
Thus, under the American Rule, attorney’s fees may not be awarded against a nonparty to the
SAPCR under section 106.002. See MBM Fin. Corp., 292 S.W.3d at 669. Although this court has
stated section 106.002 “does not designate to which party fees may be awarded, nor does it limit
the trial court’s designation” (emphasis added), this court in In re R.E.S. did not hold that a trial
6
At the hearing, the DRO’s attorney announced she was the DRO’s attorney of record. The trial court then asked the
DRO’s attorney, “And you represent?” The DRO’s attorney responded, “On behalf of Stephen Matthews.” Viewed in
isolation, counsel’s response appears to suggest she was also counsel for Matthews. Because counsel had just stated
she was the DRO’s attorney, it appears from context that, by “you,” the trial court was referring to the DRO, and
asking whose interests the DRO was representing in the enforcement action, which was a public suit to enforce a child
custody order. See TEX. FAM. CODE § 203.004(a)(3)(B). The trial court also was presumably aware the DRO lacked
authority to act as Matthews’ counsel in the case. See id. § 203.004(a). While it is also possible Matthews retained the
DRO’s attorney, in her individual capacity, to represent him and respond to the motion for sanctions, the issue is
whether the DRO’s attorney was acting as counsel for Matthews when she signed the motion to enforce. Nothing in
the record establishes she was.
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court’s discretion is so unfettered that it may render an award of attorney’s fees against a nonparty.
See 482 S.W.3d 584, 586 (Tex. App.—San Antonio 2015, no pet.) (emphasis added).
Texas “courts have long held that a ‘party’ is one by or against whom a suit is brought
while all others who may be incidentally or consequentially affected were ‘persons interested’ but
not parties.” In re E.L.P., 636 S.W.2d 579, 581 (Tex. App.—San Antonio 1982, no writ). Although
parents of a child may be “persons interested” in a SAPCR involving the child, the child’s parents
are not automatically parties to the case. See Tristan v. Castillo, Nos. 04-05-00658-CV, 04-06-
00041-CV, 2007 WL 752203, at *2 (Tex. App.—San Antonio Mar. 14, 2007, no pet.) (mem. op.).
“In Gunn, the biological father of a child was neither named a party to an adoption proceeding nor
issued citation. The Supreme Court denied his writ of error because he was not a party to the
proceedings below, and the exception of virtual representation did not apply.” Id. (footnote
omitted) (discussing Gunn v. Cavanaugh, 391 S.W.2d 723 (Tex. 1965)). Matthews was an
interested person for purposes in the SAPCR, but he was not party “in” the SAPCR. The virtual
representation doctrine also does not apply because the DRO is not bound by the attorney’s fees
judgment, and the record does not establish any privity of estate, title, or interest between Matthews
and the DRO. See BASF Fina Petrochemicals Ltd. v. H.B. Zachry Co., 168 S.W.3d 867, 870 (Tex.
App.—Houston [1st Dist.] 2004, pet. denied). Section 106.002 does not support the attorney’s fees
award against Matthews.
Matthews was not a party to the DRO’s motion to enforce or a party “in” the SAPCR.
Although the parties dispute whether the trial court awarded attorney’s fees as a sanction under
Chapter 10 and Rule 13, or as a discretionary award under section 106.002, this dispute is
immaterial because each provision authorizes attorney’s fees only against a party or the party’s
attorney. By awarding attorney’s fees against Matthews, who is not a party to the motion to enforce
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or in the SAPCR or any party’s lawyer, the award of attorney’s fees against Matthews was an
abuse of discretion. See Estes, 385 S.W.3d at 675.
C. The Title IV-D Issue
The parties have primarily disputed whether Texas Family Code section 231.211 barred
the attorney’s fees award against Matthews because the action is “a Title IV-D case.” Section
231.211 provides:
At the conclusion of a Title IV-D case, the court may assess attorney’s fees and
all court costs as authorized by law against the nonprevailing party, except that the
court may not assess those amounts against the Title IV-D agency or a private
attorney or political subdivision that has entered into a contract under this chapter
or any party to whom the agency has provided services under this chapter.
TEX. FAM. CODE § 231.211(a) (emphasis added). This court appears to be presented with two
extreme options of holding a child-custody enforcement action filed by a DRO is either always a
Title IV-D case or never a Title IV-D case.
It appears that whether a child-custody enforcement action filed by a DRO is a Title IV-D
case depends on the circumstances. An action is a Title IV-D case if the “action relate[s] to the
services . . . authorized . . . under Section 231.101.” TEX. FAM. CODE § 101.034. 7 Section 231.101
authorizes “all” Title IV-D services:
(a) The Title IV-D agency may provide all services required or authorized to
be provided by [Title IV-D] of the federal Social Security Act (42 U.S.C. Section
651 et seq.), including:
(1) parent locator services;
(2) paternity determination;
(3) child support, medical support, and dental support establishment;
(4) review and adjustment of child support orders;
(5) enforcement of child support, medical support, and dental support
orders; and
(6) collection and distribution of child support payments.
7
The “Title IV-D agency” must be the entity providing services, but when the DRO is providing Title IV-D services,
the DRO is considered the Title IV-D agency. See In re Office of Atty. Gen., 422 S.W.3d 623, 625 n.1 (Tex. 2013,
orig. proceeding). Thus, this issue ultimately turns on whether the DRO was providing authorized Title IV-D services
in this case. See id.; see TEX. FAM. CODE § 231.211(a).
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Id. § 231.101(a) (emphasis added). Although section 231.101 “includ[es]” six specific services,
“includes” is a “term of enlargement, not of limitation,” and section 231.101 plainly authorizes
“all” services authorized by Title IV-D. Id.; In re E.C.R., 402 S.W.3d 239, 246 n.6 (Tex. 2013).
Title IV-D, in turn, authorizes state programs that “facilitate noncustodial parents’ access to and
visitation of their children, by means of . . . visitation enforcement.” 42 U.S.C. § 669b(a), (e).
Title IV-D’s visitation enforcement services are part of a federal grant program in which
states receive funds to enforce child support obligations. See id. § 651. Congress adopted this Title
IV-D grant program in the 1996 Personal Responsibility & Work Opportunity Reconciliation Act
of 1996, PL 104-193, 110 Stat 2105 (Aug. 22, 1996). Although Title IV-D is primarily focused on
child support enforcement, child support enforcement and access and visitation programs are
heavily intertwined. Child Support Enforcement Program; Grants to States for Access and
Visitation Programs: Monitoring, Evaluation, and Reporting, 63 FED. REG. 15351-01 (proposed
Mar. 31, 1998), 1998 WL 140546 (codified at 45 C.F.R. § 303.109).
“Consistent with federal law,” Texas has also authorized the Office of the Attorney General
(OAG), Texas’s Title IV-D agency, to execute governor-approved agreements with other
governmental entities “to enforce an order providing for possession of or access to a child” using
Title IV-D grant funds for visitation enforcement. TEX. FAM. CODE § 231.002(d). Texas law further
authorizes the OAG to “enter into agreements or contracts with federal, state, or other public or
private agencies or individuals for the purpose of carrying out the agency’s responsibilities under
federal or state law.” Id. § 231.002(c). The clear purpose of section 231.211 is to ensure federal
Title IV-D funds are used for “wide-ranging involvement in Title IV-D litigation,” not for awards
of attorney’s fees and court costs. See C.Y.K.S., 549 S.W.3d at 592. 8
8
The U.S. Office of the Administration of Children & Families has ruled, “Attorneys’ fees for . . . defending child
support obligors or accused [parents] serves no legitimate IV-D purpose, and therefore, funding for such costs is not
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Not all counties are required to have an agreement with the OAG under which the county’s
DRO provides services under Title IV-D. See TEX. FAM. CODE § 203.005(a)(2). Even without such
an agreement and without Title IV-D grant funds for visitation enforcement, a DRO may “file a
suit [to] enforce a court order for . . . possession of and access to a child.” See id. § 203.004(a)(3).
Such services may be funded by funds from fees and county appropriations, rather than Title IV-
D grant funds pursuant to a contract with the OAG. See id. §§ 203.005(a), 203.006(a)–(c).
Whether a child-custody enforcement action filed by a DRO is a Title IV-D case appears
to depend on whether the DRO’s county has entered into a contract with the OAG authorizing the
county to provide visitation enforcement services under Title IV-D. See id. §§ 231.002(c),
231.211(a). Because a party may rely on evidence of a contract with the OAG to avoid liability for
attorney’s fees in some cases, and the existence of such a contract need not be proved to obtain
attorney’s fees under section 106.002, Chapter 10, or Rule 13, the DRO had the burden to establish
the action was a Title IV-D case at or before the merits hearing. See TEX. R. CIV. P. 94; Zorrilla v.
Aypco Constr. II, LLC, 469 S.W.3d 143, 157 (Tex. 2015). The DRO raised this issue for the very
first time in its motion for new trial.
The DRO presented no evidence of a contract with the OAG at the motion for new trial
hearing, and asks this court to take judicial notice of OAG webpages appearing to show the DRO
provides Title IV-D visitation enforcement. But “appellate courts are reluctant to take judicial
notice of matters that go to the merits of a dispute.” Creaven v. Creaven, 551 S.W.3d 865, 872
(Tex. App.—Houston [14th Dist.] 2018, no pet.). Although I cannot say the trial court erred by
rejecting the DRO’s argument that section 231.211(a) bars an award of attorney’s fees, the award
an allowable IV-D expense.” Final Rule: Prohibition of Federal Funding for Costs of Guardians Ad Litem in IV-D
Actions, AT-92-10, Nov. 20, 1992, https://www.acf.hhs.gov/css/resource/final-rule-prohibition-federal-funding-
costs-of-guardians-ad-litem.
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of attorney’s fees remains improper because Matthews was not a party to the DRO’s motion and
SAPCR.
CONCLUSION
This court reverses the award of attorney’s fees against Matthews and renders 9 a take-
nothing judgment on Morrison’s request for attorney’s fees. Morrison’s motion for appellate
sanctions is denied. This court does not disturb the part of the trial court’s order denying the DRO’s
motion to enforce.
Luz Elena D. Chapa, Justice
9
Although Matthews and the DRO ask that we remand in the interests of justice, Morrison makes no similar request.
See TEX. R. APP. P. 38.1(i). The trial court made no findings that would otherwise support an award of attorney’s fees
under any statute, and the final order reflects the trial court purposefully deciding against awarding attorney’s fees
against the DRO.
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