CONVINCING THE COURT TO AWARD ATTORNEY S FEES

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CONVINCING THE COURT TO AWARD ATTORNEY’S FEES

DEAN RUCKER

318

th

Family District Court

Midland County Courthouse

200 West Wall Street, Suite 200

Midland, Texas 79701

915.688.1144

MIKE GREGORY

Gregory & Conner, P.C.

303 North Carroll Boulevard, Suite 100

Denton, Texas 76201

940.387.1600

28

TH

ANNUAL ADVANCED FAMILY LAW COURSE

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D

EAN

R

UCKER

F

AMILY

D

ISTRICT

J

UDGE 318th

F

AMILY

D

ISTRICT

C

OURT

200 West Wall, Suite 200

Midland, Texas 79701

Telephone: 915/688-1144 Facsimile: 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 1988-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 2001-Court, 1999-State Bar of Texas, Judicial Section

Director, Judicial Section, State Bar of Texas 2000-2001 State Bar of Texas, Family Law Section

Judicial Advisor, Family Law Council, State Bar of Texas 1997-1998; 1999-Texas Academy of Family Law Specialists

Member, 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 Texas Professional Development Program (1995)

Speaker, Judge's Jam Session, 21st Annual Advanced Family Law Course, State Bar of Texas Professional 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)

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Faculty, Training for Associate Judges, 24th Annual Advanced Family Law Course, State Bar of Texas Professional 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 Professional Development Program (1999)

Faculty, Contempt/Enforcement, 25th Annual Advanced Family Law Course, State Bar of Texas Professional 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 of Texas 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 Family Law 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 of Texas Professional Development Program (2000)

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

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

PROFESSIONAL HONORS

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MIKE GREGORY Attorney at Law

303 N. Carroll Blvd, Ste. 100 Denton, TX 76201 Metro: 972/434-3828

940/387-1600 e-mail: mike@dentonfamilylaw.com Fax: 940/387-2173

EDUCATION: University of Texas at Austin, Finance Major, Business Honors Program, B.B.A., 1967 University 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 Directory

Certified Matrimonial Arbitrator, American Academy of Matrimonial Lawyers Trained Mediator, American Academy of Attorney-Mediators, Inc.

PROFESSIONAL AFFILIATIONS:

Past President of Texas Academy of Family Law Specialists, 1989-1990 Fellow, American Academy of Matrimonial Lawyers

Member, Family Law Council, State Bar of Texas 1994-1999,

2000-Member, Form Book Revision Committee, Texas Family Law Practice Manual 1991-2002 Historian, Texas Academy of Family Law Specialists, 1991-2001

Past President of Denton County Bar Association, 1983-1984

Past Director of Texas Academy of Family Law Specialists, 1984-1988 Past Director of North Texas Family Law Specialists Association, 1983-1986 Member, Family Law Section, State Bar of Texas and American Bar Association Member, Denton County Family Law Association

CLE ACTIVITIES:

Interesting Family Law Cases: An Update - 2002 Marriage Dissolution Institute Discovering and Valuing Concealed Property 2002 U.T. Family Law on the Front Lines and Income (with William F. Neal) - Conference, Galveston

Multiple Purpose Drafting Modules - 2001 Advanced Family Law Drafting Course Enforcement, Securing and Clarifying

Property Division - 2001 Advanced Family Law Course Attorneys’ Fees and Contracts - 2001 Family Law Seminar, Corpus Christi Discovery Tracking Systems - 2000 Ultimate Trial Notebook

Law Office Management - 2000 Advanced Family Law Course Attorneys’ Fees and Contracts - 2000 Marriage Dissolution Course

Characterization and Tracing - 1999 Family Law Practice Seminar, University of Houston Law Center

Division of a Privately Owned Business - 1999 Advanced Family Law Course (with Randall Wilhite)

Characterization and Tracing - 1998 Advanced Family Law Course Characterization of Property - 1998 Family Law Practice Seminar

University of Houston Dealing Effectively with the Mental Health Experts

(for You, against You, and Court-Appointed)

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Course Director - 1993 7th Annual Trial Institute,

Texas Academy of Family Law Specialists

QDROS - 1995 Advanced Family Law Course

Attorney's Fees: Negotiating the Fee, 1994 Family Law Practice Seminar, Fee Arrangements and Collecting Your Fee - University of Houston Law Foundation A Survey of Family Law Clients - 1994 Marriage Dissolution Course Office 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 Law

Attorney's Fees - Interim and Final - 1993 Advanced Family Law Course Exercise and Nutrition, Balanced

Moderation for Total Well-Being - 1993 Advanced Family Law Course Attorney's Fees in Family Law Cases - 1993 Family Law Practice Seminar,

University of Houston Law Foundation Interesting Cases - 1992 Marriage Dissolution Course

Enforcing Family Law Decrees - 1991, 1992, and 1994 General Practice Institute, University of Houston Law Center

Attorneys' Fees and Ethics - 1989 Marriage Dissolution Course

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Table of Contents

I. INTRODUCTION ...1

II. INTERIM ATTORNEY’S FEES ...1

A. LEGAL AUTHORITY... 1

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

2. Title 5: The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship, Chapter 105. Settings, Hearings, and Orders ...1

B. OVERVIEW... 1

C. PLEADING FOR INTERIM FEES AND EXPENSES... 1

D. PROVING INTERIM FEES AND EXPENSES... 1

E. DEMONSTRATE YOUR CLIENT'S INABILITY TO PAY YOUR ATTORNEYS FEES AND EXPENSES... 2

F. DEMONSTRATE THE OTHER SPOUSE’S ABILITY TO PAY INTERIM ATTORNEY'S FEES AND EXPENSES... 3

G. DEMONSTRATE THE SOURCES AND MANNER OF PAYMENT OF INTERIM FEES AND EXPENSES... 3

H. OBTAINING INTERIM ATTORNEY'S FEES UNDER TITLE 5 ... 4

I. FACTORS THAT JUDGES CONSIDER IN AWARDING INTERIM ATTORNEY'S FEES AND EXPENSES... 5

J. ADDITIONAL CONSIDERATIONS... 6

K. 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 or Assets...7

2. Segregate Costs and Expenses of Discovery from Interim Attorney’s Fees...8

3. 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... 9

1. Title 1: The Marriage Relationship ...9

2. Title 5: The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship ...10

B. PLEADING FOR ATTORNEY'S FEES... 10

C. PROVING ATTORNEY’S FEES... 10

1. Overview...10

2. Testimony Concerning Attorney’s Fees...11

3. Show Your Client's Inability to Pay and The Opposing Party's Ability to Pay...12

4. 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... 12

1. Suits Under Title 1 ...12

2. Suits Under Title 1 or Title 5 ...13

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

IV. CONCLUSION...14

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Convincing The Court To Award Attorneys Fees Chapter 26

CONVINCING THE COURT TO AWARD ATTORNEYS FEES

I. INTRODUCTION

Other than economic contribution, perhaps there is no greater mystery to the practicing lawyer than what it takes to persuade a court to award attorney’s fees. This article will focus on the manner in which the attorney representing the requesting party can plead and prove attorney's fees that may assist the trial court in making an informed decision on attorney’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 Other Temporary Orders

(a) While a suit for dissolution of marriage is pending and on the motion of a party or on the court’s own motion after notice and hearing, the court may render an appropriate order, including the granting of a temporary injunction for the preservation of the property and protection of the parties as deemed necessary and equitable, and including an order directed to one or both parties:

…

(4) ordering payment of reasonable attorney's fees and expenses; …

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

a. Texas Family Code, Section 105.001

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

…

(5) for payment of reasonable attorney's fees and expenses.

B. Overview

To obtain interim attorney’s fees and expenses, you must:

1. plead for interim attorney’s fees and expenses;

2. prove the amount of and necessity for the fees for your services and related services, sots and expenses;

3. demonstrate the reason that your client does not have the ability to pay for them; 4. demonstrate the other spouse’s ability to

pay for them; and

5. demonstrate the sources of payment for your fees and expenses.

C. Pleading for Interim Fees and Expenses

Without proper pleading, one will not be successful in proving attorney’s fees over a properly lodged objection. It is well established that an attorney seeking fees must affirmatively plead for relief. A general prayer for relief is not sufficient to support an award of attorney’s fees. Klaver v. Klaver, 764

S.W.2d 401, 405 (Tex. App.-Ft. Worth, 1989, no writ).

D. Proving Interim Fees and Expenses

The attorney representing the requesting party must not only plead for interim attorney's fees and expenses, but also convince the trial court that the award of interim fees is necessary to the prosecution of the case and is the fair thing to do.

Presentation and proof of attorney's fees should be made with both oral and documentary evidence to substantiate the claim. One should not simply testify to an hourly rate and an estimate of the number of hours he or she anticipates will be expended. One should be prepared to present a detailed explanation of the work already performed and expenses already paid, as well as the anticipated work to be performed and future expenses to be paid.

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Compensation for a legal assistant's work may be separately assessed and included in the award of attorney's fees if a legal assistant performs work traditionally done by an attorney. Gill Savings

Association v. International Supply Co., 759 S.W.2d 697, 702 (Tex. App.-Dallas 1988, writ denied).

The attorney should present the following:

1. Show tasks performed and legal services rendered and the time required for each by attorney and by legal assistant as of the time of the temporary hearing. Offer your fee contract with your client into evidence as well as a summary of your time records as of the date of the temporary hearing.

2. Present a projection of the future work to be performed prior to trial and at trial by attorney and legal assistant, with an estimate of the time required for each service to be rendered. Present it in the form of a timeline so the court will understand your goal and the manner you seek to achieve that goal.

3. Explain the need to take the other spouse’s deposition and provide an estimate of the time for the preparation for the other spouse’s deposition, for the attorney and the legal assistant, if appropriate.

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

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

6. Provide an estimate of the expense to pay the court reporter for the taking of the deposition. 7. If appraisers will be needed to appraise the

value of the other spouse’s business, explain the need for the appraisers and the estimated cost of the appraisal.

8. If a certified public accountant will be needed to value a business, examine tax records, audit the other spouse’s business records or trace separate property, explain the need for the accountant and provide the estimated expense of the accountant. Consider calling the certified public accountant as a witness so that the accountant can explain his/her fees and the

estimated time required to perform these tasks. 9. In making estimates of time required to

perform legal services for various aspects of the case, give a range of times from a low to a high. For this purpose consider using an exhibit as set forth in Appendix "A", showing an estimate of the tasks that will be required and of the time needed to perform the tasks by the attorney and legal assistant, as well as the anticipated costs and expenses.

10. When presenting your case to the judge on interim attorney's fees, explain the need for pretrial discovery. Demonstrate that your client does not have the financial records in his/her possession and does not have knowledge of or familiarity with the other spouse’s business.

11. If the facts warrant, show the uncooperative attitude of the opposing party or opposing attorney. Perhaps the other spouse has made a statement to the client such as "I will make you work for everything. Nothing will come easy for you or your lawyer. Nothing will be produced voluntarily." Perhaps the other spouse’s attorney has made the same statement to you.

12. If the other spouse has perpetrated acts of violence or made threats of violence against your client, provide the court with evidence to justify the time and effort required to obtain a protective order, temporary restraining order and temporary injunction. 13. If the other spouse has threatened to or

actually hidden property, withdrawn money from accounts, canceled credit cards, locked your client out of the house, cut off the utilities, canceled health insurance or canceled automobile insurance, provide the court with evidence to show the need for a temporary restraining order and temporary injunction to preserve the status quo of property.

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

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

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2. Your client’s lack of funds from which attorney’s fees and expenses can be paid. 3. Your client’s lack of access to community

funds.

4. Your client’s inability to obtain more funds. 5. That your client has paid you nothing to date or

if your client has paid you some money, show the amount of money that he/she has paid and the fact that it is now exhausted.

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

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

8. That your client has not been allowed to write checks and is not on the signature card for any checking or savings account and that other spouse simply gives your client a weekly cash allowance which he/she ceased providing prior to the hearing.

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

It is not enough to simply show your client’s inability to pay your attorneys fees. The attorney for the requesting party now has the critically important task of demonstrating to the court that other spouse has the ability to pay. The attorney for the requesting party should subpoena and have the other spouse bring with him/her to the temporary hearing the following financial records:

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

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

3. Check registers and statements for checking and savings accounts.

4. Copy of recent financial statement filed with bank.

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

available.

6. Copies of credit card statements showing the credit limit for charges and cash advances, amount used and amount available credit. 7. Copy of life insurance policies to determine

the amount of cash value in the policy that could be obtained either outright or by a loan against the policy.

8. Copy of the other spouse’s IRA, profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee savings or other employee benefit plan, which may show an ability to borrow against the plan.

9. Copy of the other spouse’s brokerage records and stock portfolio records in order to determine if there are stocks and bonds that could 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 and individual tax returns.

13. Copies of pay stubs and other records showing the other spouse’s monthly income from all sources.

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

G. Demonstrate the Sources and Manner of

Payment of Interim Fees and Expenses

Demonstrate to the court the sources for payment and the manner in which payment of interim attorney’s fees can be made. Suggested sources are: 1. From available cash as follows:

a) checking account b) savings account c) money market accounts

d) cash on hand at home and in safe deposit box

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2. From cash made available by having the court place the other spouse on a budget. The court has authority to prohibit a party from spending funds beyond an amount the court determines to be for reasonable and necessary living expenses. Texas Family Code, Section

6.502(a)(7).

3. Reducing any voluntary contributions made by the 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 vehicle

b) power boat, wave runners, sail boat, trailer c) motorcycle

d) firearms

6. From a cash advance on credit card. 7. From a loan secured against the following:

a) cash value of life insurance

b) IRA, profit-sharing plan, retirement plan, Keogh plan, pension plan, employee stock option plan, 401(k) plan, employee savings or other employee benefit plan

c) certificate of deposit d) home equity

8. From existing lines of credit or through an unsecured loan.

9. If the other spouse borrowed money on an unsecured note to pay his/her attorney, request that the court order the other spouse to borrow money on an unsecured note in an equal amount to pay your client’s attorney's fees. Alternatively, if the other spouse borrowed money to pay his/her attorney and still has the proceeds of the loan, order the other spouse to pay one-half of the loan proceeds for your client’s attorneys fees and one-half to the other spouse’s attorney.

10. Request that court order the creation of one account, funded by the other spouse, from which both attorneys are paid, subject to the court's approval. Each attorney would present is statement for attorney's fees to the judge in

camera, without a hearing, for the judge to determine the amount to be paid from the one account. By presenting the statements for attorney's fees to the judge in camera, the two attorneys would not be able to keep track of each other’s work.

11. Request that the court order the establishment of two accounts, each funded by the other spouse, one for husband and one for wife, with equal amounts deposited in each account. Essentially, this is a request for matching funds. For every dollar the other spouse pays to his/her attorney for attorney's fees and expenses, the other spouse pays an equal amount for your client’s attorney’s fees.

12. Ask the court to order the establishment of two unequal accounts, both funded by the other spouse, a smaller account for the other spouse and the larger account for your client. The account for your client is larger because of the other spouse’s knowledge and familiarity with his/her business and financial records, as well as the familiarity and knowledge of the other spouse’s attorney and certified public accountant with the other spouse’s business and financial records as compared to the lack of knowledge and familiarity of with the other spouse’s business and financial records by you, your client and your client’s certified public accountant. 13. Request a provision in the temporary orders

that will allow you to come back to the court and ask for additional interim attorney's fees and expenses when the initial amounts ordered have been depleted below a specified level. 14. If all else fails, try the temporary support

approach. In the event there are no existing funds for a present payment of interim attorney's fees, if there is no property to be sold or if the court will not order the sale of property for the payment of interim attorney's fees, or if the court will not order the other spouse to borrow money or take a cash advance on his/her credit card, but if the other spouse has a large monthly income, ask the court to order the other spouse to pay your client a large monthly sum in temporary support, from which interim attorney's fees can be paid.

H. Obtaining Interim Attorney's Fees Under Title 5

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for interim attorneys fees in a suit affecting the parent-child relationship under Title 5 that is not coupled with a suit for dissolution of marriage under Title 1 may be problematic.

Some family law experts believe that an order for interim attorney’s fees is not permitted because there is no community estate and to do so constitutes a taking of the other spouse’s separate estate. Short,

J. Lindsey, Jr. and Joan F. Jenkins, Attorney Fee Panel (Setting and Collecting Fees), p. 8, 25th Annual Advanced Family Law Course, State Bar Professional Development Program (1999). It is

also argued that except for a Title I proceeding, there is no equivalent provision in the law permitting a party to fund his/her lawsuit with another party’s financial resources during the pendency of suit.

No attempt is made to discuss these arguments other than to point out that Title 5 authorizes interim attorneys fees, and the foregoing discussion should be relevant to any action to obtain interim fees and expenses in a suit filed exclusively under Title 5.

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

In 1993, Mike Gregory surveyed the Dallas area trial judges and associate judges to determine the factors those judges felt were important in determining whether to award interim attorney’s fees. In 1999, J. Lindsey Short, Jr. and Joan F. Jenkins surveyed the Houston area judges. The results of these surveys are as relevant today as they were when they were conducted. The factors considered by judges and associate judges are as follows:

1. Relative income of the parties.

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

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

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

5. The acts or threats of one party necessitating the need for protective orders, restraining orders and injunctions and the enforcement of same.

6. Relative earning potential and education of the parties.

7. Sacrifices made by party "A" in order to enable party "B" to obtain greater education and earning potential than party "A". The classic example is the wife quitting college and putting husband through college and medical school.

8. Wasting of community assets by one party. 9. Guideline child support not adequate to

provide for the needs of party "A", compensate by ordering party "B" to pay interim attorney's fees to party "A".

10. Size of the community estate.

11. Type of funds available from which to pay interim attorney's fees. The more liquid the funds, the greater likelihood of an order of interim attorney's fees. A court is more likely to order payment of interim attorney's fees from cash than order property sold to pay interim attorney's fees. On the other hand, a court will order property sold for the payment of interim attorney's fees before the court will order a party to borrow money or take a cash advance for the payment of interim attorney's fees.

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

13. Financial needs of the children.

14. Actions of the parties. How contentious are they? How much work is party "A" and his attorney causing for party "B" and her attorney?

15. The relative experience and skill of the attorneys. Would not order the same amount of interim attorney's fees paid for an inexperienced lawyer as for a board certified family law specialist.

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mountain out of a mole hill and asking for unreasonable amounts of attorney's fees relative to the assets and matters involved. 17. The underlying reason for the request for

interim attorney's fees must be good, justified by fairness, and supported by facts.

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

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

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

21. Whether the requesting party simply wants a "free ride" or is the requesting party accepting responsibility, i.e., taking care of children and/or working, and/or going to school. 22. Will the award of interim attorney's fees

prolong and add expense to what should be a simple divorce?

23. Can the family components still have survival income if interim attorney's fees are awarded? 24. Will the award of interim attorney's fees

exacerbate hostility between parties?

25. Will there be sufficient liquid assets upon completion of the divorce for payment of attorney's fees?

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

27. How much discovery might be required? 28. Are the attorney's fees and expenses

requested really necessary?

29. If the client has contracted to pay a reasonable fee.

30. That the client is bringing the action in good faith.

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

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

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

33. The time limitations that will be imposed by the case.

34. What the attorney for the requesting party has done at the time of the temporary hearing and what will need to be done prior to final hearing. On this note, judges simply are not impressed by a statement of the number of hours worked and anticipated, a quotation of the hourly fee and a multiplication. Judges want detailed, step by step explanation of what needs to be done, should be done, and why. Judges also want to be shown how the attorney's fees and expenses can be paid, the source of funds and means of payment.

Gregory, Mike, Attorney Fees-Interim and Final,

pp. 7-9, 19th Annual Advanced Family Law

Course, State Bar of Texas Professional Development Program (1993); Short, J. Lindsey, Jr. and Joan F. Jenkins, supra pp. 7-8.

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

J. Additional Considerations

As a rule, judges are reluctant to make an express determination whether an attorney’s interim fee request is reasonable at the temporary hearing. However, if an attorney is from a large metropolitan area and charges fees in excess of $175.00 to $200.00 per hour, the attorney should be prepared to meet some resistance in smaller or rural communities where the customary hourly rate is much less.

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

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

Finally, if the judge continues to demonstrate a reluctance to award interim fees and expenses even after a thorough presentation of evidence, you might argue that adjustments can be made in the final property division to compensate for any interim attorney's fees awarded at the temporary hearing. A word to the wise. If you want to know your judge’s history concerning an award of interim fees and expenses, ask other attorneys who have appeared before the judge regarding the judge’s practices. Since the judicial approach to interim fee awards is as varied as the judges themselves, it would be best to know the judge’s practices before going to court.

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

1. Request that the Court Order the Other

Party to Pay Interim Fees from Existing Specified Funds or Assets

Although the case of Ex parte Preston, 347 S.W.2d 938 (Tex. 1961) does not involve the issue of interim attorney's fees and predates the Texas

Family Code, Ex parte Preston does provide some

guidelines where drafting can make a difference. After a hearing on March 2, 1961, the trial court specifically found that William Preston had the sum of $21,705.58 in his possession as a result of the proceeds from the sale of certain community property and ordered Preston to pay said sum into the registry of the court by March 9, 1961. William Preston 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 deferred punishment until final hearing. An order incorporated into the parties' decree of divorce required William to pay the sum of $10,000.00 to the clerk of the court for the use and benefit of his wife, as a condition of his release from custody from the Tarrant County Jail. William filed an application for writ of habeas corpus. The Fort Worth Court of Appeals denied the writ of habeas corpus and held that William Preston was not being imprisoned for nonpayment of a debt because the trial court had specifically found that he had the money in his possession when the trial court ordered that 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 a specific finding that there are existing funds in the possession of the party ordered to pay same and then order the party to pay interim attorney's fees out of the existing funds in the party's possession.

The guidelines of Ex parte Preston were followed in

Ex parte Milstein , No. 05-90-00866-CV (Tex.

App.--Dallas, August 21, 1990) (not published). In the

Milstein case, the trial court ordered interim

attorney's fees be paid by husband to wife in the amount of $220,375.00, in three installments of $73,458.33 each. Upon husband refusing to pay the interim attorney's fees and after an additional hearing, the trial court signed an order entitled "Order in Aid of Enforcement" that found that Milstein owned 123,552 shares of Merrill Lynch Ready Assets money funds having a value of $123,552.00 as of February 23, 1990, in Merrill Lynch Pierce Fenner and Smith, Inc. account No. 689-9784, and bearing taxpayer No. 276-44-8755; and municipal bonds having a value of $425,601.00 as of February 23, 1990, in the same Merrill Lynch account number, bearing the same taxpayer number, and that said taxpayer number was the same as Milstein's Social Security number. The trial court then ordered Milstein to sell 120,375 shares of the Merrill Lynch Ready Asset money funds, which would produce $120,375.00 and to sell a sufficient number of the municipal bonds to produce $100,000.00, and to deposit the proceeds from the sale of the bonds and ready assets into the registry of the court by certified check, payable to the District Clerk 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 Court of Appeals denied Milstein's application for writ of habeas corpus and ordered him to jail until such time as he purged himself of contempt as required by the trial court's commitment order. Although the Dallas Court of Appeals did not publish the case and did not write a full opinion, it did cite one case, Ex

parte Preston, supra.

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registry on or before a specific date.

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

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

Absent an abuse of discovery, an order striking pleadings in order to enforce payment of interim attorney's fees is beyond a court’s authority under Rule 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 a different result in Shirley v. Montgomery, 768 S.W.2d 430 (Tex. App.--Houston [14th Dist.] 1989, orig. proceeding). The trial court entered a temporary order ordering Mrs. Shirley to pay $15,000.00 into an attorney ad litem's trust account for the purpose of being used for discovery costs and expenses in order to represent the best interests of the child, as opposed to being used for attorney's fees. Wife failed to pay the $15,000.00, resulting in the trial court granting a motion for sanctions and ordering wife's pleadings stricken if she did not pay the $15,000.00 into the ad litem's trust fund by a January 23 deadline. The trial court further ordered that wife not be allowed to introduce matters into evidence or call witnesses at the time of trial if the $15,000.00 was not paid as ordered. The Court of Appeals 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 of discovery sanctions could be permitted.

However, the Court of Appeals ruled that since wife's testimony at the contempt hearing clearly showed she did not have the ability to pay $15,000.00, the trial judge abused his discretion when he ordered wife's pleadings stricken under discovery sanctions. The mandamus was conditionally granted to the extent that the trial court was directed to set aside the order striking wife's pleadings and disallowing her offering any evidence or calling any witnesses at trial.

Therefore, it appears by comparing the O'Donnell case and the Montgomery case, if temporary orders are drafted ordering the payment of interim attorney's fees, Rule 215(2)(b) sanctions may not be imposed for nonpayment (O'Donnell). If temporary

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

3. Request the Court Award Interim

Attorney’s Fees as Temporary Child Support or Spousal Maintenance

In Ex parte Kimsey, 915 S.W.2d 523 (Tex. App.-El Paso 1995, orig. proceeding), the trial court awarded interim attorney’s fees as additional temporary spousal support. The trial court used the following language:

As additional temporary spousal support, IT IS ORDERED that ROY EDWIN KIMSEY, JR. shall pay $50,000 into the registry 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 of payment specified in the order. In addition, the Relator, Mr. Kimsey, was ordered to pay child support, temporary spousal support and other payments.

When Mr. Kimsey failed to make the interim attorney’s fee payments, Mrs. Kimsey filed a motion for contempt. The trial court found Mr. Kimsey guilty of separate violations for his failure to pay each of the required biweekly installments. The court further found that he had within his possession community funds that were available to make the payments. Mr. Kimsey was ordered committed to the county jail until he purged himself of contempt by paying the $20,000 into the registry of the court. Mr. Kimsey filed his application for writ of habeas corpus with the Eighth District Court of Appeals in El Paso.

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stated:

Relator suggests that although the order is couched in terms of temporary spousal support, in reality it merely serves the purpose of paying a debt—the attorney’s fees incurred by his wife. Implicit in this argument is the concept that the trial court may not do indirectly what it may not do directly. We disagree. It matters not whether the trial court awards alimony

pendente lite to the wife in order to provide

her with sufficient funds with which to pay her attorney or whether the court orders, as temporary spousal support, that the monies will be paid directly to the attorney for the wife’s benefit or into the registry of the court for disbursement upon application. In each instance, the wife is recouping the benefit of the support award. We note that other courts have recognized a distinction between ordering a spouse to pay a third-party debt and ordering the payment of the debt as temporary spousal support. See, Ex

parte Delcourt, 868 S.W.2d 373 (Tex.

App.-Houston [1st Dist.] 1993, orig. proceeding); Whitt v. Whitt, 684 S.W.2d 731 (Tex. App.-Houston [14th Dist.] 1984, no writ). Accordingly, we find that Relator has not been imprisoned for failure to pay a debt.

Id. at 526.

The Court of Appeals distinguished the holding in

Ex parte Hightower, 877 S.W.2d 17 (Tex.

App.-Dallas 1994, orig. proceeding), in which the App.-Dallas Court of Appeals held that attorneys fees may not be classified as support nor enforced by contempt. In a footnote to its decision in Kimsey, the El Paso Court of Appeals stated:

If a parent has an obligation to support a child [which is considered a legal duty arising from the status of the relationship rather than a debt], and if the court possesses statutory authority to order the payment of attorney’s fees for the safety and welfare of the child, we see no rationale for the conclusion that attorney’s fees may not be ordered paid as child support, particularly where the welfare of the child is in issue as it is in a suit affecting the parent-child relationship.

Id., at 526.

The Court concluded its opinion with the following statement:

The community estate terminates only upon death or divorce, and until a final decree is entered, the spouse in control of the great majority of liquid assets or income cannot avoid payment of interim fees on the constitutional basis asserted here, provided those fees are ordered as temporary spousal support. To hold otherwise disenfranchises the non-employed spouse because it seriously hampers the ability to retain and/or maintain effective legal counsel and necessary expert witnesses.

Id., at 527.

A few carefully chosen words can make a lot of difference in the ability to enforce interim attorney’s fees by contempt. Whitt, Delcourt and Kimsey collectively provide authority to characterize the payment of interim fees and expenses as temporary spousal or child support.

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

A. Legal Authority

1. Title 1: The Marriage Relationship

The Texas Family Code requires the trial court to divide the parties’ estate in a just and right manner, having due regard for the rights of each party and any children of the marriage. TEX. FAM. CODE

ANN. § 7.001.

A trial court’s only basis for awarding attorney’s fees in a divorce action is in making a just and right division of the community estate. Roever v. Roever,

824 S.W.2d 674, 676 (Tex. App.-Dallas 1992, no pet.). The attorney’s fee is a factor to be considered

in making an equitable division of the estate, considering the conditions and needs of the parties and 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 the parent-child relationship and there is no community property estate, the court may not award attorney’s fees to a party. Chiles v. Chiles, 779 S.W.2d 127,

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2. Title 5: The Parent-Child Relationship

and the Suit Affecting the Parent-Child Relationship

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

(a) In a suit under this title, including, the court may order reasonable attorney's fees as costs and order the fees to be paid directly to an attorney.

(b) An award of attorney’s fees may be enforced in the attorney’s own name by any means available for the enforcement of a judgment.

A suit for divorce that involves parents of minor children necessarily includes a suit affecting the parent-child relationship. TEX. FAM. CODE

ANN. § 6.406(b).

Other sections of Title 5 of the Texas Family Code that authorize payment of attorney's fees in suits affecting the parent-child relationship are as follows: 1. Section 107.015 for the award of attorney's

fees to a guardian or attorney ad litem. 2. Section 152.312(a) in an action brought

under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).

3. Section 156.005 for attorney's fees for the frivolous filing of a suit for modification. 4. Section 157.167 for attorney's fees in any

child support enforcement proceeding. 5. Section 160.636(c) for the payment of

attorney's fees in a suit to adjudicate the parentage of a child.

B. Pleading for Attorney's Fees

To be entitled to a discretionary award of attorney’s fees, the movant must file an affirmative pleading requesting them unless the issue is waived or tried by consent. Klaver, supra at 405.

If a person requesting attorney’s fees pleads for a specific 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 request fees, you will not receive them. You should check your pleadings well in advance of trial. If you have

substituted in for another attorney, be certain that you amend your pleadings to request an award of fees in your own name or that of your firm, both for trial 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 pleadings requesting an award of attorney’s fees.

C. Proving Attorney’s Fees

1. Overview

Many of the steps for proving attorney's fees at the final hearing are similar to those for interim attorney's fees. The major difference is that rather than estimating the legal services that will be rendered, the time that will be incurred, and the expenses that will be incurred, at final, you will know legal services that have been rendered, the expenses that have been incurred and the time that has been involved at least through the time of testifying on attorney's fees toward the end of the presentation of your case. Be sure to remember to provide testimony on estimating the time required to prepare and review the decree or order, qualified domestic relations order, medical child support order, income withholding order and other related documents.

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

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

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

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

3. Provide a step-by-step chronology of the tasks performed by the attorney and legal assistant, showing the time required for each task. Provide documentation of the expenses incurred. Provide an exhibit that demonstrates these matters.

4. Show the amounts previously paid by your client.

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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, omissions and failure to cooperate by opposing party and opposing attorney. You can use this as an opportunity to demonstrate how difficult and unreasonable the other party or attorney has been.

8. Provide evidence of the acts of the other attorney and other party that increased the attorney's fees and expenses incurred by your client. For example, if the opposing party did not comply with discovery requests, did not show up for depositions, and you had to obtain protective orders in order to obtain compliance.

9. If the documents provided in response to a request for production came in one or more large cardboard boxes, totally askew, not in the order the records would normally be kept, and not in the order specified in the discovery request, explain the extra time that was required to go through the documents. Point out that Rule 196.3(c), Texas Rules of Civil

Procedure states:

The responding party must either produce documents and tangible things as they are kept in the usual course of business or organize and label them to correspond with the categories in the request.

2. Testimony Concerning Attorney’s Fees

Unless you designate yourself as an expert witness in response to a proper discovery request, you will not be permitted to testify. Similarly, if you plan to call another attorney to testify about the reasonableness of your fees, the attorney must also be designated as an expert. You may be required to furnish your fee agreement and billing statements in response to a request for production of documents. Your failure to furnish these will jeopardize your ability to prove your fees.

Perhaps one of the poorest ways to convince a court to award fees is to request that the Court take judicial notice that a sum of money is a reasonable attorney’s fee. The trial court may not take judicial notice of the reasonableness of attorney's fees in an action that is not under section 38 of the Civil Practice 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 trial court’s having taken judicial notice in a family law case as to the reasonableness of and necessity for attorney’s fees under Rule 201, Texas Rules of

Evidence. In the Interest of Striegler, 915

S.W.2d 629, 644 (Tex. App.-Amarillo 1996, writ denied). The wise attorney should be prepared to

present expert evidence through his/her own testimony and, if deemed necessary, another attorney to support the request for fees.

You may request the court to permit you to testify in narrative form. The trial court can allow testimony in narrative form in order to promote expedition of the hearing and to avoid needless consumption of time. 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, 521 S.W.2d 670, 679 (Tex. Civ. App.-Houston [1st Dist.] 1975, writ ref’d n.r.e.). However, after

finding no reversible error in the trial court’s decision to permit an attorney to testify in narrative form at a bench trial, one appellate court stated that it did not condone narrative testimony and did not encourage its further use. Great Global Assurance

Co. v. Keltex Properties, Inc., 904 S.W.2d 771, 778 (Tex. App.-Corpus Christi 1995, no writ); See also Abramson v. Davenport, 269 S.W.2d 833, 834 (Tex. Civ. App.--Austin 1954, writ ref'd n.r.e.).

If opposing counsel objects to your request to testify in narrative form, argue that the objection is raised for purposes of harassment. Argue as well that requiring testimony in question and answer format unnecessarily prolongs the trial and burden the court’s time. Finally, remind the court that Rule 611(a), Texas Rules of Evidence permits the court to exercise reasonable control over the mode and order of interrogation of witnesses and the presentation of evidence.

The testimony that you give in support of your fee should be viewed from the perspective of educating the court so that the court can make an informed decision about your fee request.

Explain to the court the chronology of services needed, why the services were needed, as well as the time and expense required. You can explain that extra time was spent because of acts of the other party, by not cooperating, by hiding assets, by wasting assets, and other conduct causing your client's attorney's fees to be increased.

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issue of attorney's fees, take the time to carefully select an experienced, highly respected attorney. You may request the court to allow your testifying expert to sit in the courtroom during your testimony on attorney's fees. There is legal authority for allowing an expert to stay in the courtroom and listen to testimony and not be subject to The Rule.

See TEX. R. EVID. 614.

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

3. Show Your Client's Inability to Pay and

The Opposing Party's Ability to Pay

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

4. Show the Court How Attorney's Fees Can

Be Paid

The methodology described for payment of interim attorney’s fees is applicable to a request for final attorney's fees.

By this point in the trial, the court should be very familiar with the assets and liabilities of the parties, earning capacity of the parties, existence of and size of separate estates of the parties and other factors providing the court with options on how final attorney's fees can be paid. You should seek payment of final attorney's fees first from the existing liquid assets, second from the proceeds of the sale of existing assets and finally as a money judgment, which should be secured if possible.

D. Factors To Be Considered in Awarding

Attorney's Fees at the Conclusion of the Case 1. Suits Under Title 1

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

1. disparity of incomes or of earning capacities of the parties;

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

have derived from continuation of the marriage;

4. business opportunities; 5. education;

6. relative physical conditions;

7. relative financial condition and obligations;

8. disparity of ages;

9. size of separate estates; and 10. the nature of the property.

Id. at 698-699.

The current version of the Original Petition for Divorce, Form 3-1, Texas Family Law Practice

Manual, Second Edition, Volume 1, sets forth

twenty-eight factors for the trial court to consider when one party is trying to convince the court that a fair and just division of the community estate would be an unequal division in favor of the requesting party. These factors are based upon Murff and its progeny. 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 of the marriage;

4. disparity of earning power of the spouses and their ability to support themselves;

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 abilities of 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;

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marriage;

19. increase in value of separate property through community efforts by time, talent, labor, and effort;

20. excessive community property gifts to 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 separate estate;

25. the size and nature of the separate estates of the spouses;

26. creation of community property by the efforts or lack thereof of the spouses;

27. actual fraud committed by a spouse; and

28. constructive fraud committed by a spouse.

2. Suits Under Title 1 or Title 5

Rule 1.04, Texas Disciplinary Rules of Professional

Conduct, provides the following factors to be

considered in determining whether a fee is reasonable:

(a) A lawyer shall not enter into an arrangement for, charge, or collect an illegal fee or unconscionable fee. A fee is unconscionable if a competent lawyer could not form a reasonable belief that the fee is reasonable.

(b) Facts that may be considered in determining the reasonableness of a fee include, but not to the exclusion of other relevant factors, the following:

(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;

(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the

locality for similar legal services; (4) the amount involved and the results

obtained;

(5) the time limitations imposed by the client or by the circumstances; (6) the nature and length of the

professional relationship with the client;

(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and

(8) whether the fee is fixed or contingent on results obtained or uncertainty of collection before the legal 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 also Braswell v. Braswell, 476 S.W.2d 444 (Tex. Civ. App.-Waco 1972, writ dism’d).

E. Factors that Judges Consider in Awarding Attorney’s Fees

Factors that courts consider in ordering final attorney's fees, based on surveys conducted by Mike Gregory, J. Lindsey Short, Jr. and Joan F. Jenkins of judges and associate judges, are as follows:

1. Fault in the creation of attorney's fees, as distinguished from fault in the breakup of the marriage.

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

a) causing unnecessary hearings b) causing unnecessary discovery c) unreasonable resistance to discovery d) unrealistic request to the court involving

property division or children

e) failure to accept reasonable settlement offer

3. Will the award of final attorney's fees exacerbate hostility between the parties? If so, and if attorney's fees are justified and there is sufficient property to divide, attorney's fees will be hidden in property award and not be set out as a specific award of attorney's fees.

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part on attorney's experience and qualifications, unless superior qualifications and experience resulted in less lawyer time being expended and the resolution of complex legal issues requiring superior experience and qualifications, in which event the experience and efficiency of the attorney will play a larger part in the award of attorney's fees.

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

6. Relative earning capacity of the parties. 7. How, if at all, could the "best interest" of the

children be affected by an award of attorney's fees?

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

9. The amount and complexity of the legal services required.

10. Ability to pay to attorney's fees.

11. Did one of the parties use custody as leverage to obtain more property? Did one of the parties unnecessarily and unreasonably involve 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 award to achieve a fair division of the parties’ estate. Judges indicated that they will use fees to punish a party who has made the litigation more expensive or vexatious. Judges show some reluctance to award fees in the average case in which the parties are on relatively equal footing and there is no genuine fault. It does not appear that judges will award fees to a party who did not prevail. Short, J. Lindsey, Jr.

and Joan F. Jenkins, supra p. 11. IV. CONCLUSION

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

They are interested ultimately in being perceived as having been fair and impartial. Given the proper circumstances, evidentiary and legal support, judges are more likely to be convinced that the award of attorney’s fees is reasonable, necessary and the fair thing to do.

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

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

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

III. Discovery

a. Interrogatories (propounding and supplementation)

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

b. Document Production Request and Review

Atticus Finch: 30 - 40 hours $6,000 - $8,000 Associate Attorney: 10 - 20 hours $1,250 - $2,500 Legal 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 - $4,000 Associate Attorney: 5 - 10 hours $ 625 - $1,250 Legal Assistant: 5 - 10 hours $ 375 - $ 750

2. The Wife

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

1

Atticus Finch hourly rate: $200.00

2

Associate Attorney hourly rate: $125.00

3

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3. Sam Swindle, Husband’s C.P.A.

Atticus Finch: 2 - 5 hours $ 400 - $1,000 Associate Attorney: 1 - 2 hours $ 125 - $ 250 Legal 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 - $6,000 Associate Attorney: 10 - 20 hours $1,250 - $2,500 Legal Assistant: 10 - 20 hours $ 750 - $1,500

IV. Consultation and planning with experts

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

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

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

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

Atticus Finch: 10 - 20 hours $2,000 - $4,000 Associate Attorney: 10 - 20 hours $1,250 - $2,500 Legal 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 - $10,000 Associate Attorney: 15 - 30 hours $1,875 - $ 3,750 Legal Assistant: 10 - 20 hours $ 750 - $ 1,500

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

IX. Costs

Court reporting $5,000 - $7,000

Business evaluation $2,500 - $5,000

Accounting fees $2,500 - $5,000

Real estate appraisals $2,000 - $4,000 Copies, fax, long distance $2,000 - $4,000 Filing fees, subpoenas, process server $2,000 - $4,000

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