Tucker v. Thomas – Texas Supreme Court Ruling

Attorney’s Fees. You paid your lawyer and now you want your ex-spouse to repay you. There are times when a court can and may give you such an award. On top of that, the court may even deem the attorney’s fees as necessary expenses for a child or children involved in the suit. The result of such a finding is that the award of attorney’s fees may be awarded as additional child support, and enforcement of that award much easier than a mere judgment. However, in December the Texas Supreme Court ruled that in a non-enforcement modification action, no “necessaries” finding or additional child support order of attorney’s fees may be made.

What does that mean for your case? Well, if you are seeking enforcement of the court’s prior order, this ruling doesn’t apply. Your ex-spouse preventing you from seeing your children, or violating an injunction such as allowing a specific person to babysit? Attorney’s fees may still be awarded. These kinds of scenarios are exactly what the term “necessary expended for the child’s benefit” is talking about.

However, is the visitation schedule no longer working because of a change in your work schedule? Is child support no longer anywhere near guidelines? Is your ex-spouses new boyfriend a registered sex offender? These are a few scenarios where you may want to seek a modification, and these are the scenarios at which the court’s ruling on attorneys’ fees is aimed. The specific case was about changing custody from the mother to the father. The trial court denied that change, increased the father’s child support and decreased his visitation schedule. The trial court also awarded the mother an amount of her attorney’s fees be repaid as additional child support. The Texas Supreme Court’s overturned this last provision, and sent the case back to the trial court to amend its ruling to comply with this new law.

If you are seeking a change in your child custody orders, this new ruling is something to bear in mind. When orders are already in place, and all that you are asking the court to do is change them, any attorney’s fees award will not be additional child support, rather it will be a judgment, which is barely worth fighting to get. One final note: the court’s ruling makes clear that it can be overturned by the legislature.