Unreported / Non-Citable
Background
In a suit to modify the parent-child relationship, the trial court revised the parties’ possession schedule and ordered Mackinsey Lynn Johnson to pay Samuel Austin Spivey’s attorneys’ fees. Johnson appealed that modification order and separately asked the trial court to suspend enforcement of the possession provisions while the appeal remained pending.
Spivey sought temporary orders requiring Johnson to pay his appellate attorneys’ fees. The trial court denied Johnson’s requested relief and ordered her to pay Spivey $8,839.50 and $40,200 by August 10, 2026, also awarding him money judgments in those amounts. Johnson petitioned for mandamus, and the court of appeals temporarily stayed the fee provisions while considering her petition.
The Court’s Holding
The court conditionally granted mandamus. It first held that Johnson preserved her challenge by repeatedly objecting that the evidence did not establish that the fees were necessary to preserve and protect the child’s safety and welfare during the appeal. It also held that Johnson lacked an adequate appellate remedy because the temporary order required immediate payment; the appellate court’s interim stay did not change the character of that order or make payment reversible after compliance.
On the merits, the court held that the evidence was insufficient under Texas Family Code Section 109.001. Spivey testified that paying his own fees could lower the household’s standard of living, but he would continue providing the child’s clothing, food, school supplies, medical care, and housing. His concerns about continued litigation and his ability to retain appellate counsel did not show that shifting his fees to Johnson was necessary to protect the child’s safety or welfare during the appeal.
The court directed the trial court to vacate the provisions requiring Johnson to pay the two fee amounts and the corresponding money judgments within 21 days. The writ would issue only if the trial court failed to comply.
Key Takeaways
- A request for appellate attorneys’ fees under Section 109.001 requires proof that the award is necessary to preserve and protect the child’s safety and welfare during the appeal.
- Evidence of reduced discretionary spending, litigation costs, or difficulty retaining appellate counsel does not by itself satisfy that statutory standard.
- An order requiring immediate payment of appellate fees may lack an adequate remedy by appeal even when an appellate court temporarily stays enforcement.
Why It Matters
The decision distinguishes the child-safety-and-welfare standard governing temporary appellate orders from a broader best-interest inquiry. A parent seeking fee shifting must connect the requested payment to protecting the child during the appeal, rather than merely showing financial strain or the importance of defending the judgment.
The opinion also confirms that mandamus may provide meaningful review of an immediately payable fee award because compliance cannot practically be undone after the fact.