NAGUIB v. NAGUIB

Citation Codes

Equivalent Citations

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Docket Number

No. 05-05-00496-CV.

Attorney(S)

Judith A. Grantham, Carrollton, for Appellant. John J. Pfister, Pfister Associates, Frisco, for Appellee.

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Smart Summary

Factual and Procedural Background

The parties, Mona Naguib (Appellant) and Latif Naguib (Appellee), were divorced on February 6, 2003. On August 6, 2004, the appellee filed a petition to modify the parent-child relationship. A jury trial was held, and on January 7, 2005, the trial court entered a final judgment modifying the conservatorship of the child. The trial court also assessed attorney's fees of $7,500 against the appellant, characterizing these fees as "for legal services rendered in relation to the child and in the nature of child support." The appellant appealed, challenging the trial court's characterization of the attorney's fees as child support.

Legal Issues Presented

Whether the trial court erred in characterizing the attorney's fees assessed against the appellant as "in the nature of child support" in a suit modifying the parent-child relationship.

Arguments of the Parties

Appellant's Arguments

The appellant does not dispute the assessment or amount of attorney's fees and costs but challenges the trial court's legal characterization of these fees as child support.
She contends that Texas law prohibits assessing attorney's fees and costs as child support in suits to modify the parent-child relationship.

Appellee's Arguments

The appellee asserts that attorney's fees awarded in suits affecting the parent-child relationship may be denominated as necessaries to the children, relying on cases such as In the Interest of A.J.L. and E.M.L. and London v. London.
This argument is premised on the parental obligation to support minor children.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Finley v. May, 154 S.W.3d 196 (Tex.App.-Austin 2004, no pet.)	Standard of review for attorney's fees awarded as child support; distinction between fees in enforcement vs. modification suits.	Used to support de novo review of the trial court's legal conclusion and to distinguish attorney's fees in modification suits from enforcement suits.
In re Moers, 104 S.W.3d 609 (Tex.App.-Houston [1st Dist.] 2003, no pet.)	Clarifies enforcement mechanisms and distinction of attorney's fees in child support enforcement versus modification.	Supported the court's analysis that attorney's fees in modification suits cannot be treated as child support enforceable by contempt.
Hardin v. Hardin, 161 S.W.3d 14 (Tex.App.-Houston [14th Dist.] 2004, pet. granted, judgment vacated w.r.m.)	Standard of review for attorney's fees awarded as child support in non-enforcement cases (abuse of discretion).	Mentioned to highlight conflicting appellate standards, but the court chose de novo review.
London v. London, 94 S.W.3d 139 (Tex.App.-Houston [14th Dist.] 2002, no pet.)	Attorney's fees as necessaries to the child and parental obligation to support.	Distinguished by the court as addressing recovery of fees as necessaries, not the characterization as child support.
In the Interest of A.J.L. and E.M.L., 108 S.W.3d 414 (Tex.App.-Fort Worth 2003, pet. denied)	Attorney's fees as necessaries to the child based on parental obligation.	Distinguished similarly; did not address enforcement or characterization as child support fees.

Court's Reasoning and Analysis

The court began by identifying that the appellant did not dispute the amount or assessment of attorney's fees but challenged the legal characterization of those fees as child support. The court reviewed this legal conclusion de novo, citing Finley v. May and In re Moers. It noted that Texas law distinguishes between attorney's fees awarded in child support enforcement actions and those awarded in suits modifying the parent-child relationship. Specifically, attorney's fees in enforcement actions may be enforced by contempt and withholding earnings, while fees in modification suits are treated as judgment debts enforceable like other debts, without the special enforcement mechanisms applicable to child support.

The appellee's reliance on cases treating attorney's fees as necessaries to the child was found inapposite because those cases did not address the characterization or enforcement of attorney's fees as child support. The court emphasized that the appellee's fees were incurred solely in the modification suit, with no enforcement of delinquent child support obligations involved. As such, there was no legal or factual basis to characterize the fees as child support.

Accordingly, the court modified the trial court's order to delete any characterization of the attorney's fees as "in the nature of child support," holding that the fees should be assessed only as a judgment debt.

Holding and Implications

The court affirmed the trial court's order as modified, deleting the characterization of attorney's fees as "in the nature of child support."

The direct effect of this decision is that the $7,500 attorney's fees awarded against the appellant are enforceable as a judgment debt rather than as child support. This distinction affects the enforcement mechanisms available but does not alter the obligation to pay. The opinion does not establish new precedent beyond clarifying the proper legal characterization of attorney's fees in modification suits.

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Mona NAGUIB, Appellant v. Latif NAGUIB, Appellee.

OPINION

Opinion by Justice LANG.

The parties were divorced on February 6, 2003. On August 6, 2004, appellee filed a petition to modify the parent child relationship. A jury trial was held and a final judgment modifying the conservatorship of the child was entered on January 7, 2005. Additionally, the trial court assessed attorney's fees of $7,500 against appellant and ordered that the attorney's fees were "for legal services rendered in relation to the child and in the nature of child support." On appeal, the appellant asserts that the trial court erred when it ordered the assessment of attorney's fees "in the nature of child support." For the following reasons, we modify the trial court's order to delete all characterizations of the attorney's fees as "in the nature of child support" and, as modified, affirm the order.

I. Standard of Review

Appellant does not challenge the order assessing against her attorney's fees and costs, nor the amount at which they were assessed. However, she challenges the trial court's characterization of these fees and costs as being "in the nature of child support." She contends that Texas law prohibits assessing attorney's fees and costs as "child support" in a suit to modify the parent-child relationship. Awarding attorney's fees in the nature of child support is a legal conclusion. Accordingly, we review the trial court's order de novo. See Finley v. May, 154 S.W.3d 196, 197-199 (Tex.App.-Austin 2004, no pet.); In re Moers, 104 S.W.3d 609, 611 (Tex.App.-Houston [1st Dist.] 2003, no pet.).

Texas appellate courts disagree about the appropriate standard of review when attorney's fees are awarded as child support in non-enforcement cases. The Fourteenth Court of Appeals has stated that it reviews the award of attorney's fees in the nature of child support for an abuse of discretion. Hardin v. Hardin, 161 S.W.3d 14, 18-19 (Tex.App.-Houston [14th Dist.] 2004, pet. granted, judgm't vacated w.r.m.); London v. London, 94 S.W.3d 139, 146 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

II. Applicable Law

The legislature specifically distinguished between the assessment of fees and costs in child support enforcement actions as opposed to assessment of attorney's fees and costs in modification suits because of the potentially serious consequences that stem from an award of attorney's fees as child support. See TEX. FAM. CODE ANN. §§ 106.002, 157.167 (Vernon 2006); Finley, 154 S.W.3d at 197. In a suit affecting the parent-child relationship, the trial court has the discretion to "render judgment for reasonable attorney's fees and expenses" and such fees may be enforced "by any means available for the enforcement of a judgment for debt." TEX. FAM. CODE ANN. § 106.002. Texas law prohibits imprisoning a person for debt. TEX. CONST. art. I § 18. Attorney's fees awarded in a suit involving child support enforcement are not viewed as debt and may be enforced by contempt. TEX. FAM. CODE ANN. § 157.167; see also Finley, 154 S.W.3d at 199; Moers, 104 S.W.3d at 611. Additionally, attorney's fees awarded in a suit seeking enforcement of child support may be collected by withholding earnings of the party against whom the award is assessed. TEX. FAM. CODE ANN. § 158.0051 (Vernon 2006).

III. Analysis and Conclusion

Appellee asserts that attorney's fees awarded in a suit affecting the parent-child relationship may be denominated as necessaries to the children. See In the Interest of A.J.L. and E.M.L., 108 S.W.3d 414, 421-22 (Tex.App.-Fort Worth 2003, pet. denied); London, 94 S.W.3d at 146. This proposition is premised on the concept that a parent has an obligation to support her minor children. A.J.L., 108 S.W.3d at 422. However, the A.L.J. and London cases are distinguishable from the issue and facts before us. Those cases focus solely upon the recovery of attorney's fees as "necessaries to the child." They do not address the precise issue before us which is the characterization of, and enforcement of, attorney's fees as child support.

In the case before us, the appellee sought to modify the conservatorship of the child and the attorney's fees awarded the appellee were incurred only in pursuing the suit to modify the parent-child relationship. The record does not reflect any claims for enforcement of delinquent child-support obligations. TEX. FAM. CODE ANN. §§ 106.002, 157.167; Finley, 154 S.W.3d at 197. Consequently, there is no basis in the facts or the law to characterize the award of attorney's fees as "in the nature of child support." We decide in appellant's favor on his issue. Accordingly, we modify the order regarding attorney's fees in the amount of $7,500 to assess them only as a judgment debt, not as child support.

The trial court's order is affirmed as modified.