The non-prevailing party may be awarded attorney’s fees

Archive, Blog, Brad M. LaMorgese

On December 9, 2015, the San Antonio Court of Appeals considered dueling claims for attorney’s fees in In re R.E.S. Mother petitioned to modify a prior divorce decree to gain the exclusive right to designate the primary residence for both of her children and sought fees. Father also sought fees. The jury granted Mother the exclusive right to designate the Daughter’s primary residence, but not for the Son. The jury then recommended $50,000 as a reasonable fee for the legal services of both Mother and Father. The trial court followed the jury’s verdict regarding appointment of the right to designate each of the children’s primary residence. However, the trial court did not follow the jury’s recommendation for attorney’s fees and awarded the Father $50,000 in attorney’s fees.

Mother argued that because Father incurred additional attorney’s fees through his slow compliance and because Father was not the prevailing party the trial court abused its discretion. The Court of Appeals was unable to determine that Father used dilatory tactics which resulted in an increase of attorney’s fees because both parties presented controverting arguments. The Family Code does not restrict a Court from awarding attorneys fees to the nonprevailing party. However, the Court of Appeals held that Mother is not the prevailing party because her motion to modify did not succeed in regards to the Son. The Court of Appeals upheld the trial court’s award of attorney’s fees to Father.