Opinions, September 29, 2015

The Fourteenth Court of Appeals released its published opinion in Russell v. Russell, No. 14-13-01100-CV, which is actually the case’s second trip upstairs, making it Russell II. Disclosure: Appellee David Christopher Russell was represented by my estimable colleague Ashley V. Tomlinson.

Janna and Chris divorced in 2008. Janna filed an enforcement in 2009 which resulted in Russell I. As told in Russell I, the trial court awarded Janna a judgment for $1,224.00 for unreimbursed medical expenses incurred on behalf of a child and $15,799.00 for funds previously ordered to be paid into an Amegy UGMA. The trial court did not award Janna the additional child support arrearages she sought or attorney’s fees. In Russell I, Janna sought attorney’s fees and costs based on command language in Tex. Fam. Code sec. 157.167. The statute provides that the trial court may waive the command if good cause is shown and the trial court states the reasons supporting the good cause finding on the record. The Court of Appeals held in Russell I that the trial court abused its discretion by failing to award attorney’s fees without stating good cause. Chris appealed to the Supreme Court, but review was denied.

On remand, Janna moved for an award of the additional arrearage and fees pursuant to Russell I and requested a hearing on the motion. The trial court declined to hold a hearing. Its order on September 10, 2013 awarded Janna judgment for $166.78 but denied Janna’s request for fees, stating “The Court finds that David Christopher Russell is not in contempt, therefore, awards no attorneys fees. Attorney fees are denied at this time.” At a hearing on Janna’s motion for new trial, the trial court stated he did not believe an award of fees was appropriate and, had the Court of Appeals believed fees should have been awarded and the record established the amount, it would have reversed and rendered instead of remanding. The trial court also stated the fees requested were excessive but apparently also stated he believed “those fees were reasonable” and should be paid by Janna, but not Chris. Upon request of both parties, the trial court filed findings of fact and conclusions of law. Janna appealed.

Janna argued the Court of Appeal’s mandate instructed the trial court to award her fees, that fees under 157.167 were mandatory absent good cause stated on the record. Chris argued the Russell I opinion and mandate contain no language instructing the trial court to award Janna fees of $122,195.00–which the Court of Appeals agreed with–but disagreed with Chris’s argument that section 157.167 was not triggered because the requested fees were unreasonable. “Absent a specific finding that the respondent has shown good cause to not pay attorney’s fees, and the court stating the reasons supporting such a finding, the court is required to award reasonable attorney’s fees to the movant.” Additionally, the court noted it may not “imply a finding of good cause to support the trial court’s judgment.”

Ultimately, the Court of Appeals remanded, giving the trial court very specific instructions upon its duties. The exasperation between the lines is palpable, including the ominous last note. The trial court is ordered to: 1) hear evidence on Janna’s fee request, including segregation of fees; 2) determine the reasonable fees and costs Janna is entitled to recover for the child support claims on which she recovered under sec. 157.167 or state the reasons supporting a finding of good cause on the record; 3) determine whether Janna is the successful party under the fee-shifting provision incorporated into the decree as a result of her UGMA claim and any reasonable fees; and 4) determine whether and to what extent Janna is entitled to fees resulting from the second remand “including appellate attorney’s fees for a third appeal, if sought.”

As with Robert Downey Jr.’s Sherlock Holmes series, whether or not there will be a third installment remains to be seen.

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