Danny Nixon v. Lorraine DaSilva

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00166-CV

Danny Nixon, Appellant

v.

Lorraine DaSilva, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 53RD JUDICIAL DISTRICT
NO. 99-002345, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION

Danny Nixon appeals an October, 2006 order in a suit to modify the parent-child

relationship. Nixon and appellee Lorraine DaSilva were parties to a 1999 final divorce decree in

which DaSilva had been appointed managing conservator of their two children and Nixon possessory

conservator. Nixon was also ordered to pay child support. In March 2006, DaSilva filed a petition

to modify the parent-child relationship by increasing Nixon’s child support obligation. Nixon filed

a counter-petition seeking to be named managing conservator with the right to establish the

children’s residence and requesting that DaSilva pay child support. Following a jury trial, the

district court ordered that the parties be appointed joint managing conservators of the children

and that DaSilva have the right to determine the children’s primary residence and to receive

child support. Although apparently modifying Nixon’s child support obligation, the order recited

that, “IT IS AGREED that as of August 31, 2006, [Nixon] is not in arrears for child support
payments owed to [DaSilva] for the support of the children . . . and no child support arrearage exists

as of August 31, 2006.”

The district court ordered Nixon to pay DaSilva’s attorney’s fees, expenses, and costs.

The court further ordered that the “attorney’s fees, expenses, and costs were incurred in relation to

the children” and “are in the nature of child support,” although it also referred to the obligation

as a “debt.” In a single issue on appeal, Nixon argues that the district court erred in assessing

DaSilva’s attorney’s fees and costs “as child support” because the suit did not involve enforcement

of delinquent child support. We agree. We will modify the trial court’s order to delete the

characterization of attorney’s fees “as child support,” and, as modified, affirm.

The family code provides that, in a suit affecting the parent-child relationship, the

trial court “may render judgment for reasonable attorney’s fees and expenses.” Tex. Fam. Code Ann.

§ 106.002 (West Supp. 2008). Such an award “may be enforced in the attorney’s name by

any means available for the enforcement of a judgment for debt.” Id. § 106.002(b). Because the

Texas Constitution prohibits imprisonment for debt, such a fee award cannot be enforced by a

confinement order under the court’s contempt powers. In re Henry, 154 S.W.3d 594, 596

(Tex. 2005). However, a child support obligation is considered a legal duty and not a debt and, thus,

can be enforced by contempt. Id. Furthermore, the legislature has provided that in a child support

enforcement action, “if the trial court finds that the respondent has failed to make child support

payments, the court shall order the respondent to pay the movant’s reasonable attorney’s fees and all

court costs,” and such fees and costs “may be enforced by any means available for the enforcement

of child support, including contempt.” Tex. Fam. Code Ann. § 157.167(a) (West Supp. 2008).

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In this way, attorney’s fees may be assessed as child support during child support

enforcement proceedings and enforced by contempt. Finley v. May, 154 S.W.3d 196, 199

(Tex. App. Austin—2004, no pet.).

Nixon does not challenge the order directing him to pay DaSilva’s attorney’s fees and

costs, nor the amount at which such fees and costs were assessed. Rather, he contends only that

the district court erred in ordering Nixon to pay these amounts “in the nature of child support.”

The decision to award attorney’s fees in the nature of child support is a legal conclusion that we

review de novo. Id. at 198.

In Finley, this Court observed that “the legislature specifically distinguishes between

the assessment of fees and costs in enforcement actions as opposed to modification suits because of

the potentially serious consequences that stem from an award of fees as child support”—namely that

“attorney’s fees awarded as child support are not viewed as debt and may be enforced by contempt.”

Id. (citing Tex. Fam. Code Ann. § 157.167). Because we determined that the attorney’s fees at

issue in Finley were awarded in a suit to modify the parent-child relationship and not to enforce

delinquent child support payments, we held that the trial court erred in assessing attorney’s fees as

child support. Id.

Finley controls this case, and requires a similar disposition. The district court

awarded attorney’s fees to DaSilva in connection with a suit to modify the parent-child relationship

that did not involve the enforcement of delinquent child support payments. Neither party’s pleadings

complained of or requested enforcement of delinquent child support. Furthermore, the

district court’s order explicitly states that Nixon “is not in arrears for child support payments”

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and “no child support arrearage exists.” There is nothing in the record to indicate that this suit

involved enforcement of delinquent child support. Finally, while not dispositive, we note that

DaSilva has not submitted a brief or other filing on appeal to contend otherwise.

We agree with Nixon that the district court erred in characterizing DaSilva’s

attorney’s fees and costs as child support. Accordingly, we modify the district court’s order to

remove the statement that DaSilva’s attorney’s fees, expenses, and costs “are in the nature of child

support.” As modified, we affirm the order.

____________________________________________

Bob Pemberton, Justice

Before Chief Justice Law, Justices Pemberton and Waldrop

Modified and, as Modified, Affirmed

Filed: August 22, 2008

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