Scarlett Rebecca Kogel v. Thomas Wyatt Robertson--Appeal from 250th District Court of Travis County
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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-04-00246-CV
Scarlett Rebecca Kogel, Appellant
v.
Thomas Wyatt Robertson, Appellee
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 250TH JUDICIAL DISTRICT
NO. 99-11464, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING
MEMORANDUM OPINION
This appeal arises from a suit to modify a custody order and a child support
enforcement action. During the original suit affecting the parent-child relationship, the district court
appointed appellee, Robertson, the child’s father, as sole managing conservator and appellant, Kogel,
the child’s mother, as the possessory conservator. Kogel brought suit to modify the custody order.
Robertson counter-petitioned for his own desired modifications and sued to enforce Kogel’s child
support obligations. The district court ruled against Kogel on the modification and child support
enforcement issues, and held Kogel in contempt for failing to obey an earlier court order. This
appeal followed. For the reasons discussed below, we modify the child support enforcement order
and, as modified, affirm the district court’s orders.
BACKGROUND
In late 1999, Robertson filed for divorce from his wife, Kogel. At the time, their
daughter, C. R., a U.S. citizen, was one year old. During the custody dispute, Kogel accused
Robertson of sexually abusing C. R.. The district court appointed experts to investigate the
allegation, and ordered Kogel to bring the child to court by November 30, 2001 and to cooperate
with the experts assigned to the case. In November 2001, Kogel disobeyed the court order and fled
with C. R. to Belgium before the court date.
The original suit affecting the parent-child relationship (“SAPCR”) was heard in a
bench trial in early February 2002. The district court found that the charges of sexual abuse were
false and lacked a factual basis; that Kogel failed to deliver C. R. as ordered by the court; and that
Kogel retained C. R. outside of the United States with the intent to obstruct the exercise of
Robertson’s parental rights, which constituted unlawful interference with a custody order. The court
further found that C. R. had been present in Austin, Texas, for an amount of time sufficient for
acclimatization; that C. R.’s retention outside of the United States put the child at great risk of
psychological harm and placed the child in an “intolerable” situation; and that if the child were
returned to Robertson, these harms would be alleviated.
On February 6, 2002, the court ordered Kogel to bring C. R. back to Robertson in
Texas, and appointed Robertson as the sole managing conservator and Kogel as possessory
conservator of C. R.. The order also required C. R. and Kogel to seek psychological and psychiatric
treatment. The treatment costs were taxed to Kogel. The court found that the standard possessory
order was not in the best interest of the child and permitted Kogel to see C. R. at least twice a month,
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but only under supervised and secure conditions. Kogel was ordered to post a $10,000 bond, payable
to Robertson, as a security measure for Kogel’s visitations.
The court ordered Kogel to pay Robertson $156 per month in child support and
permanently enjoined Kogel from interfering with Robertson’s parental rights. Kogel was also
assessed a statutory $500 penalty for filing a false child abuse report. The order awarded Robertson
approximately $52,000 in attorney’s fees and taxed the court costs as well as the ad litem attorney’s
fees to Kogel. Kogel’s motion for a new trial was overruled. The judgment became final and was
not appealed.
A Belgian trial court began proceedings to enforce the Texas judgment on August 23,
2002. The Belgian court found the custody aspects of the order enforceable, but declined to enforce
its monetary provisions. An appeal was taken to the Belgian Court of Appeals, which found in favor
of Robertson on May 13, 2003, and ordered C. R. returned to the United States under the Hague
Convention.1
On August 8, 2003, Kogel filed a petition to modify the February 6, 2002 order in
Travis County on the grounds that circumstances had materially and substantially changed since the
date the order was entered. Robertson filed his own counter-petition to modify the custody order and
filed a motion to enforce the child support provisions. In November 2003, the district court, in a
bench trial, heard the custody modification and child support enforcement actions. Some of the
inquiry focused on the intent behind Kogel’s decision to leave the country with C. R. in defiance of
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Hague Convention of 25 October 1980 on Civil Aspects of International Child Abduction
(multilaterial international treaty of which both Belgium and the United States are signatories,
implemented by Congress in the International Child Abduction Remedies Act, and codified at 42
U.S.C. §§ 11601-11610 (1988)).
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the court’s SAPCR orders; the court expressed concerns for Kogel’s ability to follow future court
orders. The district court directly questioned Kogel as a witness on several occasions, including
soliciting Kogel’s opinion about what circumstances have changed to warrant modifying the custody
and child support orders.
The district court issued its modification and child support enforcement orders on
August 25, 2003. Pursuant to the section of the family code that incorporates the provisions of the
Hague Convention, the court found evidence of a grave risk of international child abduction based
on Kogel’s previous flight and adopted appropriate safeguards to protect the child from a future
international abduction. See Tex. Fam. Code Ann. §§ 153.501-.03 (West Supp. 2004-05). The
district court modified the February 6, 2002 custody order: it found that changing the conservatorship
arrangement was unwarranted but permitted Kogel increased access to C. R.; it ordered each parent
to pay half of the visitation security and psychiatrist fees; and it ordered Kogel to post a $100,000
bond payable to Robertson to pay for C. R.’s recovery if Kogel abducts her again. See id.
§ 153.503(6). The modified order cancelled Kogel’s and C. R.’s required psychological treatments
under the February 6, 2002 order but ordered Kogel to reimburse Robertson for unpaid security
costs.
In its child support enforcement order, the court held Kogel in contempt of the
original order for failing to surrender C. R. at the appointed date and time and sentenced Kogel to
180 days in jail. The court suspended the sentence on the condition that Kogel comply with all of
the terms of the child support enforcement order for two years. Kogel was ordered to pay $3,327
in back child support, execute the $100,000 bond, refrain from interfering with the exercise of
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Robertson’s parental rights, and jointly with Robertson, pay the ad litem’s fees. The enforcement
order also required Kogel to pay Robertson’s attorney’s fees incurred for the custody and child
support enforcement actions; the order characterized the entire attorney’s fees award as “in the nature
of child support,” the nonpayment of which would result in contempt of court and be punishable by
confinement or fine. This appeal followed.
DISCUSSION
Kogel appeals the district court’s final order in five issues: (1) whether Kogel is
entitled to a new trial because she was denied a fair and impartial trial; (2) whether there is sufficient
evidence to establish that circumstances have materially and substantially changed and warrant a
modification in the custody order; (3) whether the evidence was legally and factually insufficient to
support the award of attorney’s fees; (4) whether the district court erred in characterizing the award
of attorney’s fees as child support; and (5) whether the district court erred in conditioning the
suspension of Kogel’s contempt sentence on Kogel’s compliance with the terms of the order.
Fair and Impartial Trial
Kogel complains that she did not receive a “fair and impartial trial” because the
district court judge improperly questioned her from the bench, impermissibly made himself a witness
in violation of the Texas Rules of Evidence, and was not a fair and impartial magistrate. Kogel
asserts that these errors reflect judicial impropriety, probable prejudice, and amount to the court
unlawfully “punishing” Kogel for disobeying the Texas courts.
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Our review of the record indicates that Kogel did not timely object to the judge’s
direct questioning and thus failed to preserve this issue for review. See Tex. R. App. P. 33.1
(objections must be timely made); Tex. R. Evid. 103 (evidentiary objections must be timely made).
Kogel cannot resurrect the unpreserved error by raising this complaint in her motion for new trial.
See G.T.E. Mobilnet of S. Tex. P’ship v. Pascouet, 61 S.W.3d 599, 613 (Tex. App.—Houston [14th
Dist.] 2001, pet. denied).2
Kogel next asserts that the judge improperly testified as a witness at the trial, violating
rule of evidence 605, which provides, “The judge presiding at the trial may not testify in that trial
as a witness. No objection need be made in order to preserve the point.” Tex. R. Evid. 605. The
purpose of rule 605 is to preserve the judge’s impartiality. In re O’Quinn, 77 S.W.3d 438, 448 (Tex.
App.—Corpus Christi 2002, no pet.). Thus, the judge may not “step down from the bench and
become a witness in the very same proceeding over which he is currently presiding.” Hensarling
v. State, 829 S.W.2d 168, 171 (Tex. Crim. App. 1992).
During the November 2003 modification trial, Kogel testified that her niece
maintained a website that described in detail Kogel’s version of the events and circumstances
2
We note that even if Kogel had properly preserved this point of error for our review, she
would not prevail. At least in the bench trial below, the district court judge acted appropriately when
he questioned Kogel as a witness. See Cason v. Taylor, 51 S.W.3d 397, 413 (Tex. App.—Waco
2001, no pet.) (it is ordinarily proper for judge to ask witness competent and material questions to
elicit evidence not otherwise presented or to clarify testimony); Hudson v. Hudson, 308 S.W.2d 140,
142 (Tex. Civ. App.—Austin 1957, no writ) (trial judge’s lengthy and vigorous examination of
witness was proper; judge’s active role is more appropriate in bench trial than a jury trial); Conley
v. St. Jacques, 110 S.W.2d 1238, 1241 (Tex. Civ. App.—Amarillo 1937, writ dism’d) (family code
and Texas jurisprudence impose upon trial judge duty to inquire into all matters that would throw
light upon fitness of person who seeks custody and environment into which child would be relegated
by court’s order).
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surrounding the custody dispute, including Kogel’s account of Robertson’s alleged sexual abuse of
C. R. and her views of the Texas justice system. Although the attorney ad litem offered to admit the
documents herself, the district judge authenticated and admitted his printouts of the relevant website
content as exhibits. Kogel did not object at trial to the authentication or admission of the exhibits.
Kogel argues that the judge effectively became a trial witness when he authenticated and admitted
his own exhibits, violating rule 605.
We hold that the district court did not violate rule 605 because the judge did not
testify as a witness at the trial. We further note that the improper admission of or comment on
evidence constitutes an ordinary trial error that must be preserved to be reviewed on appeal. See In
re M.S., 73 S.W.3d 537, 539-40 (Tex. App.—Beaumont 2002), aff’d in relevant part, 115 S.W.3d
534 (Tex. 2003). Kogel made no such objection at trial.
Last, Kogel asserts that she is entitled to a new trial because the judge was not a
“neutral and detached magistrate,” and thus Kogel was denied a fair and impartial trial. Kogel
characterizes the questions that the district court asked her as “aggressive”and “intense,” and cites
this as evidence of the judge’s partiality. Kogel also alleges that the prominence in the local legal
community of Robertson, a local lawyer, and his father, a law professor of some note at the
University of Texas, improperly influenced the judge’s decision.
Parties have a right to a fair trial under the United States and Texas constitutions.
Metzger v. Sebek, 892 S.W.2d 20, 37 (Tex. App.—Houston [1st Dist.] 1994, writ denied). One of
the most fundamental components of a fair trial is “a neutral and detached judge.” Id. We review
the entire record for evidence of improper conduct. Id. at 39. To reverse a judgment on the ground
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of improper conduct of or comments by the judge, we must find (1) judicial impropriety in fact
occurred and (2) the complaining party suffered probable prejudice. Id.
We have reviewed the record in its entirety for evidence of the judge’s partiality or
other improper conduct, paying close attention to the excerpt Kogel emphasizes in her brief. The
excerpt recites testimony Kogel gave in response to questions asked by the judge about Kogel’s
motivations to flee the country with C. R. in defiance of the court order, and about Kogel’s niece’s
website content. We find no evidence in the record that the judge exhibited partiality or bias against
Kogel; the judge did not improperly become an advocate during his direct questioning nor do we find
evidence in the record that suggests that the Robertsons’ involvement in the legal community
influenced the judge’s conduct at trial. See id. Asking witnesses questions directly from the bench
is appropriate, especially in family law cases and bench trials. Cason v. Taylor, 51 S.W.3d 397, 413
(Tex. App.—Waco 2001, no pet.); Hudson v. Hudson, 308 S.W.2d 140, 142 (Tex. Civ.
App.—Austin 1957, no writ); see also Conley v. St. Jacques, 110 S.W.2d 1238, 1241 (Tex. Civ.
App.—Amarillo 1937, writ dism’d). We overrule Kogel’s first issue.
Modification of Parent-Child Relationship
In her second issue, Kogel asserts that the district court erred when it modified the
custody order denying the relief requested by Kogel and granting the modifications sought by
Robertson. Kogel argues that the circumstances surrounding the parties have materially and
substantially changed since the original February 6, 2002 order issued. Kogel also challenges the
modified order as an abuse of discretion and argues that the evidence supporting the modification
is legally and factually insufficient.
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Kogel asked the district court to modify the original custody order by: appointing
Kogel as joint managing conservator with the primary right to choose residence of the child;
awarding her an equitable portion of the costs of changing C. R.’s residence; retroactively decreasing
her child support obligation; and awarding her attorney’s fees. The district court modified the
custody order to permit Kogel increased access to C. R. and to cancel Kogel’s required psychological
treatments. The court further ordered each parent to pay half of the visitation security and
psychiatrist fees, and ordered Kogel to post a $100,000 bond to cover the costs of recovering C. R.
if she abducts C. R. again.
We turn first to Kogel’s assertion that the district court erred when it failed to adopt
her proposed modifications because circumstances had “materially and substantially changed” since
the order was entered and that Kogel’s proposed modification is in C. R.’s best interest. The family
code provides that the court may modify the order: (1) if doing so would be in the child’s best
interest and (2) if the child’s or parties’ circumstances have “materially and substantially changed”
since the order was entered. Tex. Fam. Code Ann. § 156.101(1) (West Supp. 2004-05). There is
no bright-line rule to determine what is in the best interest of the child; each case must be determined
on its unique set of facts. See Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). The district court has
wide latitude in determining the best interests of a child and will be reversed only for abuse of
discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A court abuses its discretion
only when it has acted in an unreasonable or arbitrary manner, or when it acts without reference to
any guiding principle. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.
1985). Under an abuse of discretion standard, legal and factual insufficiency are not independent
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grounds of error, but only factors used to assess whether the court abused its discretion. Doyle v.
Doyle, 955 S.W.2d 478, 479 (Tex. App.—Austin 1997, no pet.).
Evidence is legally insufficient to support a finding if the evidence as a whole rises
to a level that would enable reasonable and fair-minded people to differ in their conclusions. St.
Joseph Hosp. v. Wolff, 94 S.W.3d 513, 519 (Tex. 2002). We consider all of the evidence in the light
most favorable to the prevailing party, indulging every reasonable inference in that party’s favor.
Id. A district court’s findings of fact are reviewed for factual sufficiency of the evidence under the
same legal standards as applied to review jury verdicts for factual sufficiency of the evidence. Ortiz
v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). In reviewing factual sufficiency, we must weigh all of
the evidence in the record. Id. Findings may be overturned only if they are so against the great
weight and preponderance of the evidence as to be clearly wrong and unjust. Id. Inferences may
support a judgment so long as they are reasonable in light of all of the evidence. Id.
The court found that the conservatorship assignments should not be changed;
however, it did modify some child access provisions. The court found that granting Kogel’s
proposed modifications would not be in C. R.’s best interest, but that adopting some of the court’s
and Robertson’s modifications would be in C. R.’s best interest.
We agree with Kogel that circumstances have materially and substantially changed
since the February 6, 2002 order was rendered; the modifications the district court made to the order
acknowledge this, because the district court could not have modified the order absent an implicit
finding of changed circumstances. See Tex. Fam. Code Ann. § 156.101 (West Supp. 2004-05).
However, even if circumstances have materially and substantially changed, this fact did not obligate
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the district court to adopt the modifications urged by Kogel. The family code provides that the court
may modify the order if (1) doing so would be in the child’s best interest and (2) if the child’s or
conservator’s circumstances have “materially and substantially changed” since the order was entered.
Id. The issue of what is in the child’s best interest is a separate and independent inquiry from the
issue of whether the circumstances have materially and substantially changed. See id. Because we
afford the district court wide latitude in determining the best interests of the child, we uphold the
district court’s determination that the adopted modifications were in C. R.’s best interests. See
Gillespie 644 S.W.2d at 451.
There is ample statutory guidance and evidence in the record to support the district
court’s decision to modify the order in Robertson’s favor. Section 153.501 of the family code
authorizes a district court to take the measures outlined in section 153.503 if credible evidence is
presented to indicate there is a potential risk of the international abduction of a child by a parent of
the child. Tex. Fam. Code Ann. § 153.501. The abduction risk factors include evidence that a parent
has taken or concealed a child, lacks a financial reason to stay in the U.S., or has a history of
violating court orders. Id. § 153.502. If the district court finds that it is necessary to protect the child
from international abduction, it may take the following measures including: appointing another
person, such as the other parent, as sole managing conservator; requiring supervised visitation;
prohibiting the parent from removing the child from the U.S.; and ordering the parent to execute a
bond in an amount sufficient to offset the cost of recovering the child if the child is abducted. Id.
§ 153.503.
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Kogel took C. R. to Belgium in direct violation of a court order and refused to return
her. Kogel acknowledges that she does not have any ties to the United States and lacks financial
reasons to stay in the United States. Thus, Kogel’s situation and previous actions implicate many
of the enumerated statutory risk factors. See id. § 153.502. The district court found that due to the
grave risk of international child abduction posed by Kogel, it would be in C. R.’s best interest to
effect measures calculated to prevent another abduction. The district court modified the order to
provide more security for Kogel’s visits with C. R. to prevent another abduction, as authorized under
the family code. See id. §§ 153.501-.03.
Robertson claims to have spent hundreds of thousands of dollars in attorney’s fees
to recover C. R. from Belgium, which is significantly more than the value of the bond demanded of
Kogel. Thus, the bond’s increase from $10,000 in the original order to $100,000 in the modified
order is justified by the resources Robertson spent to recover C. R. after her abduction and by
Kogel’s admitted access to resources. See id. § 153.503.
Considering the evidence in the light most favorable to Robertson, we hold that the
evidence supporting the district court’s modifications is legally sufficient. See St. Joseph Hosp., 94
S.W.3d at 519. The findings of fact are not against the great weight and preponderance of the
evidence and thus are factually sufficient. The findings of fact and the modification based thereon
should not be overturned. See Ortiz, 917 S.W.2d at 772.
Kogel has not shown that the district court acted in an unreasonable and arbitrary
manner or without reference to guiding principles when it found that it was in C. R.’s best interest
for Robertson to remain sole managing conservator and that the other modifications were warranted.
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Furthermore, because Kogel failed to establish that the evidence was legally and factually
insufficient, these factors do not weigh in her favor under an abuse of discretion standard. See
Doyle, 955 S.W.2d at 479. We hold that the district court did not abuse its discretion in denying
Kogel’s requested modifications and granting Robertson’s and the court’s modifications. We
overrule Kogel’s second issue.
Attorney’s Fees
In her third issue, Kogel challenges the award of attorney’s fees as an abuse of
discretion and asserts that the award is not supported by legally and factually sufficient evidence.
The court may render judgment for reasonable attorney’s fees and expenses and order
the judgment and postjudgment interest to be paid directly to an attorney. Tex. Fam. Code Ann.
§ 106.002 (West Supp. 2004-05). The judgment may be enforced in the attorney’s name by any
means available for the enforcement of a judgment for debt. Id. An award of attorney’s fees in a
suit affecting the parent-child relationship is within the discretion of the district court. See id.
§ 106.001 (West 2002); Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996). Under an abuse of
discretion standard, legal and factual insufficiency are not independent grounds of error, but only
factors used to assess whether the court abused its discretion. Doyle, 955 S.W.2d at 479.
The reasonableness of the attorney’s fees awarded is a question of fact and must be
supported by the evidence. Petco Animal Supplies, Inc. v. Schuster, 144 S.W.3d 554, 567 (Tex.
App.—Austin 2004, no pet.). In Arthur Andersen & Co. v. Perry Equip. Corp., 945 S.W.2d 812,
818 (Tex. 1997), the supreme court laid out factors a district court should consider when determining
the reasonableness of attorney’s fees. See also Petco Animal Supplies, Inc., 144 S.W.3d at 567. The
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factors include: the time, labor and skill required to properly perform the legal service; the novelty
and difficulty of the questions involved; the customary fees charged in the local legal community for
similar legal services; the amount involved and the results obtained; the nature and length of the
professional relationship with the client; and the experience, reputation and ability of the lawyer
performing the services. Arthur Andersen & Co., 945 S.W.2d at 818; Petco Animal Supplies, Inc.,
144 S.W.3d at 567. Not all of the factors must be considered in every case; rather these factors are
general guidelines that should be taken into account when determining the reasonableness of
attorney’s fees. Petco Animal Supplies, Inc., 144 S.W.3d at 567.
Clear, direct, and uncontroverted evidence of attorney’s fees is taken as true as a
matter of law. Id. In the absence of controverting evidence, an affidavit of counsel regarding the
Andersen factors will support a district court’s award of attorney’s fees. Moody Nat’l. Bank v.
Riebschlager, 946 S.W.2d 521, 525 (Tex. App.—Houston [14th Dist.] 1999, pet. denied). The
affidavit of an attorney representing a claimant constitutes expert testimony that will support an
award of attorney’s fees. See Knighton v. International Bus. Machs. Corp., 856 S.W.2d 206, 210
(Tex. App.—Houston [1st Dist.] 1993, writ denied); Owen Elec. Supply, Inc. v. Brite Day Constr.
Inc., 821 S.W.2d 283, 288 (Tex. App.—Houston [1st Dist.] 1992, writ denied). Evidence supporting
an award of attorney’s fees should include hourly rate and hours expended. Central Tex.
Micrographics v. Leal, 908 S.W.2d 292, 299 (Tex. App.—San Antonio 1995, no writ).
Mr. Barrett, one of Robertson’s attorneys, averred in his fees affidavit that he has been
licensed to practice law since 1974 and has been board certified in family law since 1986. Barrett,
who charges $350 per hour for his services, stated his familiarity with the billing rates for attorneys
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and paralegals in the area of family law in Travis County and that the fees he charged were
“reasonable and necessary” compared to other similarly-situated, board-certified family law
attorneys. Barrett provided sixty-one pages of detailed billing records that show Robertson incurred
$107,321 in fees for his services. The billing records detail the individual legal service or support
task performed, the time it took to perform the task rounded to the nearest tenth of an hour, the
person who performed the task, and the fee charged for each task. The entries are redacted to omit
names, places, and exact subject matter of the task. According to his billing records, Barrett engaged
in trial preparations, made court appearances on Robert’s behalf, held meetings, and made
communications. Barrett’s support staff wrote letters, drafted motions, held conversations and
prepared for trial. Barrett’s representation spanned at least twenty months. Kogel did not file a
counter-affidavit or present other evidence to controvert the reasonableness of Barrett’s fees.
Mr. Dyer, who performed other legal services for Robertson in this matter, also filed
an affidavit and billing records to support the $22,740 that Dyer charged for his services. Dyer
averred that he has been licensed to practice law in Texas since 1961, that he practices exclusively
in international family law, that he is familiar with the billing rates for family law attorneys in Travis
County, that he charges $350 per hour, and that his fees were “reasonable and necessary” in this case.
Dyer’s bills reflected that he represented Robertson in court, prepared for and participated in
depositions, conducted legal research, monitored the Belgian proceedings, held meetings and had
conversations related to the case. Dyer represented Robertson for at least five months and presented
three bills. The billing statements itemize the tasks Dyer performed during each billing period and
the associated legal fees. Although the bills do not indicate how many hours were spent on each
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legal task, dividing each bills’ total fee by Dyer’s $350 hourly rate yields the total hours it took Dyer
to complete the enumerated legal tasks. Kogel did not present any evidence to controvert the
reasonableness of the fees charged by Dyer, nor does she cite legal authority for the proposition that
assessing a fee’s reasonableness requires that each legal task be recorded with precise time details.
The district court considered all of the evidence when it awarded attorney’s fees for
Robertson’s prosecution of the case. Barrett and Dyer provided clear, direct and uncontroverted
evidence of attorney’s fees; we consider this evidence true as a matter of law. Petco Animal
Supplies, Inc., 144 S.W.3d at 567; see Knighton, 856 S.W.2d at 210. Furthermore, Kogel did not
file a controverting affidavit challenging the fees nor did she otherwise provide any controverting
evidence to the district court. Thus, in the absence of controverting evidence, Barrett’s and Dyer’s
fees affidavit support the district court’s award of attorney’s fees. See Moody Nat’l. Bank, 946
S.W.2d at 525. Although all of the Andersen factors are not contained in each affidavit, we hold that
the district court had evidence in the form of uncontroverted affidavits upon which to base its
decision, and we cannot say that the award was so arbitrary or unreasonable as to require reversal.
See Columbia Rio Grande Reg’l Hosp. v. Stover, 17 S.W.3d 387, 397 (Tex. App.—Corpus Christi
2000, no pet.). We overrule Kogel’s third issue.
Attorney’s Fees as Child Support
In her fourth issue, Kogel contends that the district court erred by characterizing the
attorney’s fees as “in the nature of child support.” We agree and modify the district court’s order
to delete all characterizations of attorney’s fees as “in the nature of child support” and instead we
characterize the awards as debts.
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The Texas Constitution provides that no person shall be imprisoned for debt. Tex.
Const. art. 1, § 18. Although an order requiring payment of debt may be enforced through legal
processes, a confinement order premised on a failure to pay a debt is void. In re Henry, 154 S.W.3d
594, 596 (Tex. 2005). A person may be confined under a court’s contempt powers for failure to pay
child support because the obligation to support a child is considered a legal duty and not a debt. Id.
With the exception of child support enforcement actions, Texas law holds that attorney’s fees
may only be awarded as costs enforceable as debt. Finley v. May, 154 S.W.3d 196, 199 (Tex.
App.—Austin 2004, no pet.); see Tex. Fam. Code Ann. §§ 106.002, 157.167 (West Supp. 2004-05).
Attorney’s fees incurred to enforce a child support order can be characterized as child support. See
Finley, 154 S.W.3d at 199. The legislature distinguishes between the assessment of fees and costs
in enforcement actions and modification suits because of the potentially serious consequences that
stem from an award of fees as child support. Id.
In its child enforcement order, the district court awarded Robertson attorney’s fees
and characterized the entire award as “in the nature of child support.” The awards for Barrett’s and
Dyer’s fees include both fees incurred to enforce the child support order, which may be properly
characterized as “in the nature of child support,” and fees incurred in the modification suit, which
may only be awarded as costs enforceable as debt. See Tex. Fam. Code Ann. §§ 106.002, 157.167.
Neither the district court’s order, nor the evidence in the record segregate fees incurred to enforce
child support from those incurred to modify the custody and possession order, which are only
enforceable as debt. Thus, should Kogel fail to pay both awards in full, she is subject to fine or
confinement for failure to pay child support. See Finley, 154 S.W.3d at 199.
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We hold that the district court’s award of attorney’s fees incorrectly characterizes a
portion of each fee award as “in the nature of child support,” and impermissibly subjects Kogel to
fine or confinement for failure to pay a debt. See Tex. Const. art. 1, § 18. Because we cannot
distinguish which portion of the fees are “child support” and which are “debt,” we reform the district
court’s order by deleting the characterization of the awards as “in the nature of child support.” See
Tex. R. App. P. 43.2(c). The awards are only enforceable as debts.
Contempt Issues
In her fifth issue, Kogel challenges the contempt order the district court entered as
an abuse of discretion and asserts that the order denies Kogel due process of law. In its child support
enforcement order, the district court found Kogel in contempt of the SAPCR final court order
because she failed to surrender C. R. The district court sentenced Kogel to 180 days in jail but
suspended the sentence on the condition that Kogel comply with the provisions of the modification
and child support enforcement orders for two years. The terms of the enforcement order require
Kogel to pay Robertson back child support, refrain from removing C. R. from Texas, pay Robertson
for Barrett’s and Dyer’s attorney’s fees, and pay for half of the ad litem’s attorney’s fees.3 If Kogel
3
In her brief, Kogel states, “It was improper for the trial court to order [Kogel] to pay the
[ad litem’s] attorney’s fees, especially considering that the suspension of commitment for contempt
of court requires [Kogel] to ‘comply with all provisions of this order for a period of two (2) years
. . . .’” Kogel seems to imply that it is improper to characterize the ad litem’s fees as “child support.”
The enforcement order characterizes the ad litem’s fees as a debt and we find no evidence in the
record that suggests otherwise. Kogel also implies that the award itself is improper. She does not
offer authority or argument to support this contention and has not preserved this issue for review.
See Tex. R. App. P. 33.1, 38.1(h).
18
fails to comply, the district court can revoke the suspension of her contempt sentence. Kogel asserts
that the enforcement order is unconstitutional because under its terms, Kogel could be confined for
not paying her debts, the attorney’s fees awards. See Tex. Const. art. 1, § 18.
Contempt orders, even when combined with an appealable order, are unappealable
by direct appeal. Cadle Co. v. Lobingier, 50 S.W.3d 662, 671 (Tex. App.—Fort Worth 2001, pet.
denied). A contempt order is subject to review by petition for writ of habeas corpus or a petition for
writ of mandamus. Id. A writ of habeas corpus will issue if the district court’s contempt order is
void, either because it is beyond the court’s power or because the relator has not been afforded due
process. In re Henry, 154 S.W.3d at 596.
Kogel cannot petition for habeas review because she has not been confined. See id.
Thus, Kogel must petition for review through a writ of mandamus. See id. Mandamus relief
requires a showing of no adequate remedy by appeal and a clear abuse of discretion. See Walker v.
Packer, 827 S.W.2d 833, 840-41 (Tex. 1992). Mandamus is not issued as a matter of right but at
the discretion of the court. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993).
Kogel’s request for mandamus is overruled.4
4
We note that Kogel’s underlying argument is flawed. Kogel was held in contempt for
disobeying a court order and was sentenced to confinement as punishment. The district court
suspended the sentence conditioned on Kogel’s compliance with all terms of the child support
enforcement order. If Kogel fails to comply with the terms of the enforcement order, the earlier
sentence will be reinstated. One term of the enforcement order is payment of the attorney’s fees.
Should Kogel fail to pay the attorney’s fees, the suspension will be lifted and she will be jailed, not
for failure to pay a debt, but for the earlier contempt of a court order.
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CONCLUSION
We overrule Kogel’s first, second, third and fifth issues. We modify the district
court’s enforcement order to remove language that characterizes the attorney’s fees award as
enforceable “in the nature of child support” and, as modified, affirm the order of the district court.
W. Kenneth Law, Chief Justice
Before Chief Justice Law, Justices B. A. Smith and Pemberton
Modified and, as Modified, Affirmed
Filed: August 19, 2005
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