Published by Ben Beveridge | January 6, 2024 | Firm News

Representing yourself in a family law matter can save you a substantial amount of money, but it can also be a challenging journey. It’s often referred to as the “pro-se killer” when a pro-se litigant is ordered to pay the other side’s legal fees. It’s a tough situation because not only are you navigating the legal landscape without an attorney, but you’re also footing the bill for the opposing party’s lawyer. This scenario can discourage settlement attempts and lead to prolonged litigation, with you stuck paying the opposing attorney’s fees. However, there are strategies you can employ to tackle this daunting challenge.

One effective way to contest a request for attorney’s fees is by recognizing when the opposing side improperly combines fees that should have been kept separate.

In a notable case, during my early legal career, I successfully challenged an award of attorney’s fees totaling $25,712.50. My client had initially represented himself in a modification case, where he was ordered to pay this hefty amount in fees. Upon seeking my assistance for an appeal, we set out to have the entire fee award vacated. Here’s a snippet from my brief, addressing the fees issue:

“A party seeking to recover attorney’s fees must “segregate fees between claims for which they are recoverable and claims for which they are not.” Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 311 (Tex. 2006). “[I]f any attorney’s fees relate solely to a claim for which such fees are unrecoverable, a claimant must segregate recoverable from unrecoverable fees.” Id. Fee claimant has the burden to show that segregation was not required, and their requested fees relate to or advance a recoverable claim. See CA Partners v. Spears, 274 S.W.3d 51, 83 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (reversing award of attorney’s fees when attorney “failed to articulate how the legal services that she performed advanced both recoverable and unrecoverable claims”).

In a bench trial, failure to segregate can be preserved by a post-judgment motion. Clearview Props., L.P. v. Prop. Tex. SC One Corp., 287 S.W.3d 132, 145 (Tex. App.—Houston [14th Dist.] 2009, pet. denied). When a party fails to segregate out attorney fees as required by law, the opposing party must object to the trial court’s error by postjudgment motion in the trial court in order to urge that error on appeal. S. Concrete Co. v. Metrotec Fin., Inc., 775 S.W.2d 446, 449 (Tex. App.—Dallas 1989, no writ).

Because attorney’s fees under 106.002 are not mandatory, the Court may not remand for a determination of the fees but must reverse. In re K.A.M.S., 583 S.W.3d 335, 350 (Tex. App.—Houston [14th Dist.] 2019, no pet.); Tex. Fam. Code Ann. § 106.002″

This excerpt underscores the importance of segregating attorney’s fees appropriately. Failure to do so can have significant consequences, as demonstrated by our successful appeal in this case.

In this particular instance, the trial court failed to segregate fees for work related to enforcement motions from those tied to the modification action. As a result, the trial court’s decision was challenged and ultimately reversed, leading to a judgment of no fee award. This outcome highlights the critical role segregation of fees plays in preserving the rights of pro-se litigants.

Below if is the relevant portion from the appellate court addressing the child support issue:“Did the trial court abuse its discretion in failing to segregate attorneys’ fees?

The need to segregate attorneys’ fees is a question of law, while the extent to which certain claims can or cannot be segregated is a mixed question of law and fact. CA Partners v. Spears , 274 S.W.3d 51, 81 (Tex. App.—Houston [14th Dist.] 2008, pet. denied) (citing Tony Gullo Motors I, L.P. v. Chapa , 212 S.W.3d 299, 312-13 (2006) ). We first consider whether the trial court was required to segregate attorneys’ fees. The undisputed record concerning the attorneys’ fees includes the following:

The Court originally ordered Father to pay Mother $25,712.50 in attorneys’ fees. This was based on testimony of Mother’s own lawyer about her fees, Mother’s testimony, and includes reference to a detailed invoice for $17,587.50.

The detailed invoice includes multiple references to work performed for enforcement matters.

Attorneys’ fees are recoverable for work performed in the course of a modification action under Tex. Fam. Code. § 106.002.

The record at trial and in post-judgment hearings affirmatively shows that a portion of the work upon which attorneys’ fees were based included hours devoted to enforcement motions unrelated to the modification proceeding.

The judgment upon which attorneys’ fees were provided did not resolve any matters pertaining to enforcement motions, and at a post-judgment hearing, the court openly postponed resolution of pending enforcement matters.

In its findings of fact, the trial court only references evidence related to work performed in connection with the modification action, and does not recite facts segregating that work from work on enforcement matters. In its conclusions of law, the court concludes $25,712.50 to be fair and reasonable.

Thus, the question is whether the court was required to segregate fees for work performed in connection with the enforcement motions from the work performed

[667 S.W.3d 892]

in connection with the modification. Often in segregation cases a question arises whether the other claims tried in tandem with claims upon which attorneys’ fees validly are based are also claims upon which attorneys’ fees may be validly based. See Kinsel v. Lindsey , 526 S.W.3d 411, 427 (Tex. 2017). Father argues on appeal that attorneys’ fees are unavailable for work done pursuant to an enforcement action. Mother argues that attorneys’ fees are available for both modification and enforcement. However, we need not reach the question of whether fees are ever recoverable in connection with enforcement motions because the enforcement action remained ongoing and was not resolved at the time of the judgment resolving the modification lawsuit and award of attorneys’ fees. Because fees on the enforcement motions were not recoverable at the time of the court’s fee award, the trial court was required to segregate those fees from the fees awarded on the modification action. See Lederer v. Lederer , 561 S.W.3d 683, 703 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The record in this case shows the trial court failed to segregate the fees recoverable for the modification lawsuit from fees that might later be recoverable in connection with the enforcement motions. Accordingly, the trial court abused its discretion.

Because the fees in question were discretionary, we are restrained from remanding for further proceedings; we reverse and render a judgment of no fee award. See Interest of K.A.M.S. , 583 S.W.3d 335, 350 (Tex. App.—Houston [14th Dist.] 2019, no pet.)

Accordingly, we sustain appellant’s second issue.”
Donnelly v. Speck, 667 S.W.3d 885 (Tex. App. 2023)

An interesting issue in this case was preservation of error. Typically a party must object to an improper award of attorney’s fees immediately, as soon as they discover the fees were awarded. Being pro-se my client did not know to do this so I objected for the first time in a motion for new trial. There was conflicting caselaw on the matter but ultimately the court found that I had successfully preserved error.

An exception to the need to segregate the fees is when the fees from different matters arise from the same “transactions”. So if an enforcement and a modification are both based on visitation denial, the fees need not be separated.

Furthermore, an exception exists to the duty to segregate attorney’s fees among multiple claims, at least one of which supports an award of attorney’s fees enforceable as child support and at least one of which does not, when the services rendered are in connection with claims arising out of the same facts or transaction and their prosecution or defense entails proof or denial of essentially the same facts. Kurtz v. Kurtz, 158 S.W.3d 12, 22 (Tex. App.—Houston [14th Dist.] 2004, pet. denied). Under those circumstances, the party suing for attorney’s fees may recover the entire amount for all claims that satisfy this exception. Id.
Lewis v. Joanne A. Vasquez & the Office of Attorney Gen., No. 07-14-00170-CV (Tex. App. Apr 07, 2016)

In conclusion, navigating attorney’s fees in family law cases can be complex, especially when you’re representing yourself. However, by understanding the rules and exceptions related to fee segregation, you can effectively protect your rights and financial interests. Don’t let the fear of attorney’s fees discourage you from pursuing what you believe is just and fair. With the right knowledge and legal strategy, you can face this challenge head-on and achieve a favorable outcome.

In conclusion, navigating attorney’s fees in family law cases can be complex, especially when you’re representing yourself. However, by understanding the rules and exceptions related to fee segregation, you can effectively protect your rights and financial interests. Don’t let the fear of attorney’s fees discourage you from pursuing what you believe is just and fair. With the right knowledge and legal strategy, you can face this challenge head-on and achieve a favorable outcome.