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Click here for the full text of this decision FACTS:The trial court refused to award attorney’s fees and costs to appellant Julia L. Kurtz pursuant to an agreed divorce decree providing, in part, for the payment of attorney’s fees and costs in “a subsequent suit to modify child support.” Julia contends the trial court erred in refusing to award attorney’s fees and costs under the attorney’s fees provision, because the decree unambiguously provides she is entitled to recover those fees and costs without regard to whether they are reasonable or necessary. Moreover, Julia maintains she is entitled to all of the attorney’s fees and costs she incurred � over forty thousand dollars � because the child support claims are inextricably intertwined with her other financial claims and with Ronald Kurtz’s counterclaims and thus, fall within the exception to the segregation requirement. Julia also challenges the trial court’s conclusions of law and the legal and factual sufficiency of the evidence supporting many of the trial court’s findings of fact. HOLDING:Reversed and remanded. The court finds that Julia’s argument � that she is not required to demonstrate the attorney’s fees she seeks are reasonable and necessary, because the attorney’s fees provision does not expressly so state � is unpersuasive. Such a conclusion would result in a “blank check” permitting an opposing party to recover unreasonable, unnecessary fees in any amount. Moreover, the attorney’s fees provision is not rendered ambiguous merely because it does not expressly state that it is limited to “reasonable and necessary” attorney’s fees and costs. The court holds that reasonableness is an implied term in the decree’s attorney’s fees provision and construes the term “attorney’s fees and costs” to unambiguously require that Ronald pay only reasonable and necessary attorney’s fees and costs. Because the attorney’s fees provision implies payment of reasonable and necessary attorney’s fees and costs, the court does not consider whether a contrary interpretation would be unconscionable. The court concludes that Ronald’s voluntary child support payments did not abrogate Julia’s contractual right to attorney’s fees and costs for bringing an action to modify child support, nor did it obviate the need for a court order. Accordingly, the trial court erred in concluding that, because Ronald voluntarily paid support in accordance with the statutory guidelines, Julia was not entitled to any attorney’s fees and costs under the decree. Julia contends that, because Ronald failed to plead the affirmative defense of unreasonable and excessive demand, it was waived. She also contends the defense does not apply here; the attorney’s fees provision does not require that a demand be made; no demand was made; and, if a demand was made, it was not made unreasonably or in bad faith. A party must affirmatively assert excessive demand as a defense to a claim for attorney’s fees. Standard Constructors, Inc. v. Chevron Chem. Co. Inc., 101 S.W.3d 619 (Tex. App. Houston [1st Dist.] 2003, pet. denied). Here, Ronald did not plead excessive demand as an affirmative defense, and the record does not reflect the issue was tried by consent; therefore, the court holds it was waived. The trial court erred in determining that Julia’s claim for child support in excess of the statutory guidelines constituted an excessive demand. The court concludes that Julia’s defense of Ronald’s counterclaims to decrease child support and his claim for offsets for payments made directly to Julia are inextricably intertwined with Julia’s child support modification claims. Those claims arise out of the same transaction and are so interrelated that their prosecution or defense entails proof or denial of essentially the same facts. However, Julia has failed to establish that her other financial claims against Ronald and her defense of his counterclaims relating to conservatorship, possession, and access are inextricably intertwined with her child support modification claims. Therefore, under the decree’s attorney’s fees provision, Julia is entitled to reasonable and necessary attorney’s fees and costs incurred in her action to modify child support, and fees and costs incurred in her defense of Ronald’s counterclaims to decrease child support and for credit on payments made directly to Julia. However, Julia is not entitled to attorney’s fees and costs incurred in connection with her other financial claims and her defense of Ronald’s counterclaims relating to conservatorship, possession, and access. OPINION:Guzman, J.; Edelman, Seymore and Guzman, JJ.

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