In Re: Sanders

Attorney's fees may be awarded in a suit to recover retroactive support. So, because fees are recoverable in both a suit to establish parentage and to obtain retroactive fees and those were the two claims the mother pursued, neither she nor her attorney were obligated to segregate the fees.

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Click here for the full text of this decision FACTS:Gail Wayne Sanders appeals from an order establishing his parentage as father of Brittany Nicole Sanders and ordering him to pay retroactive child support of $52,400, attorney’s fees, and court costs. The dispute involves the attempt by Rolisa Carol Utzman to establish that Sanders was the father of her child Brittany and obtain retroactive child support. Brittany was born on Nov. 30, 1984, and Rolisa and Sanders continued to have a relationship through 1991. Throughout this time and continuing through the date of trial, Sanders was married to another person. After an evidentiary hearing, the trial court found that the amount of net resources available to Sanders beginning January, 1991, and continuing through May of 2003, was in excess of $4,000 per month. It also concluded that Sanders’ retroactive child support was $400 per month for the same period and that he owed Utzman a total of $52,400. HOLDING:Affirmed. Sanders’ first issue involves the trial court’s failure to timely execute findings of fact and conclusions of law. The record discloses that he did ask the trial court to execute findings of fact and conclusions of law per Texas Rule of Civil Procedure 296. And, though the trial court did not comply with the request within the time parameters established by the applicable rules of procedure, it nevertheless executed a set on March 22, 2004. The court holds that that Sanders’ complaint has become moot. Sanders contends that the trial court abused its discretion in ordering him to pay $52,400 as retroactive support. Sanders alleges that the award lacks evidentiary support and the trial court failed to reduce the sum by the support he had already paid. Moreover, Sanders argues the award lacks evidentiary support because the evidence fails to illustrate that his net resources exceeded $4000 per month as found by the trial court. The court overrules that issue. Sanders argues that the trial court erred in awarding counsel for Brittany’s mother attorney’s fees of $8,000. Specifically, Sanders argues that the recipient of the fees did not segregate the amount incurred in prosecuting the action to establish parentage from that related to obtaining retroactive support. Moreover, such segregation was required, Sanders believes, because Sanders admitted to paternity immediately after he was sued. The statute provides for the recovery of attorney’s fees incurred in establishing parentage. Furthermore, attorney’s fees may be awarded in any suit arising under Title 5 of the Texas Family Code. Proceedings to recover retroactive child support fall under Title 5. Thus, attorney’s fees may be awarded in a suit to recover retroactive support. So, because fees are recoverable in both a suit to establish parentage and to obtain retroactive fees and those were the two claims Brittany’s mother pursued, neither she nor her attorney were obligated to segregate the fees as alleged by Sanders. OPINION:Quinn, J.; Quinn, Reavis and Campbell, JJ.

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