                                                                                       ACCEPTED
                                                                                   04-15-00613-CV
                                                                       FOURTH COURT OF APPEALS
                                                                            SAN ANTONIO, TEXAS
                                                                              9/30/2015 3:55:23 PM
                                                                                    KEITH HOTTLE

                            NO. __________
                                                                                            CLERK
                                 04-15-00613-CV
_______________________________________________
                                                                   FILED IN
                    IN RE LAWRENCE SHIPLEY III              4th COURT OF APPEALS
                                                             SAN ANTONIO, TEXAS
                                                            9/30/2015 3:55:23 PM
                                                              KEITH E. HOTTLE
                                                                    Clerk
                      From the 166th District Court
                           Bexar County, Texas
                        Cause No. 2012-CI-13421
                 In the Interest of L.N.S., a Minor Child


              PETITION FOR WRIT OF MANDAMUS



MICHAEL A. STOCKER                     ROBINSON C. RAMSEY
State Bar No. 19257500                 State Bar No. 16523700
mike@stockerfamilylaw.com              rramsey@langleybanack.com
55 Waugh Drive, suite 605              CATHERINE M. STONE
Houston, Texas 77007                   State Bar No. 19286000
Telephone: 713.862.3800                cstone@langleybanack.com
Telecopier: 713.869.2088               LANGLEY & BANACK, INC.
                                       745 E. Mulberry, Suite 900
CHRIS H. NEGEM                         San Antonio, Texas 78212
State Bar No. 14865480                 Telephone: 210.736.6600
chris@negemlawfirm.com                 Telecopier: 210.735.6889
LAW OFFICES OF CHRIS H. NEGEM
8620 N. New Braunfels, Suite 105
San Antonio, Texas 78217               ATTORNEYS FOR RELATOR
Telephone: 210.226.1200
Telecopier: 210.798.2654


RELATOR REQUESTS ORAL ARGUMENT
AND EMERGENCY TEMPORARY RELIEF*


*See Relator’s Motion for Emergency Temporary Relief filed
concurrently with this petition.
           IDENTIFICATION OF PARTIES AND COUNSEL
Relator:               Lawrence Shipley III

Trial Attorneys:       Michael A. Stocker
                       55 Waugh Drive, suite 605
                       Houston, Texas 77007

                       Chris H. Negem
                       Jessica Bartlett
                       LAW OFFICES OF CHRIS H. NEGEM
                       8620 N. New Braunfels, Suite 105
                       San Antonio, Texas 78217

Appellate Attorneys:   Robinson C. Ramsey
                       Catherine M. Stone
                       LANGLEY & BANACK, INC.
                       745 E. Mulberry, Suite 900
                       San Antonio, Texas 78212

                       Michael A. Stocker
                       55 Waugh Drive, suite 605
                       Houston, Texas 77007

                       Chris H. Negem
                       LAW OFFICES OF CHRIS H. NEGEM
                       8620 N. New Braunfels, Suite 105
                       San Antonio, Texas 78217

Respondent:            Hon. Stephani A. Walsh
                       45th Judicial District Court
                       100 Dolorosa
                       San Antonio, Texas 78205

Real Party             Andrea Vasquez
In Interest

Trial Attorney         Jason S. Bashara
                       LAW OFFICES OF JASON S. BASHARA
                       111 Soledad, Suite 1800
                       San Antonio, Texas 78205

                                     2
                                                 TABLE OF CONTENTS

IDENTIFICATION OF PARTIES AND COUNSEL....................................................... 2

TABLE OF CONTENTS................................................................................................................. 3

INDEX OF AUTHORITIES ........................................................................................................ 4

STATEMENT OF THE CASE......................................................................................................7

STATEMENT OF JURISDICTION......................................................................................... 8

ISSUES PRESENTED .................................................................................................................... 8

   ISSUE ONE ........................................................................................................................................... 8

           Ms. Vasquez did not meet her burden to prove that additional
           interim attorney’s fees were necessary for the safety and welfare
           of the child.

   ISSUE TWO .......................................................................................................................................... 8

           The trial court’s temporary orders constitute an impermissible
           equalization of interim attorneys’ fees.

   ISSUE THREE ...................................................................................................................................... 8

           The amount of attorney’s fees is unreasonable and unnecessary
           because it is based on the work of the opposing attorneys rather
           than the attorney who is to receive payment.

STATEMENT OF FACTS.............................................................................................................. 9

ARGUMENT ...................................................................................................................................... 13

   I.         Mandamus can correct a court’s clear abuse of discretion in the
              absence of an adequate appellate remedy. ..................................................... 13

   II.        Mandamus is available to correct temporary child-support orders
              because they are not appealable. .......................................................................... 15

                                                                           3
   III. Ms. Vasquez did not prove that interim attorney’s fees are necessary
        for the child’s safety and welfare. ......................................................................... 16

   IV.         The award of interim attorney’s fees under section 105.001(a)(5) is
               not intended to “level the playing field.” ......................................................... 23

   V.          The fee amount is unreasonable and unnecessary because it is not
               based on the receiving attorney’s fees. ............................................................. 24

TEMPORARY RELIEF ............................................................................................................... 26

APPENDIX ........................................................................................................................................ 26

RECORD .............................................................................................................................................. 27

PRAYER ............................................................................................................................................... 27

CERTIFICATION........................................................................................................................... 28

CERTIFICATE OF COMPLIANCE ...................................................................................... 28

CERTIFICATE OF SERVICE .................................................................................................. 29

APPENDIX ........................................................................................................................................ 30


A.         Reporter’s Record: Temporary Hearing (September 16, 2015)

B.         Judge’s Notes: Temporary Hearing (September 16,2015)
C.         TEX. CONST. art. V, § 6
D.         TEX. FAM. CODE ANN. § 105.001 (West 2014)
E.         TEX. GOV’T CODE ANN. § 22.221 (West 2004)




                                                                           4
                                  INDEX OF AUTHORITIES

Cases

Bloom v. Bloom, 767 S.W.2d 463 (Tex. App.—San Antonio 1989,
  writ denied) .............................................................................................. 18
Brooks v. Brooks, 480 S.W.2d 463 (Tex. Civ. App.—Eastland 1972,
  no writ) ..................................................................................................... 25
Cain v. Bain, 709 S.W.2d 175 (Tex. 1986) ................................................... 14
Carson v. Carson, 528 S.W.2d 308 (Tex. Civ. App.—Waco
  1975, no writ) ............................................................................................ 25
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ................................ 14
Dancy v. Daggett, 815 S.W.2d 548 (Tex. 1991) (orig. proceeding)..............15
In re Rogers, 370 S.W.3d 443 (Tex. App.—Austin 2012,
  orig. proceeding) ............................................................................... passim
In re Sartain, No. 01-07-00920-CV, 2008 WL 920664
  Tex. App.—Houston [1st Dist.] Apr. 3, 2008, orig. proceeding)
  (mem. op.) ......................................................................................... passim
MCI Telecommunications Corp. v. Crowley, 899 S.W.2d 399
  (Tex. App.—Fort Worth 1995, orig. proceeding) ...................................... 25
Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531
  (Tex. App.—San Antonio 2004, pet. denied)............................................ 19
Saxton v. Daggett, 864 S.W.2d 729 (Tex. App.─Houston
  [1st Dist.] 1993, orig. proceeding) ............................................ 16, 21, 23, 24
T.M.F., No. 09-10-00019-CV, 2010 WL 974577
  (Tex. App.─Beaumont Jan. 25, 2010, orig. proceeding)
  (mem. op.) ......................................................................................... passim
U.S. Gov’t v. Marks, 949 S.W.2d 320 (Tex. 1997).................................. 15, 18
Walker v. Packer, 827 S.W.2d 833 (Tex. 1992) (orig. proceeding) ............ 13
Constitutional Provisions

TEX. CONST. art. V, § 6 ................................................................................... 9
Statutes

TEX. FAM. CODE ANN. § 105.001 (West 2014)........................................ passim
TEX. GOV’T CODE ANN. § 22.221 (West 2004) ................................................ 9

                                                        5
Other Authorities

Becky Beaver, Leslie J. Bollier, and Michelle M. Kostun,
 Attorneys’ Fees in Family Law Proceedings,
 38TH ADV. FAM. LAW COURSE, Ch. 23 (State Bar of Texas 2012) ............... 21




                                      6
                         STATEMENT OF THE CASE
      Nature of the Case. The underlying lawsuit is a child-support-

modification case in which the real party in interest sought additional

temporary attorney’s fees from the relator pending the final outcome of the

proceeding. MR 1, 12, 21. 1

      Respondent Judge. The respondent is Hon. Stephani A. Walsh,

presiding judge of the 45th District Court, Bexar County, Texas. This

proceeding arises out of a cause pending in the 166th District Court, Judge

Laura Salinas presiding; however, Judge Walsh rendered the temporary

orders of which Relator complains. MR 1 at 38-40. 2

      Relief Sought. The relator seeks relief from the trial judge’s

temporary orders requiring the relator to pay additional interim attorney’s

fees to the real party in interest. MR 1 at 38-40.




      1
       “MR __” ― Mandamus Record Tab Number.
      2
       The trial court has not yet signed the temporary orders; however, a hearing on a
motion to sign them is set for October 6, 2015. MR 1 at 42. Relator will supplement the
mandamus record with the signed temporary orders when they become available.
                                          7
                   STATEMENT OF JURISDICTION

      This court has jurisdiction to issue “all writs of mandamus, agreeable

to the principles of law regulating those writs, against a … judge of a district

… court in the court of appeals district.” TEX. GOV’T CODE ANN. §

22.221(b)(1) (West 2004); see also TEX. CONST. art. V, § 6 (providing that

courts of appeals “shall have appellate jurisdiction co-extensive with the

limits of their respective districts, which shall extend to all cases of which

the District Courts or County Courts have original or appellate

jurisdiction”).

                          ISSUES PRESENTED

                                  ISSUE ONE
                           (Attorney’s Fees Award)

      Ms. Vasquez did not meet her burden to prove that additional
      interim attorney’s fees were necessary for the safety and welfare
      of the child.
                                 ISSUE TWO
                        (Attorneys’ Fees Equalization)

      The trial court’s temporary orders constitute an impermissible
      equalization of interim attorneys’ fees.

                                 ISSUE THREE
                          (Attorney’s Fees Amount)

      The amount of attorney’s fees is unreasonable and unnecessary
      because it is based on the work of the opposing attorneys rather
      than the attorney who is to receive payment.


                                       8
                          STATEMENT OF FACTS

         “Focus on safety and welfare,” the trial court told Ms. Vasquez’s

attorney at the hearing on her request for additional interim attorney’s fees.

“[Y]ou must present evidence concerning the safety and welfare of the

child.” MR 1 at 18.

         But the only evidence Ms. Vasquez presented was her own attorney’s

testimony and another judge’s prior temporary orders, which had already

awarded her $10,000 in interim attorney’s fees. MR 1 at 5-9; MR 12.

         “[W]hat happened to the $10,000?” the judge asked. MR 1 at 10.

         “That’s a great question,” Ms. Vasquez’s attorney acknowledged. MR 1

at 10.

         But Ms. Vasquez never answered it. In fact, she never answered any

questions. MR 1 at 22-28.        The only witness was her attorney, whose

testimony consisted solely of his qualifications, his estimate of the time and

tasks it would take to complete the case, and his opinion that his hourly

rate and representation were reasonable and necessary. MR 1 at 22-26.

         Although Ms. Vasquez’s attorney argued that additional interim

attorney’s fees were necessary for the child’s welfare, he provided no

supporting proof—only assertions, which Mr. Shipley’s attorneys disputed.

MR 1 at 9, 12-21, 30-32, 37.



                                       9
     For example, in his opening statement, Ms. Vasquez’s attorney told

the trial court that this matter “in essence is an above-guideline-child-

support case,” and, therefore, that the amount of Mr. Shipley’s earnings

went “to the very heart of this case.” MR 1 at 18-19. He then complained

that he was “going to have to do some work” because Mr. Shipley’s attorney

had objected to a discovery request for 1099 forms W-2 statements.” MR 1

at 10. He admitted, however, that he was “playing a bit of catchup at this

point” and that he had not yet been able to obtain her entire file from her

previous attorney. MR 1 at 11, 22.

     “[M]aybe [he] hasn’t gotten to it yet,” said Mr. Shipley’s attorney,

“[but] all of the income documents … have been produced. … We’ve been

producing them by agreement.” MR 1 at 37.

     Ms. Vasquez’s attorney then argued that “[t]he welfare of the child

deals with her education” and that Mr. Shipley had not paid the child’s

private-school tuition—another unsupported assertion that his attorneys

disputed. MR 1 at 18, 22-28, 37.

     “Mr. Shipley, although not obligated to do it,” his attorney responded,

“has been paying, by choice, one hundred percent of the [school] tuition,

expenses, and including the uniforms. So he’s not a guy that is running

from his obligations, as [Ms. Vasquez’s attorney] may want to suggest to the

Court.” MR 1 at 37.

                                     10
       In any event, Ms. Vasquez presented no evidence that “the education

of the child” or “the child’s minimum needs,” which her attorney equated to

“the welfare of the child,” were not being met. MR 1 at 19, 22-28.

      Furthermore, there was no evidence that if the trial court did not

order Mr. Shipley to pay Ms. Vasquez’s additional interim attorney’s fees

she would lose her legal representation or that the child’s safety and welfare

would suffer in any way. MR 1 at 22-28.

      “Bottom line,” the trial judge observed, “it’s a child support case.” MR

1 at 33.

      But at the bottom of that same line, Ms. Vasquez offered no evidence,

nor did she even assert, that Mr. Shipley had not been paying the court-

ordered temporary child support—only that she wanted more. MR 1 at 22-

28; MR 10.

      Nevertheless, the trial court granted Ms. Vasquez’s request for

additional interim attorney’s fees—in fact, the judge ordered more than the

approximately $21,350 her attorney sought. MR 1 at 27, 38-39.

      “The Court’s going to order $10,000,” said the judge. “And the Court

is going to order additional attorney’s fees monthly on an hourly basis at

$350 an hour and an equalization manner.” MR 1 at 38-39.




                                      11
      The manner of that “equalization” consisted of requiring Mr. Shipley

to pay Ms. Vasquez’s attorney at his hourly rate for the same number of

hours that his attorneys—not hers—worked. MR 1 at 39.

      “So if you spend 20 hours between the two of you,” the judge

explained, “then you owe [her attorney] 20 hours.” MR 1 at 39.

      “[J]ust so we understand,” Mr. Shipley’s attorney asked, “$10,000 in

interim fees and in addition to that an equalization?” MR 1 at 39.

      “When that runs out,” the judge confirmed, “when he uses his—28

hours is what I have gone with—when he uses up his 28 hours, you should

have 28 hours on that side, and from then on we will be equal.” MR 1 at 39.

      In fashioning that fee arrangement, the judge said she had “focus[ed]

on the words ‘safety’ and ‘welfare.’” MR 1 at 34. But there was no evidence

of any effect on the child’s safety and welfare—only arguments. MR 1 at 18,

22-28, 37. Therefore, Mr. Shipley filed this mandamus action challenging

the validity of that interim ruling.




                                       12
                                  ARGUMENT

I.    Mandamus can correct a court’s clear abuse of discretion in
      the absence of an adequate appellate remedy.

      An appellate court may issue a writ of mandamus “to correct a trial

court’s ‘clear abuse of discretion’ or violation of duty imposed by law where

no ‘adequate’ remedy by appeal exists.” In re Rogers, 370 S.W.3d 443, 445

(Tex. App.—Austin 2012, orig. proceeding) (citing Walker v. Packer, 827

S.W.2d 833, 839 (Tex. 1992) (orig. proceeding)).

      “A trial court has no ‘discretion’ in determining what the law is or

applying the law to the facts. Thus, a clear failure by the trial court to

analyze or apply the law correctly will constitute an abuse of discretion, and

may result in appellate reversal by extraordinary writ.” Rogers, 370 S.W.3d

at 445 (citing Walker, 933 S.W.2d at 840); see also In re Sartain, No. 01-

07-00920-CV, 2008 WL 920664, at *1 (Tex. App.—Houston [1st Dist.] Apr.

3, 2008, orig. proceeding) (mem. op.) (“A trial court clearly abuses its

discretion if it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law.”). 3

      An abuse of discretion occurred here when the trial court ordered

interim attorney’s fees in an attempt to “level the playing field” between the

parents, rather than to protect the safety and welfare of the child, as


      3 All internal citations and quotations omitted throughout this petition unless
otherwise noted.
                                         13
required by the statute authorizing such fees. TEX. FAM. CODE ANN. §

105.001(e)(5) (West 2014). Furthermore, the trial court arbitrarily tied the

payment of those fees to the hours billed by the attorneys for the father,

rather than the attorney for the mother, who was the one seeking the fees.

MR 1 at 38-39.

      In determining whether a trial court abused its discretion, “legal and

factual sufficiency challenges to the evidence are relevant factors.” Rogers,

370 S.W.3d at 445; see also City of Keller v. Wilson, 168 S.W.3d 802, 830

(Tex. 2005) (holding that evidence is legally insufficient if, “[c]rediting all

favorable evidence that reasonable [factfinders] could believe and

disregarding all contrary evidence except that which they could not ignore,”

there is no evidence to support the judgment); Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986) (holding that under a factual-sufficiency standard of

review a judgment is reversible if, considering and weighing all the

evidence, the judgment is “clearly wrong and unjust” because it is “contrary

to the overwhelming weight of the evidence”).

      In factoring legal- and factual-sufficiency considerations into the

abuse-of-discretion analysis, appellate courts “must engage in a two-

pronged inquiry, asking (1) whether the trial court had sufficient

information on which to exercise its discretion; and, if so, (2) whether the



                                      14
trial court erred in its application of discretion based on that information.”

Rogers, 370 S.W.3d at 445.

      Both prongs of the abuse-of-discretion test are missing here: not only

was there no evidence, or, alternatively, factually insufficient evidence, to

support the judge’s ruling, she misapplied the little information that she

had. That information consisted solely of testimony from the mother’s

attorney concerning his fees, with no evidence—only arguments—about the

child’s safety and welfare. MR 1 22-28, 38-39; see U.S. Gov’t v. Marks, 949

S.W.2d 320, 326 (Tex. 1997) (holding that “an attorney’s unsworn

statements are not evidence”).

II.   Mandamus is available to correct temporary child-support
      orders because they are not appealable.

      “Assuming a clear abuse of discretion in a temporary order in a suit

affecting the parent-child relationship, mandamus may lie on the basis that

there are no appellate remedies that are considered adequate.” Rogers, 370

S.W.3d at 445; see also Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991)

(holding that “mandamus [was] an appropriate remedy” because the trial

court’s “issuance of temporary orders is not subject to interlocutory

appeal”). That is the case here, because the trial court issued interim orders

for attorney’s fees pursuant to section 105.001 of the Family Code, which

provides: “Temporary orders rendered under this section are not subject to

interlocutory appeal.” TEX. FAM. CODE ANN. § 105.001(e); see also Saxton v.
                                    15
Daggett, 864 S.W.2d 729, 736 (Tex. App.─Houston [1st Dist.] 1993, orig.

proceeding) (holding that mandamus was “the appropriate remedy to

attack the issuance of temporary orders” under the predecessor statute to

section 105.001).

III. Ms. Vasquez did not prove that interim attorney’s fees are
     necessary for the child’s safety and welfare.

     Section 105.001(a)(5) provides: “In a suit [affecting the parent-child

relationship], the court may make a temporary order, including the

modification of a temporary prior order, for the safety and welfare of the

child, including an order ... for payment of reasonable attorney’s fees and

expenses.” TEX. FAM. CODE § 105.001(a)(5). This statute “does not authorize

a trial court to make a temporary order for payment of attorney’s fees ‘for a

purpose other than the safety and welfare of the child.’” Rogers, 370

S.W.3d at 445; see also Sartain, 2008 WL 920664, at *2 (holding same).

Therefore, “a party seeking a temporary order for attorney’s fees under

section 105.001(a)(5), such as [Ms. Vasquez] in this case, has the burden of

showing that the requested temporary order—e.g., to pay attorney’s fees—is

necessary for the safety and welfare of the children.” Rogers, 370 S.W.3d at

446; see also Sartain, 2008 WL 920664, at *2 n. 2 (confirming that that

the party requesting interim attorney’s fees has the burden to prove they

are necessary for the safety and welfare of the children); Saxton, 864

                                     16
S.W.2d at 736, 737 (granting mandamus because of the lack of evidence

that interim attorney’s fees were necessary for the children’s safety and

welfare).

      In Rogers, the mother’s attorney testified that “it’s going to be

expensive for her to try the case … taking into account the usual amount of

work a jury trial requires, including discovery and preparation, and also

considering [the father]’s contentious stance in the case” and that the father

“has the money to pay the interim attorney’s fees.” 370 S.W.3d at 446. The

court of appeals held that those claimed circumstances, which are

essentially the same as what Ms. Vasquez alleges here, were insufficient

under section 105.001(a) to show “that the requested interim attorney’s

fees will have [an] effect on the safety and welfare” of the child. Id. at 446,

447; MR 1 at 9-10 (asserting that Ms. Vasquez “does not have the ability to

pay” and that Mr. Shipley “has the ability to pay,” and complaining that Mr.

Shipley objected to Ms. Vasquez’s discovery requests).

      The temporary orders here are similar to the ones in Sartain, where

the trial court “ordered the payment of interim attorney’s fees to enable real

party in interest’s attorney ‘to conduct discovery and properly prepare for

trial and to protect the best interest of the child.’” 2008 WL 920664, at *2.

There, the trial court “heard no evidence and, therefore, could not have

heard any evidence that the attorney’s fees were needed for the safety and

                                      17
welfare of the child.” Id. Here, although the trial court heard testimony

from Ms. Vasquez’s attorney concerning the representation he intended to

provide and the estimated time and amounts he would log and charge for

his services, the judge heard no evidence—only arguments—that the

requested interim fees were necessary to protect the safety and welfare of

the child. MR 1 at 9, 12-28, 30-32, 37; see U.S. Gov’t v. Marks, 949 S.W.2d

320, 326 (Tex. 1997) (holding that “an attorney’s unsworn statements are

not evidence”); Bloom v. Bloom, 767 S.W.2d 463, 471 (Tex. App.—San

Antonio 1989, writ denied) (holding that, although an attorney “is an officer

of the court … the unsworn statement by the attorney does not constitute

evidence”).

      After hearing Mr. Vasquez’s attorney’s arguments, the trial judge

reminded him that “you must present evidence concerning the safety and

welfare of the child.” MR 1 at 18. But the only testimony he gave related to

his services and charges, not to the child’s safety and welfare. MR 1 at 22-

28.

      Ms. Vasquez insinuates that the first temporary order finding that

interim attorney’s fees in the amount of $10,000 were in the child’s “best

interest” constitutes carte blanche authority to increase that amount later

without proving that the additional fees are necessary for the “safety and

welfare” of the child at the time of the requested increase. MR 1 at 6. But

                                     18
section 105.001(a)(5) requires sufficient proof at the time of the request,

not at some other time—in this case three years—in the past. See T.M.F.,

2010 WL 974577, at *2 (requiring proof of an “immediate threat to the

health and safety” to support an award of interim attorney’ fees under

section 105.001(a)(5)).4

      Here, instead of an “immediate threat to the health and safety” of the

child to justify temporary attorney’s fees, the trial court focused on the

issues to be resolved at the final trial. MR 1 at 33.

      “Why isn’t this set for trial and done,” the judge asked. “This case

needs to be finished and concluded …” MR 1 at 33, 35.

      It had been three years since the first temporary hearing, which

resulted in an award of interim attorney’s fees to Ms. Vasquez. MR at 12.

Furthermore, the first trial judge did not award those fees based on the

child’s “safety and welfare,” but rather based on “best interest.” MR 3, 12.

And even hypothetically assuming that “best interest” could equate to

      4  Although the judge judicially noticed the prior temporary orders themselves and
the partial reporter’s record of the rendition of those orders, neither party offered any
testimony or exhibits from that hearing. MR 1 at 5-9; see T.M.F., No. 09-10-00019-CV,
2010 WL 974577, at *1 (Tex. App.─Beaumont Jan. 25, 2010, orig. proceeding) (mem.
op.) (“Although counsel asked the trial court to take judicial notice of the earlier
hearings in the case, he did not supply the trial court with the particular facts to be
noticed and the trial court did not state that judicial notice was being taken of any
particular facts adduced at a prior hearing.”); Paradigm Oil, Inc. v. Retamco Operating,
Inc., 161 S.W.3d 531, 539–40 (Tex. App.—San Antonio 2004, pet. denied) (“[T]he trial
court cannot take judicial notice of testimony from a previous proceeding at a
subsequent proceeding unless the testimony is admitted into evidence at the subsequent
proceeding.”).

                                           19
“safety and welfare,” any alleged “immediate threat to the health and safety

of the child[] had been met by the [previous] temporary orders …” See

T.M.F., 2010 WL 974577, at *2.

      The prior temporary orders awarding interim attorney’s fees neither

found nor demonstrated “any immediate threat to the health and safety” of

the child at this time. MR 3, 12; see T.M.F., 2010 WL 974577, at *2.

Furthermore, to justify interim attorney’s fees, that alleged threat would

have to exist “at the time of the request,” not three years before. See Becky

Beaver, Leslie J. Bollier, and Michelle M. Kostun, Attorneys’ Fees in Family

Law Proceedings, 38TH ADV. FAM. LAW COURSE, Ch. 23, p. 2 (State Bar of

Texas 2012) (citing Rogers, 2012 WL 1581374, at *2).

      Like the mother in T.M.F., Ms. Vasquez’s motion for additional

interim fees “sought to accomplish nothing more than to require that [Mr.

Shipley] finance [her] allegations that the SAPCR should be modified.”

2010 WL 974577, at *2.       That is confirmed by the fact that “the only

evidence in the record is that the fees were being sought solely to address

the [alleged] disparity in the relative wealth of the parties.” Id.; MR 1 at 38-

39; see also Sartain, 2008 WL 920664, at *2 (holding that an order for

interim attorney’s fees “to enable real party in interest’s attorney ‘to

conduct discovery and properly prepare for trial and to protect the best

interest of the child’” exceeded the scope of section 105.001(a)(5)).

                                      20
      The perceived “best interest” of the child, not her “safety and

welfare,” was the basis of the trial judge’s decision here. MR 1 at 34.

      “I do believe it’s necessary to determine this child’s best interest,” she

said, “whether or not she needs to remain in private school, whether or not

she gets an auto, auto insurance, any extracurricular activities, any of those

things that are going to be addressed with an above-guidelines child-

support argument on either side.” MR 1 at 34.

      But those “best interest” issues, which are “to be addressed” at trial,

do not constitute “safety and welfare” issues that justify additional interim

attorney’s fees at this time. MR 1 at 35; Sartain, 2008 WL 920664, at *2.

“It is not enough that issues presented at the final trial ‘may involve issues

relating to the safety and welfare of the children.’ A party seeking an award

of interim attorneys’ fees is required to present evidence that, at the time of

the request, funds are necessary to protect the safety and welfare of the

children.” Beaver, at p. 2 (quoting T.M.F., 2010 WL 974577 at *2 and citing

Rogers, 2012 WL 1581374, at *1).

      Here, as in Rogers, “there is simply no evidence in the record that

supports the conclusion that an award of interim attorney’s fees would have

an effect on the safety and welfare” of the child. 370 S.W.3d at 447; see also

Saxton, 864 S.W.2d at 733 (granting mandamus relief where there was “no



                                      21
evidence in the record that [the] interim fee payments were necessary to

promote the safety and welfare of the children”).

      Meanwhile, not only did Ms. Vasquez not explain what happened to

the original $10,000 interim-attorney’s-fees award, she did not testify to

any connection between the requested additional fees and the safety and

welfare of the child nor to any inability to pay her attorney’s fees herself.

MR 1 at 22-28. Like the mother in T.M.F., Ms. Vasquez “did not supply

detailed information regarding her finances, but she was represented by [a]

lawyer[] … and evidently was able to retain counsel.” 2010 WL 974577, at

*2; see also Rogers, 447 S.W.23d at 448 (in which there was no “evidence

in the record that [the mother] was unable in the absence of the temporary

order to move forward with her side of the litigation for financial reasons”).

      In Rogers, the mother testified about “her job and salary” and that

she was “‘strapped’ and did not ‘have any extra money for anything.’” 370

S.W.3d at 447. But she did not testify “regarding how her finances were

affecting the children.” Id. As a result, she “failed to satisfy her burden

under family code section 105.001(a)(5).” Id. Ms. Vasquez did not testify at

all. MR 1 at 5-38. Therefore, the evidence level here is even lower than in

Rogers, where there was “simply no evidence in the record that supports

the conclusion that an award of interim attorney’s fees would have an effect

on the safety and welfare” of the children. 370 S.W.3d at 447.

                                      22
      Because the mother in Rogers “produced no evidence supporting an

award of interim attorney’s fees under section 105.001(a)(5) of the family

code, it was a clear abuse of discretion for the district court to order [the

father] to pay [interim] attorney’s fees.” Given the absence of any testimony

at all from Ms. Vasquez, the abuse of discretion was even greater here. 370

S.W.3d at 448.

IV.   The award of interim attorney’s fees under section
      105.001(a)(5) is not intended to “level the playing field.”

      Section 105.001(a)(5) “does not authorize a trial court, in a suit

affecting the parent-child relationship, to make a temporary order for

payment of reasonable attorney’s fees for a purpose other than the safety

and welfare of the child.” Saxton, 864 S.W.2d at 736 (emphasis in

original).5 It is emphatically not meant to fund an opposing party’s lawsuit

by “leveling the playing field,” which is what Ms. Velasquez is trying to do.

See, e.g., Sartain, 2008 WL 920664, at *2 (rejecting the argument that the

father should pay interim attorney’s fees because he “was in a better

position to pay the fees” than the mother);               Saxton, 864 S.W.2d at 736

(granting mandamus relief to overturn an order based on “an asserted need

to facilitate further discovery, to ‘level the playing field’”).

      In her effort to purportedly “level the playing field,” Ms. Vasquez

essentially asked one judge to overrule another judge’s order that an

      5
          Construing section 11.11(a)(5), the precursor to section 105.001(a)(5).
                                             23
adequate amount of interim attorney’s fees is $10,000. MR 3, 12. Not only

is this request misplaced, it is unsupported by proof of the alleged disparity

upon which she relies.

     Here, as in T.M.F., “it is apparent that “the fees were being sought

solely to address the disparity in the relative wealth of the parties.” See

T.M.F., 2010 WL 974577, at *2; MR 1 at 38-39. That was the main theme

of Ms. Vasquez’s attorney’s argument, although she offered no evidence of

the wealth of either party. MR 1 at 22-28. It was also the basis for the

judge’s interim orders, which she made in “an equalization manner.” MR 1

at 38-39. But this sort of litigation-expense levelling is not authorized by

section 105.001(a)(5). Sartain, 2008 WL 920664, at *2; Saxon, 864 S.W.2d

at 733, 736. Therefore, “it was a clear abuse of discretion to order [the

father] to pay … interim fees to [the mother]’s attorney” in an effort to

“level the playing field.” Saxon, 864 S.W.2d at 733, 736.

V.   The fee amount is unreasonable and unnecessary because it
     is not based on the receiving attorney’s fees.

     In addition to ordering interim fees for the wrong reason, the trial

court ordered them based on the wrong billing. Ms. Vasquez’s attorney’s

request for approximately $21,000 in fees was based on the estimated 60

hours of his time he anticipated billing through trial. MR 1 at 27-28. But

instead of ordering the fees he requested on that basis, the judge tied the

award to the time and services of Mr. Shipley’s attorneys, without regard to
                                    24
the reasonableness and necessity of Ms. Vasquez’s attorney’s fees. MR 1 at

38-39.

      Awarding Ms. Vasquez attorneys’ fees based on the billings of Mr.

Shipley’s attorneys is not only unreasonable on its face, it sets the stage for

exceeding the amount that Ms. Vasquez requested, while varying from the

basis on which her attorney calculated it. MR 1, at 27, 38-39.

      Under the trial court’s formula, if Mr. Shipley’s attorneys work 40

hours, but Ms. Vasquez’s attorney works only 30 hours, she would receive a

$3,500 windfall based on the additional 10 hours for which she is not

obligated to pay. 1 MR 38-39; cf. Carson v. Carson, 528 S.W.2d 308, 309

(Tex. Civ. App.—Waco 1975, no writ) (holding that recovery of attorney’s

fees in a divorce case is limited to the amount the client is obligated to pay

the attorney); Brooks v. Brooks, 480 S.W.2d 463, 466 (Tex. Civ. App.—

Eastland 1972, no writ) (holding that where “the fee awarded by the trial

court exceeded the contractual arrangement by approximately $2,500” the

award of was “excessive in the amount of $2,500”).

      Treating an opposing attorney’s time and billing as a factor in

awarding attorney’s fees to the other side constitutes a questionable

practice. Cf. MCI Telecommunications Corp. v. Crowley, 899 S.W.2d 399,

403 (Tex. App.—Fort Worth 1995, orig. proceeding) (noting that

“[c]onspicuously absent” from the factors commonly used to determine the

                                      25
reasonableness of a party’s attorney’s fees “is the opposing party’s

attorneys’ fees incurred in the defense of the case”). Using it as the

yardstick of reasonableness and necessity is unquestionably arbitrary,

which is the test for mandamus relief. See Sartain, 2008 WL 920664, at *1

(holding that a trial court “clearly abuses its discretion if it reaches a

decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law”).

                          TEMPORARY RELIEF

      Relator is concurrently filing a separate motion requesting temporary

relief to stay the underlying proceedings pending this Court has determined

the merits of this mandamus petition.

      Relator’s attorney certifies that he has made a diligent effort to notify,

and has notified, all parties by expedited means that he intends to file a

request for an emergency stay and temporary relief.

                                APPENDIX

      Relator attaches hereto and incorporates herein by reference an

appendix containing a true and correct copy of that portion of the reporter’s

record showing the orders complained of, as well as copies of the text of the

statutes upon which Relator bases his arguments.




                                      26
                                 RECORD

     Relator is also concurrently filing a mandamus record, which includes

sworn or certified copies of every document that is material to his claim for

relief and that was filed in the underlying proceeding.

                                 PRAYER

      For these reasons, Relator Lawrence Shipley III asks this Court to:

      • grant a stay and temporary relief to prevent the underlying
        proceedings from going forward until this Court has ruled
        on the merits of this petition;

      • grant this petition for writ of mandamus;

      •    direct the trial court to vacate its temporary orders
          rendered on September 16, 2015 requiring Lawrence Shipley
          III to pay Andrea Vasquez interim attorney’s fees; and

      • grant Relator all other relief to which he is entitled.
                                    Respectfully submitted,

                                    MICHAEL A. STOCKER
                                    State Bar No. 19257500
                                    mike@stockerfamilylaw.com
                                    55 Waugh Drive, suite 605
                                    Houston, Texas 77007
                                    Telephone: 713.862.3800
                                    Telecopier: 713.869.2088

                                    CHRIS H. NEGEM
                                    State Bar No. 14865480
                                    chris@negemlawfirm.com
                                    LAW OFFICES OF CHRIS H. NEGEM
                                    8620 N. New Braunfels, Suite 105
                                    San Antonio, Texas 78217
                                    Telephone: 210.226.1200
                                    Telecopier: 210.798.2654
                                      27
                                  /s/ Robinson C. Ramsey
                                  ROBINSON C. RAMSEY
                                  State Bar No. 16523700
                                  rramsey@langleybanack.con
                                  CATHERINE M. STONE
                                  State Bar No. 19286000
                                  mstone@langleybanack.com
                                  LANGLEY & BANACK, INC.
                                  745 E. Mulberry Ave., Suite 900
                                  San Antonio, Texas 78212
                                  Telephone: 210.736.6600
                                  Telecopier: 210.735.6889

                                  ATTORNEYS FOR RELATOR


                           CERTIFICATION
STATE OF TEXAS         §

COUNTY OF BEXAR §

     I certify that I have reviewed the above petition for writ of mandamus
and have concluded that every factual statement in therein is supported by
competent evidence included in the appendix or record.
                                  /s/ Robinson C. Ramsey
                                  ROBINSON C. RAMSEY

                  CERTIFICATE OF COMPLIANCE

    I certify that the number of words in this Petition for Writ of
Mandamus, including its headings, footnotes, and quotations, is: 4338.

                                  /s/ Robinson C. Ramsey
                                  ROBINSON C. RAMSEY




                                    28
                      CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the foregoing
document has been sent to the following on this 30th day of September,
2015 as follows:

Jason S. Bashara
Email: jsb@basharalaw.com
LAW OFFICES OF JASON S. BASHARA
111 Soledad, Suite 1800
San Antonio, Texas 78205

Hon. Stephani Walsh
45th Judicial District Court
100 Dolorosa
San Antonio, Texas 78205
Email: Clerk45@Bexar.org

                                  /s/ Robinson C. Ramsey
                                  ROBINSON C. RAMSEY




                                   29
                               APPENDIX



A.   Reporter’s Record: Temporary Hearing (September 16, 2015)

B.   Judge’s Notes: Temporary Hearing (September 16,2015)
C.   TEX. CONST. art. V, § 6
D.   TEX. FAM. CODE ANN. § 105.001 (West 2014)
E.   TEX. GOV’T CODE ANN. § 22.221 (West 2004)




                                  30
§ 6. Courts of Appeals; Terms of Justices; Clerks, TX CONST Art. 5, § 6




  Vernon's Texas Statutes and Codes Annotated
    Constitution of the State of Texas 1876 (Refs & Annos)
      Article V. Judicial Department

                                             Vernon's Ann.Texas Const. Art. 5, § 6

                                      § 6. Courts of Appeals; Terms of Justices; Clerks

                                                 Effective: November 26, 2001
                                                          Currentness


Sec. 6. (a) The state shall be divided into courts of appeals districts, with each district having a Chief Justice, two or more other
Justices, and such other officials as may be provided by law. The Justices shall have the qualifications prescribed for Justices of
the Supreme Court. The Court of Appeals may sit in sections as authorized by law. The concurrence of a majority of the judges
sitting in a section is necessary to decide a case. Said Court of Appeals shall have appellate jurisdiction co-extensive with the
limits of their respective districts, which shall extend to all cases of which the District Courts or County Courts have original
or appellate jurisdiction, under such restrictions and regulations as may be prescribed by law. Provided, that the decision of
said courts shall be conclusive on all questions of fact brought before them on appeal or error. Said courts shall have such other
jurisdiction, original and appellate, as may be prescribed by law.


(b) Each of said Courts of Appeals shall hold its sessions at a place in its district to be designated by the Legislature, and at such
time as may be prescribed by law. Said Justices shall be elected by the qualified voters of their respective districts at a general
election, for a term of six years and shall receive for their services the sum provided by law.


(c) All constitutional and statutory references to the Courts of Civil Appeals shall be construed to mean the Courts of Appeals.


Credits
Amended Aug. 11, 1891, proclamation Sept. 22, 1891; Nov. 7, 1978; Nov. 4, 1980, eff. Sept. 1, 1981; Nov. 5, 1985; Nov. 6,
2001, eff. Nov. 26, 2001.



Notes of Decisions (441)

Vernon's Ann. Texas Const. Art. 5, § 6, TX CONST Art. 5, § 6
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                       © 2015 Thomson Reuters. No claim to original U.S. Government Works.




                © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                    1
§ 105.001. Temporary Orders Before Final Order, TX FAMILY § 105.001




  Vernon's Texas Statutes and Codes Annotated
    Family Code (Refs & Annos)
      Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &
      Annos)
        Subtitle A. General Provisions
           Chapter 105. Settings, Hearings, and Orders (Refs & Annos)

                                                V.T.C.A., Family Code § 105.001

                                      § 105.001. Temporary Orders Before Final Order

                                                 Effective: September 1, 2003
                                                          Currentness


(a) In a suit, the court may make a temporary order, including the modification of a prior temporary order, for the safety and
welfare of the child, including an order:


  (1) for the temporary conservatorship of the child;


  (2) for the temporary support of the child;


  (3) restraining a party from disturbing the peace of the child or another party;


  (4) prohibiting a person from removing the child beyond a geographical area identified by the court; or


  (5) for payment of reasonable attorney's fees and expenses.


(b) Except as provided by Subsection (c), temporary restraining orders and temporary injunctions under this section shall be
granted without the necessity of an affidavit or verified pleading stating specific facts showing that immediate and irreparable
injury, loss, or damage will result before notice can be served and a hearing can be held. Except as provided by Subsection (h),
an order may not be rendered under Subsection (a)(1), (2), or (5) except after notice and a hearing. A temporary restraining
order or temporary injunction granted under this section need not:


  (1) define the injury or state why it is irreparable;


  (2) state why the order was granted without notice; or


  (3) include an order setting the cause for trial on the merits with respect to the ultimate relief requested.


(c) Except on a verified pleading or an affidavit in accordance with the Texas Rules of Civil Procedure, an order may not be
rendered:


               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
§ 105.001. Temporary Orders Before Final Order, TX FAMILY § 105.001




  (1) attaching the body of the child;


  (2) taking the child into the possession of the court or of a person designated by the court; or


  (3) excluding a parent from possession of or access to a child.


(d) In a suit, the court may dispense with the necessity of a bond in connection with temporary orders on behalf of the child.


(e) Temporary orders rendered under this section are not subject to interlocutory appeal.


(f) The violation of a temporary restraining order, temporary injunction, or other temporary order rendered under this section
is punishable by contempt and the order is subject to and enforceable under Chapter 157.


(g) The rebuttable presumptions established in favor of the application of the guidelines for a child support order and for the
standard possession order under Chapters 153 and 154 apply to temporary orders. The presumptions do not limit the authority
of the court to render other temporary orders.


(h) An order under Subsection (a)(1) may be rendered without notice and an adversary hearing if the order is an emergency
order sought by a governmental entity under Chapter 262.


Credits
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 575, § 5, eff. Sept. 1,
1997; Acts 1999, 76th Leg., ch. 1390, § 3, eff. Sept. 1, 1999; Acts 2003, 78th Leg., ch. 1036, § 1, eff. Sept. 1, 2003.



Notes of Decisions (76)

V. T. C. A., Family Code § 105.001, TX FAMILY § 105.001
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                     © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                   2
§ 22.221. Writ Power, TX GOVT § 22.221




  Vernon's Texas Statutes and Codes Annotated
    Government Code (Refs & Annos)
      Title 2. Judicial Branch (Refs & Annos)
        Subtitle A. Courts
           Chapter 22. Appellate Courts
              Subchapter C. Courts of Appeals (Refs & Annos)

                                             V.T.C.A., Government Code § 22.221

                                                      § 22.221. Writ Power

                                                           Currentness


(a) Each court of appeals or a justice of a court of appeals may issue a writ of mandamus and all other writs necessary to enforce
the jurisdiction of the court.


(b) Each court of appeals for a court of appeals district may issue all writs of mandamus, agreeable to the principles of law
regulating those writs, against a:


  (1) judge of a district or county court in the court of appeals district; or


  (2) judge of a district court who is acting as a magistrate at a court of inquiry under Chapter 52, Code of Criminal Procedure,
  in the court of appeals district.


(c) Repealed by Acts 1987, 70th Leg., ch. 148, § 2.03, eff. Sept. 1, 1987.


(d) Concurrently with the supreme court, the court of appeals of a court of appeals district in which a person is restrained in
his liberty, or a justice of the court of appeals, may issue a writ of habeas corpus when it appears that the restraint of liberty
is by virtue of an order, process, or commitment issued by a court or judge because of the violation of an order, judgment, or
decree previously made, rendered, or entered by the court or judge in a civil case. Pending the hearing of an application for
a writ of habeas corpus, the court of appeals or a justice of the court of appeals may admit to bail a person to whom the writ
of habeas corpus may be granted.


Credits
Acts 1985, 69th Leg., ch. 480, § 1, eff. Sept. 1, 1985. Amended by Acts 1987, 70th Leg., ch. 69, § 1, eff. May 6, 1987; Acts
1987, 70th Leg., ch. 148, §§ 1.35, 2.03, eff. Sept. 1, 1987; Acts 1991, 72nd Leg., ch. 58, § 1, eff. May 2, 1991; Acts 1995,
74th Leg., ch. 839, § 1, eff. Sept. 1, 1995.


Editors' Notes

                                                       REVISOR'S NOTE

                                                        2004 Main Volume



                 © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                           1
§ 22.221. Writ Power, TX GOVT § 22.221


       The revised law in Subsection (b) omits “or any Justice thereof, in vacation,” from the source law in V.A.C.S.
       Article 1824 because amendments to V.A.C.S. Article 1816 have changed the original term of the courts of appeals
       from the first Monday in October until the first Monday in July to a term beginning and ending with each calendar
       year.



Notes of Decisions (305)

V. T. C. A., Government Code § 22.221, TX GOVT § 22.221
Current through the end of the 2015 Regular Session of the 84th Legislature

End of Document                                                  © 2015 Thomson Reuters. No claim to original U.S. Government Works.




               © 2015 Thomson Reuters. No claim to original U.S. Government Works.                                                2
