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                                  MEMORANDUM OPINION

                                            No. 04-08-00268-CV

               IN THE MATTER OF THE GUARDIANSHIP OF THE PERSON AND
                        ESTATE OF A.M.K. and A.A.K., Minor Children

                        From the County Court at Law No. 1, Webb County, Texas
                                  Trial Court No. 2007-PB-6000035-L1
                           Honorable Alvino “Ben” Morales, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Sandee Bryan Marion, Justice
                  Rebecca Simmons, Justice

Delivered and Filed:       April 15, 2009

REVERSED AND RENDERED

           Heydar “Shaun” Khaledi appeals the entry of a Final Order of Attorney’s Fees ordering him

to pay one-half of the attorney’s fees and court costs in a guardianship proceeding filed by Gilda

Khaledi. Because no statutory authority supports the trial court’s order, we reverse the order of the

trial court and render judgment denying Gilda’s motion for award of attorney’s fees.

                                              BACKGROUND

           On April 13, 2007, Gilda filed an application for appointment of a guardian for the person

and estate of her minor children, A.M.K. and A.A.K. In her application, Gilda requested the court

to appoint her as guardian of the person and estate of her minor children. According to Gilda, a
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guardianship was necessary because the minor children’s interest was going to be involved in

litigation. Gilda’s counsel explained that the anticipated litigation involving the children concerned

a suit for increased child support against Shaun, Gilda’s ex-husband and the father of A.M.K. and

A.A.K, which was to be filed at a later time.1 On May 11, 2007, the trial court appointed an attorney

ad litem to represent the children.

       In November of 2007, Gilda’s mental condition unexpectedly deteriorated, and she was

hospitalized at a state mental hospital. On November 27, 2007, Luxandra Vela, Gilda’s cousin, filed

an application requesting to be appointed guardian for the person and estate of A.M.K. and A.A.K.

Vela’s application was based on Gilda’s mental condition. On that same day, A.M.K. and A.A.K.

executed selections of guardian by a minor and selected Vela as their guardian. The following day,

the trial court signed an order appointing Vela as temporary guardian over the person and estate of

A.M.K. and A.A.K.

       On December 3, 2007, Gilda filed a motion for award of attorney’s fees, seeking to recover

$34, 482.94, the attorney’s fees and court costs she incurred in the guardianship proceedings from

Shaun. On February 12, 2008, the trial court granted the motion, in part, ordering Shaun to

pay $17, 241.27, representing one-half of the attorney’s fees and court costs Gilda incurred in the

guardianship proceedings. On March 13, 2008, the trial court entered an order converting the

temporary guardianship into a permanent guardianship.

                                                 JURISDICTION

       We must first determine whether we have jurisdiction over Shaun’s appeal. In general,

appeals may be taken only from final judgments. Lehmann v. Har-Con Corp., 39 S.W.3d 191, 195



       1
           …   The motion to modify was never subsequently filed.

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(Tex. 2001). Probate proceedings, however, “are an exception to the ‘one final judgment’ rule.” De

Ayala v. Mackie, 193 S.W.3d 575, 578 (Tex. 2006) (citing Lehmann, 39 S.W.3d at 192); see also

In the Guardianship of Lillian Glasser, No. 04-07-00559-CV, 2009 WL 763351, at *2 (Tex.

App.—San Antonio 2009, no pet. h.). In probate cases, “‘multiple judgments final for purposes of

appeal can be rendered on certain discrete issues.’” De Ayala, 193 S.W.3d at 578 (quoting Lehmann,

39 S.W.3d at 192). In order to determine whether a probate court order is final for purposes of

appeal, we first look to see whether an express statute declares that particular phase of the probate

proceedings to be final and appealable. Id. (highlighting complete heirship judgments as an example

of an interlocutory probate court order that is final and appealable under an express statute); see also

Glasser, 2009 WL 763351 at *2. If no express statute exists, then in order for a probate court order

to be final and appealable, the order must dispose of all the parties and issues in that particular phase

of the proceeding. De Ayala, 193 S.W.3d at 578; see also Glasser, 2009 WL 763351 at *2.

Otherwise, the order is interlocutory and nonappealable. De Ayala, 193 S.W.3d at 578; see also

Glasser, 2009 WL 763351 at *2.

        Gilda first contends we lack jurisdiction to consider the trial court’s February 12, 2008 order

because no statute authorizes an interlocutory appeal from an order granting attorney’s fees and court

costs in a guardianship proceeding. Gilda also asserts the February 12, 2008, order is a part of the

overall guardianship proceeding involving a child support dispute, and the order does not dispose

of all the parties and issues raised in the entire proceeding. Finally, Gilda contends Shaun’s failure

to request a severance of the attorney’s fees order from the remaining issues in the case prevents the

order from being appealable.




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       Because no express statute makes the February 12, 2008 order appealable and no severance

was requested, we must determine whether the order disposes of all the parties and issues in the

particular phase of the proceeding. See De Ayala, 193 S.W.3d at 578. In Gilda’s motion, the only

relief she requested was an award of the attorney’s fees and court costs she incurred in the

guardianship proceeding. The February 12, 2008 order fully addresses that narrow issue by ordering

Shaun to pay $17, 241.47, one-half of the attorney’s fees and court costs Gilda had incurred.

Moreover, the order contains several indicia of a final judgment, including its references to being

a “judgment,” its provision for appellate attorney’s fees, and its provision for execution and

enforcement. See Lehmann, 39 S.W.3d at 206 (noting language in an order may reveal its intended

finality). Because no issues raised in the December 3, 2007 motion remained unresolved, the

February 12, 2008 order concluded a discrete phase of the guardianship proceedings and therefore

is appealable. See De Ayala, 193 S.W.3d at 578; Logan v. McDaniel, 21 S.W.3d 683, 688 (Tex.

App.—Austin 2000, pet. denied).

                                        ATTORNEY ’S FEES

       In his sole issue on appeal, Shaun contends the trial court abused its discretion by ordering

him to pay $17, 241.47, one-half of the attorney’s fees and court costs Gilda had incurred, and

further ordering him to pay $15,000 in the event the order was appealed and the appeal was

unsuccessful. Shaun contends the trial court blatantly disregarded section 665B of the Texas Probate

Code, and as a result the order is improper and should be vacated.

       Gilda contends the probate court’s order should be reviewed under the Texas Family Code

because all of the pleadings involving the guardianship, including the motion for attorney’s fees and

court costs, relate to a motion to modify the amount of child support, which Gilda anticipated filing



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at a later date. Shaun asserts, however, that Gilda incorrectly attempts to avail herself under the

Texas Family Code. According to Shaun, because Gilda filed her motion for award of attorney’s

fees as part of the guardianship proceeding, the Texas Probate Code governs its disposition. We

agree with Shaun.

       A motion to modify child support and related pleadings must be filed in the court of

continuing, exclusive jurisdiction. TEX . FAM . CODE ANN . § 156.002 (Vernon 2009) (requiring a suit

for modification to be filed in the court with continuing, exclusive jurisdiction). If, as her attorney

represented, Gilda was planning to seek a child support modification, then she would have been

required to file her pleadings as a motion to modify in the 111th District Court, which was the court

with continuing, exclusive jurisdiction. See TEX . FAM . CODE ANN . §§ 155.001, 155.002, 156.002

(Vernon 2009); see also In re Marriage of White, No. 06-07-00048-CV, 2007 WL 2948396, *1

(Tex. App.—Texarkana 2007, no pet.). Here, Gilda filed the motion for award of attorney’s fees

in the guardianship proceeding. Therefore, the Texas Probate Code governs its disposition. See

TEX . PROB. CODE ANN . § 606(c) (Vernon 2003) (providing guardianship proceedings to be filed in

county courts at law where no statutory probate court exists).

       We review a trial court’s award of attorney’s fees and court costs related to a guardianship

proceeding under an abuse of discretion standard. Meduna v. Holder, No 03-02-00067-CV, 2003

WL 124214, *2 (Tex. App.—Austin 2003, no pet.); see also Moore v. First City Bank of Dallas, 707

S.W.2d 286, 288 (Tex. App.—Fort Worth 1986, no writ). A trial court abuses its discretion when

it acts in an arbitrary or unreasonable manner without reference to guiding rules or principles.

Meduna, 2003 WL 124214 at *3; see also Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226

(Tex. 1991).



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       Under section 665B of the Texas Probate Code, a court, on request of the person who filed

an application to be appointed guardian, may order compensation for an attorney who represented

the applicant from “available funds of the ward’s estate” or “the county treasury if: (A) the ward’s

estate is insufficient to pay for the services provided by the attorney; and (B) funds in the county

treasury are budgeted for that purpose.” TEX . PROB. CODE ANN . § 665B(a) (Vernon 2009); In re

Guardianship of Fortenberry, 261 S.W.3d 904, 914 (Tex. App.—Dallas 2008, no pet.); Meduna,

2003 WL 124214 at *2. Accordingly, section 665B of the Texas Probate Code clearly specifies that

compensation for an attorney who represented an applicant in guardianship proceedings must be paid

by either the “available funds of the ward’s estate” or “the county treasury.” Because compensation

from Shaun does not constitute compensation from either the “available funds of the ward’s estate”

or “the county treasury,” the trial court abused its discretion by acting without reference to section

665B of the Texas Probate Code, which contained the guiding rule and principle. Meduna, 2003

WL 124214 at *3; see also Beaumont Bank, 806 S.W.2d at 226.

                                           CONCLUSION

       We reverse the trial court’s order and render judgment that Gilda’s motion for award of

attorney’s fees is denied.



                                               Karen Angelini, Justice




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