
COURT
OF APPEALS
SECOND
DISTRICT OF TEXAS
FORT WORTH
NO. 2-01-341-CV
 
IN THE INTEREST OF A.J.L. AND E.M.L.

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FROM THE 360TH DISTRICT COURT OF TARRANT COUNTY
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OPINION
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I. Introduction
Appellant Brian Angove Smale
("Smale") appeals from the trial court's finding that he lacked
standing to pursue modification of a custody order governing possession and
access to two minor children, A.J.L. and E.M.L. In three points, Smale complains
that the trial court erred by: (1) finding that he lacks standing to request
modification; (2) denying him a final trial before a jury; (3) refusing to allow
him to conduct discovery; and (4) ordering him to pay attorney's fees "in
the nature of child support." We modify the judgment to delete all language
decreeing that the attorney's fee award against Smale be adjudged in the nature
of child support, and, as modified, we affirm the trial court's judgment,
including the award of attorney's fees against Smale.
II. Factual and
Procedural History
Appellee Kathryn Ann (Lunsford)
Smale, now Kathryn Ann Brown ("Brown"), gave birth to A.J.L. and E.M.L.
during her marriage to Earl Lunsford, Jr. ("Lunsford"). Brown and
Lunsford divorced in July 1992. The Lunsford divorce decree expressly found that
A.J.L. and E.M.L. were children of the marriage between Brown and Lunsford,
named Brown as managing conservator and Lunsford as possessory conservator, and
set forth the terms of possession and access to the two children. In November of
1995, Brown, who had by then married Smale, filed a motion to modify the
parent-child relationship under cause number 296-52713-95. The trial court heard
Brown's motion and entered an order modifying Lunsford's visitation rights and
child support obligations ("the Lunsford Custody Order").
The marriage between Brown and
Smale ended in divorce in October 1997, in cause number 296-52044-97 ("the
Smale Divorce Decree"). The Smale Divorce Decree expressly found that there
were no minor children born to or adopted of the marriage and that none were
expected. Pursuant to the Smale Divorce Decree, a permanent injunction was
entered against Smale prohibiting him "from contacting [Brown] or her two
minor children, [E.M.L.] and [A.J.L.] in any manner and from coming to or around
their residences, schools or places of employment and from remaining at said
locations." Apart from the permanent injunction, the only mention of A.J.L.
and E.M.L. in the Smale Divorce Decree is on "Exhibit A," which lists
the children's personal effects as Brown's separate property.
On November 30, 2000, Smale filed a
"Petition to Modify Parent-Child Relationship" in Collin County under
cause numbers 296-52713-95 and 296-52044-97. The orders Smale requested modified
were the permanent injunction entered in the Smale Divorce Decree (no.
296-52044-97) and the Lunsford Custody Order (no. 296-52713-95). Smale requested
that the two causes be consolidated into cause number 296-52713-95, claiming
that both lawsuits involved common questions of law and fact and that
consolidation would serve the convenience of the court and litigants. The Collin
County district court granted Smale's motion to consolidate. Brown then filed a
motion to transfer the consolidated suit from Collin County to Tarrant County,
the county of residence of A.J.L. and E.M.L. The Collin County district court
granted Brown's motion, transferring the case and creating cause number
360-312390-01.
In his petition, Smale sought
appointment as joint managing conservator of his former stepchildren, A.J.L. and
E.M.L., and requested that the permanent injunction entered against him in the
Smale Divorce Decree be vacated. Smale requested possession of A.J.L. and E.M.L.
on the second and fourth weekends of each month and for one week during the
summer. In addition, he asked the court to issue temporary orders, including:
appointing him joint managing conservator of A.J.L. and E.M.L.; appointing an
attorney ad litem for A.J.L. and E.M.L.; ordering "preparation of a social
study into the circumstances and condition of the children and of the home of
any person requesting managing conservatorship or possession of the
children"; and ordering a pretrial conference. Following the consolidation
and transfer, Smale's attorney issued a notice of intention to take the oral
depositions of both A.J.L. and E.M.L. Brown responded with a motion to quash and
motion for protective order alleging that Smale lacked standing to seek access
to A.J.L. and E.M.L. and was seeking to depose them for the sole purpose of
harassing Brown and her family.
On March 12, 2001, the associate
judge issued a report stating that the relief sought by Smale for "access,
discovery and mediation are hereby denied. [The court] finds that movant Smale
lacks standing to pursue said matters." Smale appealed the associate
judge's decision, and the district court referred the case back to the associate
judge for clarification. Specifically, the court requested a recommendation on
the issue of Smale's standing to seek modification of the injunction against
him.
The clarification hearing was held
on May 1, 2001. At the hearing, Brown stipulated on the record that she
consented to dissolution of the injunction against Smale. The associate judge
found that Smale had "standing to modify or dissolve any pending injunction
that affects him personally." Because Brown had agreed to the relief
requested by Smale, the associate judge ordered the injunction dissolved.
Consequently, the associate judge declared Smale's request for
"depositions, testimony or further discovery" regarding the injunction
to be moot and denied mediation on the issue. The May 1, 2001 associate judge's
report also awarded Brown $2,500 in attorney's fees.
Smale appealed the associate
judge's recommendation to the district court. On October 2, 2001, the district
court heard the appeal and affirmed the associate judge's March 12 and May 1
reports. The district court ordered the permanent injunction entered in the
Smale Divorce Decree dissolved, found further proceedings regarding the
injunction moot, and denied the relief sought by Smale in his petition to
modify, "along with any requests for depositions, testimony, or further
discovery." At Smale's request, the district court issued findings of fact
and conclusions of law, including the following:

The Court finds that KATHRYN
    ANN [BROWN] consented in open court to the dissolution of the
    permanent injunction rendered in the Decree of Divorce at
    the dissolution of her marriage to BRIAN ANGOVE SMALE . . .
    .
     
The Court dissolved the
    permanent injunction . . . pursuant to the consent of Respondent, KATHRYN
    ANN [BROWN].
     
The Court finds that KATHRYN
    ANN [BROWN] challenged BRIAN ANGOVE SMALE's
    standing to bring an action for joint conservatorship of her minor children,
    [A.J.L.] and [E.M.L.], born during her
    prior marriage to [Lunsford].
     
The Court finds that BRIAN
    ANGOVE SMALE sought the depositions of the minor children, [A.J.L.]
    and [E.M.L.], and Court[-]ordered mediation to include the
    minor children.
     
The Court finds that prior to
    filing the Petition to Modify Parent-Child Relationship, and a Supplemental
    Petition to Modify Parent-Child Relationship in this case, BRIAN
    ANGOVE SMALE had previously sought conservatorship rights to the
    minor children, [A.J.L.] and [E.M.L.] in
    pleadings filed in Collin County, Texas, and that the Court dismissed the
    case, finding that BRIAN ANGOVE SMALE did not have
    standing.
     
The Court further finds that
    prior to filing this Petition to Modify Parent-Child Relationship, and a
    Supplemental Petition to Modify Parent-Child Relationship in this case, BRIAN
    ANGOVE SMALE had previously sought conservatorship rights to the
    minor children, [A.J.L.] and [E.M.L.], in
    pleadings filed in another court in Tarrant County, Texas, and that the
    Court dismissed the case, finding that BRIAN ANGOVE SMALE
    did not have standing.
     
The Court finds that standing is
    a threshold issue that was properly raised by KATHRYN ANN [BROWN],
    Respondent in this case.
     


. . . .


The Court finds that BRIAN
    ANGOVE SMALE does not have standing under Tex. Fam. Code
    Ann. § 102.003 (West Supp. 2000) to bring a cause of action for
    joint managing conservatorship of the minor children, [A.J.L.]
    and [E.M.L.], who were born to Respondent, KATHRYN
    ANN [BROWN], and her former husband, [Lunsford],
    as set out in their Decree of Divorce granted in Cause
    No. 322-148705-90, (the Lunsford Divorce).
     


. . . .


The Court finds that BRIAN
    ANGOVE SMALE does not have standing to bring a cause of action
    requesting appointment as joint managing conservator or possessory
    conservator of the minor children, [A.J.L.] and/or [E.M.L.],
    because BRIAN ANGOVE SMALE is not a "party
    affected"
    pursuant to Tex. Fam. Code § 156.002(a), because [Smale]
    is not "any person mentioned in a previous decree in the
    context of conservatorship."
     
The Court finds that because the
    injunction is dissolved, and BRIAN ANGOVE SMALE does not
    have standing for conservatorship of the minor children, [A.J.L.]
    or [E.M.L.], that all other issues concerning discovery and
    mediation are moot, and all further relief requested by BRIAN ANGOVE
    SMALE is denied.
     

III. Law and
Application to Facts
A. Modification
In his third point, Smale complains
that the trial court erred by concluding that he lacks standing to modify the
Lunsford Custody Order. Smale argues that he has standing to seek modification
of the order pursuant to section 156.002(a) of the Texas Family Code. Brown, on
the other hand, maintains that Smale meets none of the requirements for standing
under the family code.
Subject matter jurisdiction is
essential to the authority of a court to decide a case. Tex. Ass'n of Bus.
v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). Standing is
implicit in the concept of subject matter jurisdiction. Id. Whether a
party has standing to maintain a suit is a question of law. Brunson v.
Woolsey, 63 S.W.3d 583, 587 (Tex. App.--Fort Worth 2001, no pet.); accord
Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998) (holding that
because ripeness is a component of subject matter jurisdiction, it is question
of law subject to de novo review), cert. denied, 526 U.S. 1144, 119 S.
Ct. 2018 (1999). Thus, an appellate court reviews the issue of a party's
standing de novo. See Mayhew, 964 S.W.2d at 928.
Section 156.002 of the family code
authorizes two classes of people to file a suit for modification of a custody or
possession order: a "party affected" by such an order, and a person
with general standing to file an original suit under chapter 102 of the family
code. Tex. Fam. Code Ann. § 156.002(a), (b) (Vernon 2002). Smale concedes on
appeal that the standing he asserts does not arise from chapter 102 of the
family code. Rather, he contends that he has standing under section 156.002(a)
as a "party affected" by the Lunsford Custody Order.
A "party affected" by an
order includes a person mentioned in a previous decree in the context of
conservatorship. Watts v. Watts, 573 S.W.2d 864, 868 (Tex. Civ.
App.--Fort Worth 1978, no writ). Smale takes the position that he "is a
party 'affected by an order' in the context of conservatorship and
visitation" because: (1) he is directly affected by the Smale Divorce
Decree, (2) he sought managing conservatorship of A.J.L. and E.M.L. in the Smale
divorce, and (3) an order was entered in the Smale Divorce Decree affecting his
relationship with A.J.L. and E.M.L., that is, a permanent injunction was imposed
prohibiting him from contacting the two children.
Clearly, Smale is directly affected
by the permanent injunction entered against him in his own divorce. But that
injunction was dissolved. The order at issue here is not the permanent
injunction, but the custody order rendered in the Lunsford suit affecting
Lunsford's and Brown's parent-child relationship with their children, A.J.L. and
E.M.L.
Smale was not a party to the
Lunsford divorce, nor is he named anywhere in the Lunsford Custody Order,
although Brown sought modification of the order during her marriage to Smale.
Smale has never been granted conservatorship rights to A.J.L. or E.M.L. by any
court. In fact, the trial court specifically found that Smale had not had
contact with the children for at least two years prior to filing the underlying
lawsuit. In short, the Lunsford Custody Order does not mention Smale nor
adjudicate any of Smale's rights. The facts presented by Smale do not establish
that he is a "party affected" by the Lunsford Custody Order he seeks
to modify. Accordingly, we hold that Smale lacks standing to seek modification
of the order under section 156.002(a) of the family code.
(1)
Nonetheless, Smale alleges that his
standing to seek modification of the permanent injunction and standing to modify
the Lunsford Custody Order are one and the same. He claims that by consolidating
the Lunsford custody modification suit into the Smale divorce case, in which his
standing is undisputed, he became "an original party" vested with
standing to pursue modification of the Lunsford Custody Order.
(2) Essentially, Smale asks us to hold that a person who is
permanently enjoined from contacting or coming near a minor child is, by virtue
of that injunction, vested with standing to seek modification of a custody order
pertaining to that child, even though the person is not a party to the custody
order or the attendant suit affecting the parent-child relationship. Smale does
not cite any authority to support this contention.
A party who lacks standing at the
time he files suit cannot subsequently cure the jurisdictional defect by joining
as an involuntary plaintiff a person with standing to bring the claim. See
Cleaver v. George Staton Co., Inc., 908 S.W.2d 468, 471 (Tex. App.--Tyler
1995, writ denied) (holding that trial court's jurisdiction is determined at
time suit is filed, therefore husband's initial lack of standing was not cured
by subsequent joinder of wife as involuntary plaintiff with standing). Likewise,
Smale's lack of standing to modify the custody order is not cured by the
subsequent consolidation of that claim with a separate action in which his
standing is undisputed. We hold that Smale was not vested with standing to seek
modification of the Lunsford Custody Order simply by virtue of the consolidation
of cases in the trial court. We overrule this portion of Smale's third point.
B. Fees "in
the nature of child support"
In the balance of his third point,
Smale complains that the trial court abused its discretion by ordering him to
pay attorney's fees adjudged to be "in the nature of child support."
Smale argues that he cannot be ordered to pay child support while simultaneously
being found to lack standing in the suit affecting the parent-child
relationship.
We review a trial court's order of
child support under an abuse of discretion standard. Zajac v. Penkava,
924 S.W.2d 405, 408 (Tex. App.--San Antonio 1996, no writ) (citing Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)).
The May 1, 2001 associate judge's
report awarded Brown $2,500 in attorney's fees "to be paid as necessaries
to defend this suit, same to be paid to [Brown's attorney]'s office no later
than 8-1-01." The subsequent order of the trial court affirming the
associate judge's two reports stated:

IT IS ORDERED
  that KATHRYN ANN [BROWN] is awarded judgment for attorney's
  fees and costs against BRIAN ANGOVE SMALE for $2,500. All
  costs of court in this cause are adjudged against BRIAN ANGOVE SMALE,
  Petitioner, for which let execution issue.
The Court finds and further ORDERS
  that the attorney's fees and costs incurred by KATHRYN ANN [BROWN]
  were incurred in relation to the issue of child custody and are therefore
  adjudged in the nature of child support for the benefit of the minor children,
  [A.J.L.] and [E.M.L.], and are further
  hereby taxed as costs and shall be a non-dischargeable support obligation of BRIAN
  ANGOVE SMALE within the meaning of Section 523(a)(5) of the U.S.
  Bankruptcy Code, 11 [U.S.C.A. §] 101, et seq. BRIAN ANGOVE SMALE
  is therefore ORDERED to pay fees directly to KATHRYN
  ANN [BROWN], by cash check, or money order on or before the 1st
  of August, 2001, who may enforce this order for fees in her own name, such
  judgment bearing interest at 10% per year from the date the judgment is signed
  until paid, for which let execution issue if not paid.

Section 154.001 provides that a
court "may order either or both parents" to provide support for a
child. Tex. Fam. Code Ann. § 154.001(a). As the statute indicates, a court may
order an individual to pay child support only if it determines that a
parent-child relationship exists. Mata v. Moreno, 601 S.W.2d 58, 59
(Tex. Civ. App.--Houston [1st Dist.] 1980, no writ). Therefore, Smale
may only be ordered to pay true child support if he meets the definition of a
"parent" under the family code.
The family code defines
"parent" as:

[T]he mother, a man presumed to
  be the father, a man legally determined to be the father, a man who has been
  adjudicated to be the father by a court of competent jurisdiction, a man who
  has acknowledged his paternity under applicable law, or an adoptive mother or
  father. The term does not include a parent as to whom the parent-child
  relationship has been terminated.

Tex. Fam. Code Ann. § 101.024. The
record before us indicates that Smale is not a parent of either A.J.L. or E.M.L.
under the definition provided by the family code. The Smale Divorce Decree
expressly states that no minor children were born to or adopted of the marriage
between Smale and Brown. In fact, the Lunsford divorce decree specifically
states that Brown and Lunsford "are the parents" of A.J.L. and E.M.L.
Because Smale does not meet the definition of a "parent" under the
family code, we hold that he cannot be ordered to pay child support for the
benefit of A.J.L. and E.M.L.
The question remaining is whether
the language used by the trial court, that is, that the costs and attorney's
fees are "in the nature of child support," renders the present
situation distinguishable so that the order may be enforced against Smale as
child support in spite of his status as a nonparent. We conclude that the order
is not enforceable against Smale as written.
The trial court's description of
Smale's obligation to pay costs and attorney's fees as "in the nature of
child support" is reasonably interpreted as an order to pay Brown's
attorney's fees as necessaries for the benefit of A.J.L. and E.M.L.
(3) It is settled that attorney's fees rendered in prosecution or
defense of a suit affecting the parent-child relationship may be awarded as
necessaries to the child, even when the fees are incurred by the unsuccessful
party. See, e.g., Daniels v. Allen, 811 S.W.2d 278, 280 (Tex.
App.--Tyler 1991, no writ); Drexel v. McCutcheon, 604 S.W.2d 430, 435
(Tex. Civ. App.--Waco 1980, no writ); Perkins v. Freeman, 501 S.W.2d
424, 429-30 (Tex. Civ. App.--Beaumont 1973), rev'd on other grounds,
518 S.W.2d 532 (Tex. 1974). In each of these cases, the party against whom
attorney's fees were assessed as necessaries was a "parent" of the
minor child at issue. Thus, the attorney's fees fell within the scope of the
parent's duty to pay the necessary expenses of a minor child.
In the present case, however, the
party being ordered to pay costs and fees as necessaries is not a parent and is
not so obligated. It is inconsistent to levy the nondischargeable burden of
child support upon a person whom the law refuses to recognize as a parent of the
child at issue. We hold that the trial court abused its discretion by ordering
the attorney's fees and costs assessed against Smale to be "in the nature
of child support." Accordingly, we sustain the balance of Smale's third
point and modify the trial court's judgment to delete the language indicating
that the costs and attorney's fees are in the nature of child support and are
nondischargeable. See Tex. R. App. P. 43.2(b). Thus modified, we affirm
the judgment's award to Brown of $2,500 in costs and attorney's fees.
C. Right to Trial
by Jury
In his first point, Smale complains
that the associate judge wrongfully turned the May 1st clarification
hearing into a final trial without forty-five days' notice to the parties,
without a jury, and without the presiding judge's presence or approval. Brown
replies that denial of a jury trial was proper because no fact issues remained
at the conclusion of the hearing before the associate judge.
An associate judge has the
authority to conduct hearings and formulate conclusions of law. Tex. Fam. Code
Ann. § 201.007(a)(1), (9). As a question of law, the issue of Smale's standing
to pursue modification of the Lunsford Custody Order was therefore within the
associate judge's power to hear and rule upon. See id.; see also
Brunson, 63 S.W.3d at 587.
The associate judge is also
empowered to make findings of fact on evidence and to recommend orders to be
rendered in a case. Tex. Fam. Code Ann. § 201.007(a)(8), (10). Thus, in light
of Brown's consent on the record to the dissolution of the permanent injunction
against Smale, the associate judge was authorized to order the permanent
injunction vacated and to rule any further discovery requests moot.
In his reply brief, Smale argues
that the trial court's assessment of attorney's fees against him was improper
because it involved fact issues for a jury's determination. However, it is
well-settled that an award of attorney's fees in an action brought under the
family code lies in the sound discretion of the trial court. Tex. Fam. Code Ann.
§ 106.002; see also Bruni v. Bruni, 924 S.W.2d 366, 368 (Tex. 1996); In
re T.D.C., 91 S.W.3d 865, 876 (Tex. App.--Fort Worth 2002, pet. denied)
(op. on reh'g).
Brown's attorney, BeAnn Sisemore,
testified before the associate judge that her hourly fee for this case was $250
and that she had expended approximately twenty hours of her time on the case,
for a total estimated fee of $5,000. In addition, Sisemore testified regarding
her experience as an attorney, described the services she performed in
connection with the lawsuit, and testified that her stated fee amount was
necessary and reasonable by Tarrant County standards. Although Smale
cross-examined Sisemore on this subject, he did not challenge her testimony that
she incurred twenty hours of fees, nor did he raise the argument that the
suggested $5,000 fee was unreasonable or unnecessary. (4)
On appeal to the trial court, Sisemore again testified to her experience, fees,
services performed and costs incurred, and stated that she was content to accept
the associate judge's recommendation of a $2,500 fee award. Smale then
cross-examined Sisemore, but did not question the reasonableness or necessity of
her stated fee amount nor challenge the associate judge's recommendation.
In light of the uncontradicted
evidence presented by Sisemore as to the reasonable and necessary attorney's
fees incurred in defense of Smale's lawsuit, the associate judge was authorized
to make an award attorney's fees to Brown as the prevailing party. See
Tex. Fam. Code Ann. § 201.007(a)(8), (10). We hold that the trial court did not
abuse its discretion in awarding Brown $2,500 in attorney's fees based upon the
associate judge's recommendation and the evidence presented at the hearing on
appeal. See MacCallum v. MacCallum, 801 S.W.2d 579, 587 (Tex.
App.--Corpus Christi 1990, writ denied) (holding testimony of wife's attorney
stating his experience, his $175 hourly fee, and that the services he provided
were necessary and related to the proceeding sufficient to support the trial
court's finding and award of $1,680 in attorney's fees to wife in action brought
by former husband seeking modification of child support and visitation).
Because no issues of fact remained
for determination following the associate judge's rulings and recommendations, a
jury trial was not warranted in this case. We hold that the associate judge
properly denied Smale's request for trial by jury and overrule Smale's first
point.
D. Discovery
In his second point, Smale
complains that the trial court abused its discretion by refusing to allow him to
take the oral depositions of Brown, A.J.L., and E.M.L. We review a trial court's
discovery rulings, including orders prohibiting discovery, under an abuse of
discretion standard. Avary v. Bank of Am., N.A., 72 S.W.3d 779, 787
(Tex. App.--Dallas 2002, pet. denied); Helfand v. Coane, 12 S.W.3d 152,
155 (Tex. App.--Houston [1st Dist.] 2000, pet. denied). Unless there
is a clear abuse of discretion, the trial court's ruling should not be disturbed
on appeal. Avary, 72 S.W.3d at 787.
As the record indicates and the
trial court plainly found, Brown agreed to Smale's request for dissolution of
the permanent injunction. Brown's concession eliminated any need to pursue
discovery on the issue of the injunction. Thus, it was not an abuse of
discretion to deny Smale discovery on this matter. Likewise, it was not an abuse
of discretion to deny Smale discovery in furtherance of his attempt to modify
the Lunsford Custody Order because he lacked standing to initiate the suit for
modification under the family code. We overrule Smale's second point.
IV. Conclusion
We modify the trial court's
judgment to delete the language indicating that the attorney's fees it awards
are in the nature of child support and are to be paid as such. We affirm the
judgment as modified.
 
                                                                   
SUE WALKER
                                                                   
JUSTICE
 
PANEL B: DAUPHINOT, GARDNER, and
WALKER, JJ.
DELIVERED: May 8, 2003

1. Smale also urges that he has standing to modify the
Lunsford Custody Order because he filed an amicus curiae brief in that
modification proceeding. Smale cites no authority to support the proposition
that amicus curiae status confers party standing, nor have we located any such
authority. In fact, an amicus curiae, or "friend of the court," is
defined as "[a] person who is not a party to a lawsuit but who petitions
the court or is requested by the court to file a brief in the action because
that person has a strong interest in the subject matter." Black's Law
Dictionary 83 (7th ed. 1999). Therefore, we decline to follow Smale's
reasoning. Accord Torrington Co. v. Stutzman, 46 S.W.3d 829, 843-44
(Tex. 2000) (recognizing continuing, long-standing rule that "an appealing
party may not complain of errors that do not injuriously affect it or that
merely affect the rights of others").
2. At the hearing on appeal to the district court, Smale's
attorney made this contention clear, stating:

Your Honor, with all due respect,
  if this - - if these two cases had never been consolidated, then there would
  be some question. Maybe, there would be - - she would have a better argument
  that he was not a party affected by the order to be modified. But the fact is
  these two cases were consolidated. We've got one case. And this man was one of
  the original parties. He is, therefore, affected by any order entered in his
  suit and has standing under - - under the Family Code for modification.
  
3. The language used in the May 1, 2001 associate
  judge's report describing Smale's obligation as payment of Brown's
  "necessaries to defend this suit," supports this interpretation.
  4. Brown does not complain about the fact that the
  associate judge and trial court awarded only half of the $5,000 figure that
  Brown's attorney proposed as her reasonable and necessary fee.


