      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-15-00062-CV



                                       In re William Wiese


                      ORIGINAL PROCEEDING FROM TRAVIS COUNTY



                             MEMORANDUM OPINION


               Relator William Wiese seeks a writ of mandamus compelling the trial court to vacate

that portion of its January 15, 2015 temporary orders requiring Wiese to pay $25,000 in appellate

attorney’s fees to counsel for real party in interest Fadya AlBakry no later than February 2, 2015.1

For the following reasons, we will conditionally grant relief.

               Wiese and AlBakry were divorced in 2005, and the agreed final decree of divorce

provided that the parties were appointed joint managing conservators of their two children. The

decree also granted Wiese the exclusive right to determine the primary residence of the children and

prohibited the parties from traveling internationally with the children without the written consent of

the other party.

               AlBakry subsequently filed suit seeking to modify the parent-child relationship and,

on September 19, 2014, following an evidentiary hearing, the trial court modified the 2005 decree

to allow both parties to travel internationally with the children. Wiese filed his notice of appeal,


       1
         Upon Wiese’s emergency motion, we temporarily stayed the trial court’s temporary order
pending further order of this Court. See Tex. R. App. P. 52.10.
seeking review of the trial court’s final judgment modifying the 2005 decree.2 AlBakry then filed

a motion seeking periodic child support pending the appeal and for appellate attorney’s fees under

section 109.001 of the Texas Family Code. See Tex. Fam. Code § 109.001(a) (authorizing temporary

orders during pendency of appeal). It is the trial court’s ruling on this motion for temporary orders,

granting AlBakry’s request for appellate attorney’s fees, that is the subject of this original proceeding.


                                    MANDAMUS STANDARD

                A writ of mandamus will issue only to correct a clear abuse of discretion for which

the relator lacks an adequate remedy by appeal. See Walker v. Packer, 827 S.W.2d 833, 839-40

(Tex. 1992) (orig. proceeding). In a suit affecting the parent-child relationship, a trial court may

render temporary orders “necessary to preserve and protect the safety and welfare of the child during

the pendency of the appeal,” including an order that “require[s] payment of reasonable attorney’s

fees and expenses.” Tex. Fam. Code § 109.001(a)(5). When a trial court’s temporary orders under

section 109.001 of the Family Code require the immediate payment of attorney’s fees, review of the

award “during the pending or imminent appeal does not provide an adequate appeal in conjunction

with the final judgment of the case.” In re Jafarzadeh, No. 05-14-01576-CV, 2015 WL 72693, at

*1 (Tex. App.—Dallas Jan. 2, 2015, orig. proceeding) (mem. op.); cf. Halleman v. Halleman, 379

S.W.3d 443, 455 (Tex. App.—Fort Worth 2012, no pet.) (concluding that appellant could challenge

appellate attorney’s fees award in pending appeal from final judgment because order conditioned

payment of fees upon opposing party’s success on appeal). Accordingly, under these circumstances,


        2
         The appeal of the trial court’s final judgment in the modification proceeding is currently
pending before this Court and has been assigned cause number 03-14-00799-CV.

                                                    2
mandamus relief is appropriate when it is shown that the trial court abused its discretion in ordering

the award of attorney’s fees pending appeal. See In re Garza, 153 S.W.3d 97, 100 (Tex. App.—San

Antonio 2004, orig. proceeding).

                A clear abuse of discretion occurs when the trial court’s decision is so arbitrary and

capricious that it amounts to clear error. Walker, 827 S.W.2d at 839. Because a trial court has no

discretion in determining what the law is or applying the law to the facts of the case, the failure to

analyze or apply the law correctly constitutes an abuse of discretion. Id. at 840. Further, legal-

and factual-sufficiency challenges to the evidence are relevant factors in assessing whether the trial

court abused its discretion. In re Rogers, 370 S.W.3d 443, 445 (Tex. App.—Austin 2012, orig.

proceeding); see Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied).

In reviewing the evidence in the context of an abuse-of-discretion standard, we engage in a two-

pronged inquiry: (1) whether the trial court had sufficient information on which to exercise its

discretion; and if so, (2) whether the trial court erred in the application of discretion; that is, whether

based on the evidence, the trial court made a decision that was neither arbitrary nor unreasonable.

Zeifman, 212 S.W.3d at 588.


                                             DISCUSSION

                In support of his request for mandamus relief, Wiese argues that the trial court

abused its discretion because AlBakry failed to present evidence establishing that the award of

appellate attorney’s fees was “necessary to preserve and protect the safety and welfare of the




                                                    3
child[ren] during the pendency of the appeal,” as required by section 109.001 of the Family Code.3

We agree.

                As the party requesting temporary orders under section 109.001, AlBakry had the

burden of demonstrating to the trial court that the requested attorney’s fees were necessary to

preserve and protect the safety and welfare of the children. See In re Rogers, 370 S.W.3d at 446

(noting that party seeking temporary order for appellate attorney’s fees had burden of proof). At the

hearing on her request for temporary orders, AlBakry did not present any evidence concerning the

safety and welfare of the children. Instead, AlBakry’s attorney presented argument that Wiese had

significantly more financial resources than AlBakry, that the appeal would “divert her economic and

lack of resources away from the children,” and that her time invested in the appeal would affect her

ability to earn income for the support of the children.

                AlBakry points to evidence presented at the modification hearing that, according to

her, demonstrates that the children will benefit from being able to travel internationally and,

consequently, develop a relationship with her family that lives in Oman, AlBakry’s country of birth

and citizenship. AlBakry argues that “it will be enriching to the children to visit their heritage in

Oman” and that the children have “a right to have a relationship with a part of their family that

lives in Oman.” AlBakry asserts that this right can only be preserved during the pendency of the

appeal through the award of attorney’s fees because she cannot otherwise afford to retain an attorney


       3
         To the extent the issues in this mandamus proceeding turn on the construction of section
109.001, we review these questions de novo. See State v. Shumake, 199 S.W.3d 279, 284 (Tex.
2006). In construing statutes, our primary objective is to give effect to the legislature’s intent, id.,
and we rely “on the plain meaning of the text as expressing that intent unless a different meaning is
supplied by definition or is apparent from the context, or the plain meaning leads to absurd results.”
Texas Lottery Comm’n v. First State Bank of DeQueen, 325 S.W.3d 628, 635 (Tex. 2010).

                                                   4
and, as a result, Wiese “will win by default.” According to AlBakry, this evidence concerning

the benefits of international travel is sufficient to support the trial court’s determination that the

trial court’s temporary orders requiring the payment of attorney’s fees was “necessary to protect the

safety and welfare of the children.”

                Although AlBakry has argued that there is a disparity in income between the parties,

AlBakry did not present any evidence of this disparity at the hearing for temporary orders or present

any specific evidence that would suggest that this disparity, in conjunction with her bearing the cost

of her own appellate attorney’s fees, would negatively affect the children during the pendency of the

appeal.4 See In re Rogers, 370 S.W.3d at 447 (granting mandamus relief and concluding that real

party in interest produced no evidence that award of interim attorney’s fees was necessary “to protect

the safety and welfare of the child” under analogous family code provision and noting that although

real party in interest had testified that litigation was negatively impacting her financial resources, she

failed to testify how her finances were affecting children). Section 109.001 does not authorize a trial

court to award appellate attorney’s fees solely on the ground that there is a disparity in income

between the parties. See Tex. Fam. Code 109.001(a); In re Rogers, 370 S.W.3d at 445 (noting that

standard of “safety and welfare of the child” under analogous family code provision “does not

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

than safety and welfare of the child’”) (quoting Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex.


        4
          AlBakry also did not offer evidence regarding the alleged need for the children to travel
at the hearing on the temporary orders nor did she ask the trial court to take judicial notice of the
earlier hearings in this case. See Tex. R. Evid. 201(c). Nevertheless, we will assume without
deciding that evidence was previously presented by AlBakry concerning her request for international
travel and of the parties’ relative income at the hearing on her petition for modification and that this
evidence was properly before the trial court in ruling on AlBakry’s motion for temporary orders.

                                                    5
App.—Houston [1st Dist.] 1993, no writ)); In re Sartain, No. 01–07-00920-CV, 2008 WL 920664,

at *2 (Tex. App.—Houston [1st Dist.] Apr. 3, 2008, orig. proceeding) (mem. op.) (vacating award

of interim attorney’s fees under analogous family code provision, explaining that statute does not

authorize award on ground that relator “was in a better position to pay the fees than real party in

interest”). Therefore, the trial court abused its discretion to the extent its decision to award appellate

attorney’s fees was based on its determination that Wiese was in a better position financially to pay

the fees.

                In addition, assuming that evidence related to the underlying issues on appeal may,

under certain circumstances, support an award of appellate attorney’s fees under section 109.001,

we conclude that there is no evidence that would support the trial court’s award of appellate

attorney’s fees in this case. See In re T.M.F., No. 09-10-00019-CV, 2010 WL 974577, at *2

(Tex. App.—Beaumont Mar. 18, 2010, orig. proceeding) (mem. op.) (per curiam) (reviewing trial

court’s award of interim attorney’s fees under analogous family code provision and noting that

underlying issues may relate to “the safety and welfare of the children”). Whether the trial court’s

decision to lift the travel restrictions in the 2005 divorce decree is in the best interest of the children

is the primary issue in the underlying appeal of the trial court’s judgment in the modification

proceedings. AlBakry’s argument that appellate attorney’s fees are necessary to preserve the

children’s interest in traveling internationally is, in effect, an argument that the fees are generally

necessary to “level the playing field” in defending the trial court’s best-interest determination on this

issue. See Saxton, 864 S.W.2d at 736 (rejecting argument that award of interim attorneys fees under

analogous family code provision was necessary to “level the playing field” in suit). However, the

children’s best interest is not the operative standard under section 109.001; rather, the trial court

                                                    6
must consider only those matters that affect the “safety and welfare of the child[ren] during the

pendency of the appeal.” See Tex. Fam. Code § 109.001(a). AlBakry does not explain, and we do

not see, how the ability of the children to travel internationally relates to their “safety and welfare.”


                                           CONCLUSION

                Based on the record before us, we conclude that AlBakry failed to present any

evidence that would support a finding that an award of appellate attorney’s fees was “necessary to

preserve and protect the safety and welfare of the child[ren] during the pendency of the appeal.”

See id. As a result, the trial court abused its discretion in ordering Wiese to pay $25,000 in

attorney’s fees to AlBakry’s attorney.5 We conditionally grant the petition for writ of mandamus

and direct the trial court to vacate its order compelling Wiese to pay appellate attorney’s fees. The

writ will issue only if the trial court fails to comply. We lift our stay as to all portions of the

trial court’s January 15 temporary orders other than that portion requiring the payment of appellate

attorney’s fees that is the subject of the mandamus relief conditionally granted.



                                                __________________________________________

                                                Scott K. Field, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Filed: May 8, 2015



        5
         Having determined that the trial court abused its discretion on this ground, we do not reach
Wiese’s alternative argument that the trial court abused its discretion by failing to condition its award
of appellate attorney’s fees on AlBakry’s success on appeal or on the return of any attorney’s fees
not actually incurred by AlBakry on appeal.

                                                   7
