Attorney's Fees Award an Abuse of Discretion
In an unusual ruling, the Texas Supreme Court reversed an award of $47,178.50 in attorney's fees against a grandmother who unsuccessfully sought custody of her granddaughter. In In re: Moore, the Court held that although the grandmother ultimately had been unsuccessful in gaining custody of her granddaughter, she had "at all times subjected herself and [the child] to the jurisdiction of the trial courts, sought their decisions, and followed their rulings."
Shortly after the child's birth in December 2004, the grandmother petitioned the district court for custody of her grandchild. The trial court ordered that the grandmother have temporary custody. In May 2005, the child's mother asked the court of appeals to order the grandmother's suit dismissed because the grandmother had no standing to bring the suit under any provision of the Texas Family Code. The court of appeals granted the mother's request in June 2005, and the suit was dismissed.
But one of the bases for standing is that a person has had "actual care, control, and possession of the child for at least six months." More than six months had passed since the grandmother obtained temporary custody of her grandchild in December 2004, so the grandmother filed a new petition for custody in which she set out the new basis for standing.
Again the child's mother asked the court of appeals to order the lawsuit dismissed. The court of appeals ordered dismissal and that the grandmother pay the mother's attorney's fees as a sanction because of the grandmother's "intransigence and disregard for the previous judgment of this Court."
The Texas Supreme Court disagreed with that ruling. The Court noted that the second petition for custody was based on a different ground for standing than the first petition so that the grandmother had not disregarded the court of appeals judgment by filing the second petition. The Texas Supreme Court held that the court of appeals had abused its discretion when it ordered payment of these attorney's fees. It ordered the court of appeals to vacate that award.
