O'Neil & Attorneys Prevail on Appeal: Award of Attorney's Fees Must Have Proper Legal Basis

Last week the Dallas Court of Appeals issued its opinion in Shilling v. Gough, holding that the trial court erred by awarding attorney’s fees without a proper legal basis. Michelle May O’Neil and I represented Shilling in his successful appeal.

In the underlying post-divorce proceedings, Shilling brought a suit to enforce an injunction contained in the parties’ divorce decree that prohibited his ex-wife, Gough, from disclosing his private information to third parties. Gough filed an answer requesting attorney’s fees that failed to specify the statutory authority under which she sought recovery.

The Dallas Court of Appeals reversed the trial court’s erroneous award of fees to Gough and rendered judgment in favor of Shilling. The opinion reiterates the well-settled rule that — absent a statute or contract — Texas courts do not have the inherent authority to require the losing party to pay the prevailing party’s fees. While Gough argued that she was entitled to fees under Chapter 9 of the Texas Family Code (which allows a party to enforce a property division contained in a divorce decree) and as sanctions, the Dallas Court of Appeals found (1) Chapter 9 is inapplicable because this was not an action to enforce a property division, and (2) an award of sanctions against Shilling under the circumstances of this case would be improper and would violate his constitutional right to due process. With no appropriate contractual or statutory basis, the trial court’s judgment was improper.

This opinion is important to vast area of post-divorce enforcement actions that we encounter as Texas divorce attorneys. The Dallas Court of Appeals has clarified the power of a trial court to award attorney’s fees under Chapter 9 of the Texas Family Code and the requisite procedure for an award of attorneys fees as sanctions.

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