In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth

___________________________

No. 02-22-00451-CV

___________________________

Original Proceeding

481st District Court of Denton County, Texas

Trial Court No. 21-6418-393

Before Birdwell, Womack, and Walker, JJ.

Memorandum Opinion by Justice Womack

IN RE D.M.L., Relator
2

MEMORANDUM OPINION

I. INTRODUCTION

In this original proceeding arising out of a divorce case, relator D.M.L.

(Husband) seeks mandamus relief from the trial court’s order requiring him to pay 

interim attorney’s fees to real party in interest K.L. (Wife). Because the trial court 

clearly abused its discretion and because Husband lacks an adequate remedy by 

appeal, we conditionally grant mandamus relief and order the trial court to vacate its 

October 20, 2022 “Order on Petitioner’s Motion for Interim Attorney’s Fees.” 

II. BACKGROUND

Husband and Wife married in April 2008. Prior to marriage, they entered into 

a premarital agreement, which contained provisions addressing the characterization of 

their property—whether acquired before or after marriage—and delineating the 

parties’ respective rights and obligations in the event of a divorce proceeding.

Specifically, the agreement provides, among other things, that no joint or community

property would be created during the parties’ marriage; that all marital property would 

be owned by the separate estates of the parties; and that no community estate would 

be created during the marriage. Further, Husband and Wife agreed that in the event

of divorce, the parties would each be responsible for their own attorney’s fees and 

expenses and that neither party would be required to pay interim attorney’s fees, 

expenses, or costs to the other during the pendency of the divorce proceeding. 

In July 2021, Wife sued for divorce. Husband countersued shortly thereafter. 
3

On August 10, 2021, Judge Robison, presiding judge of the 393rd Judicial 

District Court,

1 held a hearing on the parties’ requests for temporary orders and 

Wife’s request for a protective order. Judge Robison named Husband and Wife joint 

managing conservators of their children and awarded Wife the exclusive right, within 

certain parameters, to designate the children’s primary residence. Husband was 

awarded visitation under the standard possession order and was ordered to pay child 

support and medical support. Husband was also ordered to pay Wife $5,000 in 

interim attorney’s fees on the basis that such fees were “necessary for [Wife’s counsel] 

to conduct discovery and properly prepare for trial and to protect the best interest of 

the children.” Wife’s request for a protective order was denied. 

In August 2022, Wife filed a motion seeking additional interim attorney’s fees 

from Husband. The motion alleged that because Wife owed her attorneys 

approximately $15,000 and had no funds in trust to cover the expected costs of 

mediation and trial, her attorneys would be forced to withdraw unless Husband was 

ordered “to pay interim attorney’s fees and to equalize fees going forward.” The

motion further alleged that Husband was “in possession of substantially more 

community funds and other community assets” than Wife and had possession of large 

1Though the parties’ divorce proceeding was originally assigned to the 393rd 

District Court, it was transferred to the 481st District Court in March 2022. 
4

quantities of gold as well as access to hundreds of thousands of dollars in cash.

2

 

Significantly, the motion did not reference the parties’ children—much less assert that 

the requested interim attorney’s fees were necessary for the children’s safety and 

welfare. 

Husband filed a response objecting to Wife’s motion for interim attorney’s 

fees. In his response, to which he attached a copy of the premarital agreement, 

Husband argued that Wife was estopped from seeking interim attorney’s fees and that

in any event, she was not entitled to the requested fees. 

On October 7, 2022, the trial court held a hearing on Wife’s motion for interim 

attorney’s fees. At the hearing, Wife’s counsel asserted for the first time that the 

interim attorney’s fees were necessary for the safety and welfare of the children—and 

that the premarital agreement therefore did not bar the payment of such fees. The 

trial court initially indicated that it would grant the motion based solely on the

pleadings and the arguments of counsel, but Husband’s counsel vehemently objected 

and insisted that evidence was necessary. After Wife’s counsel stated that she did not 

object to presenting evidence, the trial court heard testimony from Wife, Husband, 

and Wife’s attorney. 

2Because, as noted above, the parties’ premarital agreement provides that no 

community property or community estate would be created during the marriage, it is 

unclear to what “community funds” or “other community assets” the motion refers. 
5

While much of the testimony presented at the hearing concerned Wife’s and 

Husband’s current assets, Wife and her attorney were questioned regarding the basis 

for their assertion that the requested interim fees were necessary for the children’s 

safety and welfare. However, Wife was unable to specifically articulate why the 

interim fees were necessary to protect the children’s safety and welfare.

3

 Wife’s 

attorney stated in broad terms that the interim fees requested were for past work done 

and future work to be done for child-related issues and presented a table purportedly 

summarizing her firm’s fees incurred for issues affecting the children as of the date of 

the hearing as well as her firm’s invoices through September 15, 2022. 

Following the hearing, the trial court entered an order requiring Husband to 

pay the following amounts to Wife’s attorneys “for the safety and welfare of the 

children” pursuant to Section 105.001 of the Texas Family Code: $12,077.50 for 

work done through October 5, 2022, and an additional $15,000 to be held in trust for 

3The extent of Wife’s testimony on this key issue is contained in the following 

exchange:

Q: How? How is it for the safety and welfare of your 

children?

A: I mean that is a long story. I – I had to get a protective 

order against [Husband]. I had to file for divorce from him 

because I feared for my life. Okay. I have to protect them 

by divorcing him, and I’m incurring significant legal fees as 

a result.
6

future fees and expenses. Husband filed the present petition for mandamus 

challenging that order.

4

 

III. DISCUSSION

A. Standard of Review

Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 

25 (Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show 

both that the trial court clearly abused its discretion and that the party has no

adequate remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) 

(orig. proceeding). 

“A trial court has no ‘discretion’ in determining what the law is or applying the 

law to the facts. Thus, a clear failure by the trial court to analyze or apply the law 

correctly will constitute an abuse of discretion and may result in appellate reversal by

extraordinary writ.” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. 

proceeding). Further, challenges to the legal and factual sufficiency of the evidence 

are relevant factors in determining whether or not a trial court abused its discretion. 

In re Rogers, 370 S.W.3d 443, 445 (Tex. App.—Austin 2012, orig. proceeding). Thus, 

in evaluating whether a trial court abused its discretion, “we must engage in a twopronged inquiry, asking (1) whether the trial court had sufficient information on 

4Contemporaneously with his petition for mandamus, Husband filed a motion 

seeking an emergency stay of the divorce proceedings, including the order requiring

Husband to pay interim attorney’s fees. This motion, which has been carried with the 

case, is rendered moot by our decision on the merits of the petition.
7

which to exercise its discretion; and, if so, (2) whether the trial court erred in its 

application of discretion based on that information.” Id. (citing Zeifman v. Michels, 

212 S.W.3d 582, 587–88 (Tex. App.—Austin 2006, pet. denied)). 

B. Did Husband Preserve the Error?

In her response brief, Wife asserts that because Husband’s only objections to 

the form of the trial court’s order concerned the deadline for the payment and the 

source of the funds, Husband has failed to preserve the issues he raises in his petition. 

We disagree. 

For a complaint to be preserved for appellate review, the record must show 

(1) that the party presented a timely objection to the trial court that states the grounds 

for the ruling sought “with sufficient specificity to make the trial court aware of the 

complaint” and (2) that the trial court ruled—or refused to rule—on the objection. 

Tex. R. App. P. 33.1(a); see DHI Holdings, LP v. Deutsche Bank Nat’l Trust Co., 

650 S.W.3d 522, 525 (Tex. App.—Houston [14th Dist.] 2021, pet. filed) (supp. op. on 

reh’g). Here, Husband filed a written response objecting to Wife’s motion on the 

grounds that the premarital agreement precluded her from seeking interim attorney’s 

fees and that the court could not award attorney’s fees to “even the financial playing 

field.” In addition, Husband repeatedly objected to Wife’s fee request throughout the 

hearing on the motion, raising both arguments he now asserts in his petition for 

mandamus—that the premarital agreement prohibits Wife from seeking interim 

attorney’s fees and that Wife’s evidence was insufficient to show that the requested 
8

fees were necessary to protect the children’s safety and welfare. Despite having been

fully apprised of Husband’s objections, the trial court orally granted Wife’s motion at 

the conclusion of the hearing. Because Husband had clearly informed the trial court 

of his complaints to the motion and the trial court had ruled, Husband was not 

required to re-raise his substantive objections when presented with a proposed form 

of order reducing the trial court’s oral ruling to writing. See Tex. R. App. P. 33.1(a);

DHI Holdings, 650 S.W.3d at 525. Accordingly, error was preserved. 

C. Did the Trial Court Abuse its Discretion?

Husband argues that the trial court abused its discretion by ordering him to pay 

interim attorney’s fees to Wife because (1) the premarital agreement clearly prohibits 

the payment of such fees “during the pendency of any dissolution proceeding” and 

(2) the evidence was legally and factually insufficient to establish that the fees awarded 

were reasonable and necessary to protect the safety and welfare of the children. 

It is undisputed that the premarital agreement prohibits the payment of interim 

attorney’s fees incurred for divorce-related issues. Indeed, the language of the 

agreement is very clear:

During the pendency of any dissolution proceeding, neither party may 

be required to pay interim attorney’s fees, costs, or other expenses to the 

other party or the other party’s attorney. Each party further agrees to 

pay his or her own attorney’s fees, costs, and other expenses on final 

hearing of any dissolution proceeding. 
9

Thus, the only possible basis for the trial court’s award of interim attorney’s fees to 

Wife is that such fees were necessary to protect the “safety and welfare” of the 

children.5 Tex. Fam. Code Ann. § 105.001(a)(5). 

A party seeking interim attorney’s fees under Section 105.001(a)(5)—such as 

Wife in this case—has the burden to show that the requested fees are necessary to 

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

Sartain, No. 01-07-00920-CV, 2008 WL 920664, at *2 n.2 (Tex. App.—Houston [1st 

Dist.] Apr. 3, 2008, orig. proceeding) (mem. op.). Where there is no immediate threat 

to the children’s safety and welfare, an award of attorney’s fees under Section 

105.001(a)(5) is generally inappropriate. See In re Payne, No. 03-17-00757-CV, 

2018 WL 1630933 at *3 (Tex. App.—Austin Apr. 5, 2018, orig. proceeding) (mem. 

op.); In re T.M.F., No. 09-10-00019-CV, 2010 WL 974577, at *2 (Tex. App.—

Beaumont Mar. 18, 2010, orig. proceeding) (per curiam) (mem. op.). Because Wife 

failed to show that the children’s safety or welfare was in jeopardy, the trial court 

abused its discretion in awarding her fees under Section 105.001(a)(5). 

First, with respect to the $12,077.50 in fees awarded for work already 

performed, such retroactive fee-shifting is not authorized by Section 105.001(a)(5). 

5Husband contends that the premarital agreement prohibits Wife from seeking 

any interim attorney’s fees, including those incurred for the protection of the 

children’s “safety and welfare.” Because we hold that the evidence was insufficient to 

show that the interim fees in question were necessary to protect the children’s “safety 

and welfare,” we need not decide whether the premarital agreement precludes Wife 

from seeking interim fees under Section 105.001(a)(5). See Tex. R. App. P. 47.1.
10

See Sartain, 2008 WL 920664, at *2; Saxton v. Daggett, 864 S.W.2d 729, 736 (Tex.

App.—Houston [1st Dist.] 1993, no writ). Section 105.001(a)(5) is concerned with

protecting children from existing, imminent threats to their “safety and welfare,” and 

retroactively shifting the burden to pay fees for work already performed—and from

which the children have already received any benefits—does nothing to guard against

present threats. See Saxton, 864 S.W.2d at 736 (recognizing that “the fruits of

discovery [that had previously been] accomplished . . . were already available and 

would in the future promote the safety and welfare of the children to the extent of 

their power to do so” and that “the extent of that power was not increased by 

retroactively shifting the cost of that discovery to [relator]”). Thus, the trial court 

abused its discretion in ordering Husband to pay these fees for work already 

performed. 

Though the $15,000 in fees awarded for future work—unlike those awarded 

for previously-performed work—could at least theoretically have been necessary to 

protect the children from a current threat to their safety and welfare, Wife failed to 

show that this was, in fact, the case. Indeed, there is nothing in the record to suggest 

the existence of an immediate threat to the children’s safety and welfare. See T.M.F., 

2010 WL 974577, at *2. When asked why the requested attorney’s fees were 

necessary to protect the children’s safety and welfare, Wife merely stated that she had 

previously sought a protective order against Husband and that she had filed for 
11

divorce—at least in part—to protect the children.6 However, this testimony 

concerning past dangers to the children’s safety and welfare is not evidence of an 

existing, imminent threat. Moreover, shortly after the divorce proceeding was 

commenced, the trial court entered temporary orders that eliminated any then-extant

threats to the safety and welfare of the children, and during her testimony, Wife did 

not allege that any new threats had emerged since the entry of the temporary orders.7 

6Both in her motion and in her response to Husband’s petition for writ of 

mandamus, Wife asserts that the interim attorney’s fees were necessary to “equalize 

attorney’s fees in this case” and “level[] . . . the playing field.” According to Wife,

without the “leveling of the playing field,” the children’s best interest will be trampled 

because of Husband’s superior resources. However, the children’s best interest is not 

the operative standard for awarding fees under Section 105.001(a)(5); rather, the trial 

court must consider only whether the requested fees are necessary to protect the 

children’s safety and welfare. See Tex. Fam. Code Ann. § 105.001(a)(5); In re Mansfield, 

No. 04-19-00249-CV, 2019 WL 2439104, at *2 (Tex. App.—San Antonio June 12, 

2019, orig. proceeding) (mem. op.). Thus, a court may not award fees under Section 

105.001(a)(5) in order to “level the playing field.” Payne, 2018 WL 1630933, at *2; see

Saxton, 864 S.W.2d at 736. 

7

In her briefing in this court, Wife—relying on McCain v. McCain, 636 S.W.3d 

679 (Tex. App.—Austin 2021, no pet.), and Marcus v. Smith, 313 S.W.3d 408 (Tex. 

App.—Houston [1st Dist.] 2009, no pet.)—argues that her lack of resources 

constitutes a “threat” to the children’s safety and welfare because without the 

payment of the requested fees, she will be unable to advocate for the children’s best 

interest. This is plainly an attempt to dress up her request to “level the playing field”

in the divorce proceeding in the clothing of a plea for protection of the children’s 

safety and welfare pursuant to Section 105.001(a)(5). However, as noted above, 

“leveling the playing field” is not a valid basis for awarding fees under Section 

105.001(a)(5). See Payne, 2018 WL 1630933 at *2; Saxton, 864 S.W.2d at 736. Further,

McCain and Marcus are distinguishable in that they are both modification cases 

involving fee awards pending appeal under Section 109.001(a)(5), which contains 

broader language than Section 105.001(a)(5). Compare Tex. Fam. Code Ann. 

§ 105.001(a)(5) (authorizing the court “to make a temporary order . . . for the safety 

and welfare of the child . . . for payment of reasonable attorney’s fees and expenses”),
12

Cf. T.M.F., 2010 WL 974577, at *2 (noting that “any immediate threat to the health 

and safety of the children” had been effectively eliminated by the trial court’s 

temporary orders). Further, while Wife’s counsel vaguely testified that Wife was 

requesting fees for “work that’s going to be done in the future for these kids,” she 

provided no specifics regarding the nature of this work or what threats, if any, to the 

children’s safety and welfare it would address.8 Thus, Wife failed to meet her burden

under Section 105.001(a)(5). See Rogers, 370 S.W.3d at 446; Sartain, 2008 WL 920664, 

at *2 n.2.

with id. § 109.001(a)(5) (stating that “the court may make any order necessary to preserve 

and protect the safety and welfare of the child during the pendency of an appeal as the court 

may deem necessary and equitable” (emphasis added)). Moreover, McCain, the primary case 

on which Wife relies to support her position, is factually distinguishable in that, unlike 

Wife, the mother in that case testified that she had exhausted all available credit and 

provided specific details concerning her budget and—crucially—how the children 

would be impacted if the court did not award her the requested fees. See 636 S.W.3d 

at 684–85. 

8The trial court based the $15,000 fee award on Wife’s counsel’s estimate of the 

additional billable hours to be incurred through the end of the divorce proceeding. 

However, this additional work, which includes eight hours each for (1) conducting 

and supplementing discovery, (2) attending mediation, (3) preparing for trial, and 

(4) attending trial, plus an additional three hours for preparing final orders, would 

appear to pertain to both divorce-related and child-related matters. Wife’s counsel 

made no attempt to distinguish between divorce-related work and child-related work 

in her estimate. Thus, even if Wife could show that some portion of this anticipated 

future work were necessary to protect the safety and welfare of the children, she

certainly has not shown that the entire $15,000 fee award is necessary for that 

purpose. As the movant, it was Wife’s burden to show the precise amount of fees

necessary to protect the children’s safety and welfare. See Rogers, 370 S.W.3d at 446.
13

Because Wife failed to present sufficient evidence to show that the children’s 

safety or welfare was in jeopardy if the fees were not awarded,

9

the trial court abused 

its discretion by ordering Husband to pay Wife interim attorney’s fees pursuant to 

Section 105.001(a)(5). See Rogers, 370 S.W.3d at 448; see also In re O’Connor, 

No. 03-21-00159-CV, 2021 WL 3868758, at *2–3 (Tex. App.—Austin Aug. 31, 2021, 

orig. proceeding) (mem. op.); Mansfield, 2019 WL 2439104, at *3; Payne, 2018 WL 

1630933, at *3; cf. In re Jenkins, No. 10-21-00169-CV, 2021 WL 4080260, at *3 (Tex. 

App.—Waco Sept. 8, 2021, orig. proceeding) (mem. op.) (directing trial court to 

vacate order awarding fees under Section 109.001(a)(5) of the Texas Family Code 

9Wife argues that because, in considering Wife’s fee motion, the trial court took 

judicial notice of its file and prior proceedings, including three previous evidentiary 

hearings held between August 2021 and October 2022, and Husband has not filed a 

record of these prior hearings with this court, we must presume that the evidence 

supports the trial court’s order awarding fees. First, we note that it is unclear exactly 

what the trial court judicially noticed. At one point the trial court stated, “I’ve already 

taken judicial notice of the Court’s file. But as to any testimony that took place, 

certainly, I would not be aware of it.” Second, a trial court may take not take judicial 

notice of testimony from prior proceedings in the same case. Guyton v. Monteau, 

332 S.W.3d 687, 692–93 (Tex. App.—Houston [14th Dist.] 2011, no pet.); see Tex. R. 

Evid. 201–04; Garza v. State, 996 S.W.2d 276, 280 (Tex. App.—Dallas 1999, pet. ref’d) 

(“[T]rial testimony is a mutable product of human memory and subject to different 

interpretations. It does not carry the high degree of indisputability required to justify 

taking judicial notice.”). “When evidence is the subject of improper judicial notice, it 

amounts to no evidence.” Guyton, 332 S.W.3d at 693 (first citing Augillard v. Madura, 

257 S.W.3d 494, 503 n.14 (Tex. App.—Austin 2008, no pet.); and then citing Paradigm 

Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 540 (Tex. App.—San Antonio 2004, 

pet. denied)). Thus, far from presuming that the evidence presented at these prior 

hearings supports the trial court’s order, we hold that the trial court abused its 

discretion to the extent that it relied upon any such evidence in ruling on Wife’s fee 

motion. See id. at 692. 
14

because “[t]here was no evidence that the children’s safety or welfare was at stake or 

in jeopardy if the attorney’s fees were not awarded”).

D. Does Husband Have an Adequate Remedy by Appeal?

Temporary orders issued pursuant to Family Code Section 105.001, such as the 

one here, “are not subject to interlocutory appeal.” Tex. Fam. Code Ann.

§ 105.001(e). Accordingly, “[w]hen a trial court abuses its discretion in the issuance of 

temporary orders in a [suit affecting the parent–child relationship], mandamus relief is 

proper because there are no adequate appellate remedies.” O’Connor, 2021 WL 

3868758, at *1; see also Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig.

proceeding) (holding mandamus to be an appropriate remedy because “the trial 

court’s issuance of temporary orders is not subject to interlocutory appeal”); Rogers, 

370 S.W.3d at 445 (“Assuming a clear abuse of discretion in a temporary order in a 

suit affecting the parent–child relationship, mandamus may lie on the basis that there 

are no appellate remedies that are considered adequate.”); T.M.F., 2010 WL 974577, 

at *2 (“Mandamus is a proper remedy to attack issuance of a temporary order issued 

in a custody case because such orders are not subject to interlocutory appeal.”). 

Moreover, because the trial court’s order required immediate payment of the fees and 

there is no guarantee that Husband would be able to claw back the fees once paid, a 

successful appeal of the order would not necessarily make Husband whole. Cf. In re 

Mansour, 630 S.W.3d 103, 105 (Tex. App.—San Antonio 2020, orig. proceeding)

(“When, as here, a trial court’s temporary orders under [S]ection 109.001 require the 
15

immediate payment of attorney’s fees, review of the award during a pending appeal 

does not provide an adequate remedy at law.” (quoting Mansfield, 2019 WL 2439104, 

at *2)); In re Jafarzadeh, No. 05-14-01576-CV, 2015 WL 72693, at *1 (Tex. App.—

Dallas Jan. 2, 2015, orig. proceeding) (mem. op.) (“[B]ecause the trial court’s order 

requiring interim payments of attorney’s fees during appeal is not conditioned on 

successful appeal and thus requires immediate compliance, consideration of relator’s 

complaint before the determination of the appeal of the final judgment is 

appropriate.”). Therefore, Husband lacks an adequate remedy by appeal, and 

mandamus review is appropriate.

10

IV. CONCLUSION

Because the trial court clearly abused its discretion by awarding Wife interim 

attorney’s fees pursuant to Section 105.001(a)(5) and because Husband has no 

adequate remedy by appeal, Husband is entitled to mandamus relief. Accordingly, we 

conditionally grant a writ of mandamus and direct the trial court to vacate its

10Citing In re Ford Motor Co., 988 S.W.2d 714, 722 (Tex. 1998) (orig. proceeding),

and In re Chu, 134 S.W.3d 459, 468 (Tex. App.—Waco 2004, orig. proceeding), Wife 

argues that mandamus review of an interim fee award is appropriate only in extreme 

cases in which a party’s ability to prosecute the case is jeopardized by having to pay—

or being unable to pay—the fees. However, these cases are distinguishable. Ford did 

not concern temporary fees awarded in a suit affecting the parent–child relationship; 

rather, it involved attorney’s fees issued as a discovery sanction under Rule 215 of the

Texas Rules of Civil Procedure. 988 S.W.2d at 718, 720–21. Moreover, the fees at 

issue in Chu were awarded to an attorney ad litem pursuant to Section 107.015 of the 

Family Code. 134 S.W.3d at 467–68. Wife has not cited any cases extending Ford’s or

Chu’s reasoning to proceedings concerning interim fees awarded under Section 

105.001(a)(5), and we decline to do so here. 
16

October 20, 2022 “Order on Petitioner’s Motion for Interim Attorney’s Fees.” See

Tex. R. App. P. 52.8(c). Our writ will issue only if the trial court fails to comply.

/s/ Dana Womack

Dana Womack

Justice

Delivered: December 22, 2022