## In the Court of Appeals Second Appellate Distri ct of Texas

at Fort Worth

___________________________ No. 02

- 22

- 00451

- CV

___________________________

Original Proceeding 481st District Court of Denton County, Texas Trial Co urt No. 21

- 6418

- 393

Before Birdwell, Womack, and Wal ker, J J. M emorandum Opinion by Justice Womack 

### I N RE 

### D .M.L. , Relator2 MEMORANDUM OPINION
I. I NTRODUCTION
In this ori ginal proceeding arising out of a divorce case , relator D

. M

. L

. (Husband) seeks mandamus relief from the trial c ourt ’ s order requiri ng him to pay interim attorney ’ s fees to real part y in interest K.L. (Wife )

. Because the trial court clearly abused its discret ion and because Husband lacks an ad e quate r emedy by appeal, we condi t

ion ally grant mandamus relief and ord er th e t rial court to vacate its
Octo ber 20, 2022 “ Order on Petitioner ’ s Mot ion for Inter

im Attorney ’ s Fe es. ”
II. B ACKGROUND Husband and Wife married in April 2008. Prior to marriage, they en tered into a premarital agreement , which cont ained provis ion s addressing the chara cterization of their property

— whether acquired before or after marriage

— and delineating the parties ’ respective r ights and obligation s in the event of a divorce proceeding. Specifically, the agreement provides , among other things, t h at no joint or community
property would be created during the parties ’ marriage ; t hat all marital property would
be ow ned by the separate estates of the parties ; and that no community estate wou ld be created during the marriage. F urther, Hu sband and Wi fe agreed that in the event
of divorc e, the parties would e a ch be respons ible for their own att orn ey ’ s fees and
expense s and that neither party would be required to pay in teri m attorney ’ s fees ,

e xpenses, or costs to the other during t he pendency of the divorc e proceeding. In July 2021, Wife sued for div orce. Husband co untersued short ly thereafter

.3

On August 1 0, 2021, Judge Rob ison , presiding judge of the 39 3rd Judicial
District Court , 1 he ld a hearing on the parties ’ requests for temp orary orders and
Wif e ’ s request for a protective order. Judge Rob ison named Husband and Wife joint managing con servators of their childre n an d awarde d Wife the ex clusive right , with in certain parameters , to designate the chi ldren ’ s primary residen ce . Husband was
awarded vis itation unde r the s tandard poss ession order and was ordered to pay child
support and med ical support. Husband w as also ordered to pay Wife $5,00 0 in
i nterim attorney ’ s fees on the basis that suc h fees wer e “ necessary for [Wife ’ s coun se l]
to conduct discov ery and proper ly prepare for t rial and to protec t the best interest of
the chil dren. ” Wife ’ s re quest for a protective order was denied.
I n August 2022, Wife filed a motion seeking a ddit iona l inter im attorney ’ s fees
from Husband. The motion allege d tha t because W i fe owed her attorney s
app ro ximately $15,000 and had no funds in trust to cover the expected costs of
mediation and trial , her at torneys would be forced to withdraw unless Husband was
ordered “ to pay interim attorney ’ s fe es and to eq ualize fees going forward

. ” T he motion further alleged that Husband was “ in possession of sub stantially more

commu nity funds and other community assets ” t h an Wife and had possession of large

1 Though t he parties ’ divorce p roceeding was originally assigned t o the 39 3rd District Cou rt, it was transferred to the 481st District Court in March 2022

.4

qu anti ties of gol d a s well as ac cess to hun d re ds of tho u sands of dollars in cash

. 2 Signi ficantly, the motion did not reference the parties ’ c hildren

— much less asser t that
the requested interim attorney ’ s fees were necessary for th e children ’ s safety and
welfare

. Husband filed a respon se ob j ecting to Wife ’ s motion for in terim a ttorney ’ s fees. In his response, to which he attached a copy of the premarital agreem ent, Husband argued th at Wife was est opped f rom seeking interim attorn ey ’ s fees and that in any event , sh e was not entitled to th e requested fees

. On October 7, 2022, the trial court held a hearin g on Wife ’ s motion fo r interim

attor ney ’ s fees. A t the hearing, W ife ’ s counse l asserted for the first time that the interim attorney ’ s fees wer e necessary for the safety an d welfare of the childr en

— and
that th e premarital agre emen t therefore d id not bar the payment of such fees. The
trial court i nitially indicat ed that it would grant the motion based solely on the pleadings and the arguments of counsel , but Husband ’ s co unsel vehemently objected
and insisted that evidence was n ecessary. After Wife ’ s counsel stated that she did not objec t to presen ting evidence , the trial court heard testimony from Wife, Hus band,
and Wife ’ s attorney
.

2 Because, a s note d above, the parties ’ premarital agree ment provides tha t n o com munity property o r community estate would be created durin g the marriage , it is unclear to what “community funds ” or “other communit y assets ” the motion refers.5

While much of the testimony presented at t he hearing concerned Wife ’ s and
Husband ’ s current a ssets, Wife and her at torney were quest ioned regar ding the basis
for their assertion that the requested in ter im fees were neces sary for the children ’ s safety an d w elfar e. However, Wife was unable to specifically articulate why the
interim fees were necess ary to protect the c hil d ren ’ s safety an d welfare

. 3 Wife ’ s

at torney stated in broad terms that the int er i m fees requeste d were for past work done
and future work to be done for child

- related issues and pr esented a tabl e purportedly summarizing her f

irm ’ s f e es incurred for issu es 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 follo wing amounts to Wife ’ s atto rneys “ for the safety and welf are of th e children ” pursuant to Sect ion 105.001 of the Texas Family Code : $ 12,077 .50 for
work done through Oc tober 5, 2022, and an additional $15,000 to be held in trus t for

3 T he extent of Wife ’s testimony on this key issue is cont ained in t he following
ex ch a ng e: 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 divor ce from him because I feared for my lif e. Okay. I hav e to prot ect them by divorcing him, and I ’ m incurring significant legal fees as a result.6

future fees and expenses

. Husband filed the prese nt petition for mandamus challenging that order

. 4
I II. D ISCUSSION
A. Standard of Review Mandamus relief is an extraordinary remedy. In re Acad., Ltd. , 625 S.W.3d 19, 25 (Tex. 2021) ( o rig. proceeding). The party seeking mandamus relief must show
bot h th at the trial court clearly abused its discretion and t ha t the party has no adequate reme dy by ap peal. In re Allstate In dem. Co

. , 622 S.W.3d 870 , 875 (Tex. 2021) (orig. proceeding

).

“ A trial court has no ‘discretion’ in determining what the law is or ap plying the law to the facts. Thus, a clear failure by the trial court to analyz e 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. 199 2) (orig. proceeding). Further, c hallenges 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. pro cee ding). Thus,
in evaluating whether a trial cour t abused it s discret ion, “ we must engage in a two

pronged inquiry, asking (1) whether the trial court had sufficient information on

4 Contemp oraneously with his petition for m andamu s , Husband filed a motion seekin g an emergency stay o f the divorce proceedings, including the order requiring H us band to pay in ter im attorney ’s fees. Th is motion , wh ich has been carried with the
case , is rendered mo ot by our decision on the merits of the petition.7

which to exercise its discretion; and, if so, (2) whether the trial court er red in its application of discretion based on that information.” Id. (citing Zeifman v. Miche ls , 212 S.W.3d 582, 587

– 88 (Tex. App.

— Austin 2006, pe t. denied) )

. B. Did Husband Preserve the Error ?
I n h er response brief, Wife assert s that because Husba nd ’ s only objection s to the form of the t rial co urt ’ s order concerned the deadline for the payment and the
source of the fu nds, Husband has failed to preserve the issues he raises in his pe tition. We disagree.
For a c omplaint to be preserved for appella te re view, 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 tria l court aware of the complaint ” and (2) tha t the trial court ruled

— or refused to rule

— on the object ion

. Te x. R . App. P. 33.1 (a) ; see DHI Holdings, LP v. Deut sche Ba nk Nat ’

l Trust Co. , 650 S.W.3d 522 , 525 (Tex. App.

— Houston [14 th Dist.] 2021, pet. filed ) (supp

. o p. on reh ’ g)

. H ere, H usband filed a written response objec tin g to Wi fe ’ s m otion on the grounds that the prema rital agreement pre clu ded her from seeking interim attorney ’ s fees and that the court could not award attorney ’ s fees to “ eve n the financial play ing
field. ” In addition, Husband r epeatedly objected to Wi f e ’ s fee request thro ughout the hearing on the motion , raising both arguments he n o w asserts in his pe ti tion for
mandamus

— that th e pr ema ri tal agreement prohibits Wife from seeki ng interim
attorney ’ s fees and that Wife ’ s evidence was insuf ficient to show tha t t he requested8

fees were necessary to prot ec t the chi ldren ’ s safety and welfare. Despite h aving been fully appr ised of Husband ’ s o b ject ions, the trial court orally granted Wi fe ’ s motion at
the conclusion of the hearing. Because Hu sband had cl e arly infor med the trial court
of his complaints to the moti on and the trial court had ruled , Husband was not required to re

- rais e his substantive object ions when presented with a proposed form
of order re ducing the tria l court ’ s oral ruling to writing

. See Te x. R. App . P. 33. 1 (a) ; DHI Holding

s , 650 S.W.3d at 525

. Accordingly, error was p reserv ed.
C. Di d the Trial Court Abuse i ts Discret ion?
Husb and argues that the t rial court abused its discret ion by ordering him to pay interim attorney ’ s fees to Wi fe because ( 1) the premarital agre emen t clearly pr ohibits the payment of such fees “ during the pendency of a ny dissolution proceed ing ” and (2) the evidence was lega lly and factuall y insufficient to establish that the fees awar ded

were reasonable and necessary to prote ct the safety and welfare of the children.
I t is undisputed that the prema rital agre ement pro hibi ts the payment of interim
attorney ’ s fees incurred for divorce

- related issues

. Indee d, the language of th e agreement is very clear : During the pendency of any dissolution proceeding, neither party may be req uired to pay interim attor n ey ’ s fees , costs, or other expenses to the other party or th e othe r party ’ s at torney. Each party further agrees to pa y his or her own a ttorney ’ s f ees , costs, and other e xpenses on final hea ring of any dissolution proceeding.9

Thus, the only pos sible basis for the trial cour t ’ s award of interim attorn ey ’ s fees to
Wife is t hat such fees were neces sary to protect the “ safety and welfare ” of the
children. 5 Tex. Fam. Code Ann. § 10 5.0 01(a) (5). A p arty seeking interim attorney ’ s fees under Sect ion 105.001(a)(5)

— such as
Wife in this case

— has the burden to show that the requested fees are nec essary to protect the safe ty and welfare of the children. Rogers , 370 S.W.3d at 44 6; 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 saf

ety and welfare , an award of attorney ’ s fees under Sect ion
105.00 1(a )(5) is generally inappropriate

. See In re Pay ne , 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. p roc eeding) (per curiam) (mem. op.)

. Because W if e failed to show tha t th e children ’ s safety or welfare was in jeopardy , the trial court
abused its discretion in awarding her fees under Sect ion 105.001(a)(5)

. First , with respect t o the $12,077.50 in fees awa r ded for work alr eady perfo rmed, such retroactive fee

- shifting is not author ized by Sect ion 105.001 (a)(5).

5 Husband contends that the prema rital agreement prohibits Wife from seeking any interim attorney ’s fe es , i ncluding tho se incurred for th e protection of th e children ’s “ safety an d welfare

. ” B ecaus e we hold that the evidence was insu fficient to show that the interim fees in question were necessary to p rotect the children ’s “safety and welfare , ” we need not deci de whether t he prema rital agreement prec ludes Wife from seeking interim fees under Sect ion 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)

. Sect ion 105.001(a)(5) is concerned with protecting child ren from exi sti ng, imminent threat s to their “ safety and welfare , ” and

r etroactively shifting the burden to pay fees for work already p erformed

— and f rom which the chil dren hav e a lready received any benefit s
— does nothing t o g uard ag ains t present threats. See Saxton , 864 S.W. 2d at 736 ( rec ogni zing 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 ex ten t of their power to do so ” and that “ the extent of that power was not increased by retroactively shifting t he cost of that discovery to [relator] ” )

. Thus, the trial court abused its discretion in orderi ng Husband to pa y these fees for w ork already
per f orm ed

. T hough the $15,000 in fees awarded for future work

— unlike t h ose awarded
for previously

- performed work

— could at least theore tically have been necessary to
pr ot ect the children from a current threat to their safety an d w elfare, Wi fe f ailed to show t hat this w a s , in fac t , the ca se. Indeed, there is nothing in the re cord to suggest
the existence of an immediate threat to the children ’ s sa fety and welfare

. See T.M.F. , 2010 WL 974577, at * 2 . When asked why the re quested attorney ’ s f ees were
necessary to protect the children ’ s safety and welfare, Wife merely s tated tha t she had previously sought a protecti ve order against Husband and that she had f iled for11

divorce

— at least in pa rt

— to p rotect the children. 6 Howeve r, this testimony

concern ing past danger s t o the children ’ s s afety and welfare is not evidence o f an existing, immin ent threat. Mor eover, shortly after the divorce p roceeding was commenced, the trial court entered temporary o rders that e liminated any then

- ex tant threat s to the saf

ety and welfar e o f the children , and during her t estim ony , Wife did

not allege that any new threats ha d emerged since th e ent ry of th e temporary o rders. 7

6 Both in her motion and in her response to Husban d ’ s petition for w rit of mandamus, W ife asserts that the interim atto rne y ’ s fees were nec essary to “ equalize attorney ’ s fees in this case ” and “ level [] . . . the playing f ield

. ” According to Wife, without the “ leveling of the playing field , ” the children ’ s best interest will be tram pled becaus e of Husband ’ s su perior resour ces. However , th e c hildren ’ s best interest is not the o perative standard for awarding fees under Sect ion 105. 001(a) (5) ; rather, the trial court must consider only whether the requested fees are necessary to protect the ch i ldren ’ s sa fety and welfare. See T ex. Fam . Code An n. § 105 .00 1(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 und er Sect ion 105.001(a) (5) in ord er t o “ level the playin g fie ld

. ” Pay ne , 20 18 WL 16 30933 , at * 2; see Saxton , 864 S.W.2d at 736

.

7 In her briefing in this court, Wife

— r elying 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. ] 200 9, no pet.)

— arg ues that her lack of resource s constitutes a “threat ” t o the children ’s safety and welf are because without the payment of the requested fees, she will be unable to advocate for the children ’s best inter est
. T his is plainly an attempt t o dre ss up her re q ue st to “ l evel the playing field ” in the d ivorce proceeding in the clothing of a plea for protection of the children ’s safety and welfare pursuant to Sect ion 105.001(a)(5). However, as noted above , “level ing the playing field ” is not a v alid basis for aw ard ing fees u nder Sect ion 105.001(a)(5). See Pay ne , 2018 WL 1630933 at * 2; Saxton , 864 S.W.2d at 736

. Further , M cCain and Marcus are distinguishable in that th ey are both modification cases involv ing fee a wards pending appeal und er Sec ti on 10 9.001(a)(5), wh ich cont ain s b roader language tha n Sect ion 105.001(a)(5). C

ompare Tex. Fam. Code Ann. § 105.001(a)(5) ( authori zing the cou rt “ to make a temporary order

. . . for the safety and welfare of the ch ild

. . . for payment of reasonable attor ney ’ s fees and ex pen ses ” ) ,12

C f. T.M.F. , 2010 WL 974577, at * 2 ( noting th at “ any immediate threat to the health and safety of the children ” had bee n effectively e liminated by the trial court ’ s temporary orders). Further, w h ile W ife ’ s counsel vagu ely testified that Wi fe was
requ esting fee s for “ work that ’ s going to be done in t he future for these kids, ” she
pro vide d no specifics regarding the natu re of this work or w hat threats , if any, to the
children ’ s saf

ety and welfare it would address. 8 Thus, Wife failed to meet her burden
unde r Section 105.001(a)(5). See Rogers , 370 S.W.3d at 44 6 ; Sartain , 2008 WL 920664,
at *2 n.2

.

w ith id. § 109.001(a)(5) ( stat

ing 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 ad ded ) )

. M oreove r, McCain , the pr imary case
on which Wife relies to support her posi t ion , is factually distinguishable in that , unlik e Wife, the mothe r in that cas e testified that she had exhausted all ava ilable credit and provid ed specific details concer ning her budget a nd

— cruc iall y
— how the children would be impacted if the court did no t award her th e requested fees. See 636 S.W.3d at 684

– 85.

8 The trial court based the $15,000 fee award on Wife ’s co unsel ’s estimate of the addit ional billable hours to be in curred throu gh the end of the divorce proceeding. How ever, this additional work , which includes eight hours each for (1) conducting and suppleme nting discovery, (2) attending me diation, (3) preparing for trial, and (4) attending trial , plus an additi onal three hours for prepari ng fina l orders, would appear to pertain to b oth divorce

- related and child

- related matt ers. Wi f e ’s counsel made no attempt to d istinguish betwee n div or ce

- related work and child

- related work in her estimate

. Thus, e ven if Wife could show that s ome portion of this anti cip ated future work were necessary to prote ct the safety and welfar e of the children, she certainly has not shown that the entire $1 5,000 fee award is necessary for that purpose
. As the movant, it was Wife ’s burden to s how the prec ise amount of fees necessary to protect the children ’s saf e ty and w elfare. See Rogers , 370 S.W.3d at 446

.13

Because Wife failed to p res ent sufficient evide nce to show t hat the children ’ s safety or welfare was in jeopardy if the fees were n ot awarded , 9 the tria l court abused
its di scret i on b y orderin g Husband to pa y W ife interim attorney ’ s fees pur suant to Section 105.001(a)(5 ). See Ro ger s , 370 S.W.3d at 44 8 ; see also In re O ’ Co nnor , N o . 03

- 21

- 00159

- CV , 2021 WL 3868758 , at * 2

– 3 (Tex. App.

— Austin Aug. 31, 2021, orig . proceeding) (m em. op.) ; Mansfield , 2019 WL 2439104 , at *3 ; Pay ne , 2018 WL
1630933 , at * 3 ; cf. In re Jenkin s , No. 10

- 21

- 001 69

- CV , 2021 WL 408026 0 , at *3 (Tex. App.

— Waco Sept. 8, 2021 , orig. procee ding) (mem. op.) ( dir ecting trial court to

vacate order awarding fees under Sect ion 109.001( a)(5) of th e Texas Family Code

9 Wife a rgue s t hat because , i n considering Wi f e ’s fee m otion, the trial co urt took judicial notice of its file and prior proceedings, incl uding three pre vious ev identiary hearing s held between August 2021 and October 2022 , and Husband has not filed a record of thes e prior hearings with this court, we must presume that th e evidence supports the tria l court ’s order awarding fees

. First, we no te that it i s u nclear e xactly what the trial court judicially noticed. At one point the trial court stated, “ I ’ ve already taken judicial notice of the Cou rt ’ s file. But as to any testim ony that took place, certainly , I would not be aware of it

. ” Se cond , a trial co u rt may take not ta ke judicial notice of testimony from prior proceeding s in the same case. Guyton v. Monteau , 332 S.W.3d 687, 69 2

– 9 3 (Tex. App.

— Houston [14th Dist.] 2011, no pet.) ; see Tex. R. Evid. 2 01

– 04 ; Garza v. State , 996 S.W.2d 276, 280 (Tex. App.

— D all as 1999, pet. ref ’ d) (“[T]rial testi mony 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 th e subject of im proper j udicial 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, 5 40 (Tex. Ap p.

— San Antonio 2004, pet. denied) ). Thus, far from presuming that th e evidence presented at these prior hearings suppor ts the t rial court ’ s order, we hold t hat the trial court abused its discret ion to the extent that it relied up o n any such evi den ce in ru ling 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 Ha ve an Adequate Remedy by Appeal? Temporary orders issued pursuant to Fa mily Code Sect ion 105 .001 , such as the one here, “are not subject to interlocutory a ppe al.” T ex. Fam. Co de Ann. § 10 5 .001( e ). Accordingly , “[w] hen a trial court abuses its discretion in the issuance of
temp orary orders in a [suit affecting the parent

– child relat

ionship] , mandamus relief is proper because there are no adequate appellate rem edies. ” O’Connor , 2 021 WL 3868758, at * 1 ; see a lso Dancy v. Daggett , 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding) (holding mandamus to be a n appropriate remedy because “the trial

court ’ s issuance of temporary orders is not subject to interlocutor y a ppeal”) ; Rogers , 370 S.W.3d at 445 (“Assuming a clear abuse of disc retion 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. , 20 10 WL 974577,

at *2 ( “ Mandamus is a proper remedy to attack issuance of a temporary order issued in a custody case because su ch orders are not subject to interlocutory appeal. ” )

. Moreover , because the trial co ur t ’ s or der require d imme diate paym ent of t he fees and
there is no guarantee that Husband would be a b le to claw back the fees once paid, a successful a ppeal of the orde r would not necessarily make Husband whol e . Cf. In re
Mansour , 630 S.W.3d 103, 105 (Tex. App.

— San Antonio 2020, orig. proceeding) ( “W hen, as here, a tria l court ’ s temporary orders under [S] ection 109.001 require the15

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 appe al an d thus requires im mediate compliance, consideration of relator ’ s complaint before the determination of the appeal of the final judgment is appropriate. ”). T herefore, Husband lacks an a dequate remedy by appeal , and
mandamus review is approp riate

. 10

I V. C ONCLUSION
Because t he trial court clearly abused its discretion by awarding Wife interim
attorney ’ s fees pursuant to Sect ion 105.001(a)(5) and because Husband has no adequate remedy by appeal, Husband is entitled to mandamus relief. Accordingly, we

con dit ionally grant a wri t of mandamus and direct the trial court to vacate its

10 Citing In re Ford Motor Co. , 988 S.W.2d 714, 722 (Tex. 1998) (orig. proce eding) , and In re Chu , 134 S .W. 3d 459 , 468 (Tex. App.

— Waco 2004, orig. proceeding), Wife argues that mandamu s rev iew of an in ter im fee a war d is appropriate only in extreme cases in which a party ’s ability to prosecute the case is jeopardized by having to p ay
— o r being unable to pay

— the fees. Howeve r, these cases are distinguishable. Ford did not concern tempora ry fe es awarded i n a suit af fecting the parent

– child relat

ionship ; rather , it inv olved attorney ’s fees issued as a disco very sanction und er Rule 215 of the Texas Rules of Civil Procedure

. 988 S.W. 2d at 718, 720

– 21 . Mo reove r , the fee s at issue in C hu we re awa rd ed to a n att orn ey ad li tem pursuan t to Sect ion 107.015 of th e Family Code

. 134 S .W. 3d at 46 7

– 6 8

. Wife has not cited any cases extend ing Ford ’s or Chu ’s re asoning to proce edings concerning in terim fees awar ded under Sect ion 105.001(a)(5), and we decl i ne t o do so here

.16

October 20, 2022 “ Order on Petit ioner ’ s Mot ion 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 Wom ack Justice
Deli vered: December 22, 2 022