In re Jafarzadeh
Dallas Court of Appeals, No. 05-14-01576-CV (January 2, 2015)
Justices Lang-Miers (Opinion), Myers, and Stoddart
In a suit affecting the parent-child relationship (“SAPCR”), the trial court issued temporary orders awarding attorney’s fees to the party who would be the appellee in any appeal from the final judgment in that case. The temporary orders provided for interim payments during the pendency of any appeal and, most significantly, did not condition the award of fees upon the appellee’s success in the appeal. The party ordered to pay those fees, the appellant in the appeal from the final judgment, sought mandamus relief from those temporary orders because the fees were not conditioned on success in the appeal. Although interlocutory appeal of temporary orders is forbidden by statute in SAPCR cases, the Dallas Court of Appeals agreed to hear the mandamus petition, noting that appeal after final judgment would not provide adequate relief in light of the directive for interim payments during the pendency of the appeal. But the Court denied mandamus relief. It acknowledged that, in most instances, an award of appellate attorney’s fees must be conditioned on a successful appeal. In conventional situations, an unconditional award of appellate fees inappropriately chills one side’s exercise of its legal right to appeal. But, the Court held, that “chilling effect” rationale does not apply to temporary orders in a SAPCR case. There, the award is issued as part of the trial court’s attempt to preserve the best interests of the child—including ensuring that an appellee has adequate resources to defend a final judgment on appeal, win or lose. In so ruling, the Dallas Court acknowledged it was parting ways with other courts of appeals, including Fort Worth, San Antonio, and the Houston First, which have reached a contrary conclusion. Consequently, this decision may well see review by the Supreme Court in Austin.
