Full Opinion

Court of Appeals Tenth Appellate District of Texas 10-26-00321-CV In re Mackinsey Lynn Johnson Original Proceeding JUSTICE SMITH delivered the opinion of the Court. MEMORANDUM OPINION Mackinsey Lynn Johnson filed a petition for writ of mandamus requesting this Court to direct the 85th Judicial District Court of Brazos County, Texas to vacate the portions of its August 3, 2026 temporary order requiring her to pay Samuel Austin Spivey’s attorneys’ fees and related provisions. We conditionally grant the petition. BACKGROUND On March 27, 2026, the trial court rendered its order in the parties’ suit to modify the parent-child relationship. The modification order revised the possession schedule and required Johnson to pay Spivey’s attorneys’ fees. Johnson filed a notice of appeal in this Court which has been assigned cause number 10-26-00230-CV and remains pending. She also filed a motion for emergency relief in the trial court requesting the court suspend enforcement of the possession provisions pending appeal. In Spivey’s response to Johnson’s motion, he moved for temporary orders requiring Johnson to pay his appellate attorneys’ fees. After a hearing, the trial court denied Johnson’s motion and granted Spivey’s motion. The court ordered Johnson to pay attorneys’ fees of $8,839.50 and $40,200 on or before 5:00 p.m. on August 10, 2026. The court also awarded Spivey a money judgment in each amount. With this petition for writ of mandamus, Johnson filed an emergency motion for temporary relief requesting this Court enter an order staying the August 10, 2026 payment deadline, the portions of the order requiring her to pay attorneys’ fees, and the enforcement provisions in the order. On August 10, 2026, this Court granted the motion for emergency relief, issued a temporary stay order, and ordered Spivey to file a response. APPELLATE ATTORNEYS’ FEES In her petition, Johnson asserts the trial court abused its discretion by ordering her to pay Spivey’s appellate attorneys’ fees because the evidence does not show that the payment is necessary to preserve or protect the child’s safety or welfare during the appeal. She contends the record shows litigation equalization and coercive appellate fee-shifting. In re Johnson Page 2 In his response, Spivey asserted that Johnson failed to preserve her complaint for mandamus review and contends that she has an adequate remedy by appeal. Preservation Error-preservation rules generally apply to original proceedings, and arguments not presented to the trial court cannot first be considered in a mandamus proceeding. See TEX. R. APP. P. 33.1; In re Polymerica, LLC, 271 S.W.3d 442, 448 (Tex. App.—El Paso 2008, orig. proceeding). Spivey claims that Johnson failed to preserve her complaint for review because she “did not file a motion for reconsideration or any other motion in the trial court” challenging the temporary order. He cites to In re Fredenberg, No. 12-26- 00075-CV, 2026 WL 1191282, at *4 (Tex. App.—Tyler Apr. 30, 2026, orig. proceeding) (mem. op.), in which the Tyler Court of Appeals denied mandamus because the relator failed to make a predicate request challenging the temporary order in the trial court. Unlike the relator in Fredenberg, Johnson objected to the award of attorneys’ fees under Section 109.001 multiple times on the basis of insufficient evidence to support a finding that the fees were necessary to preserve and protect the child’s safety and welfare pending In re Johnson Page 3 appeal. The trial court overruled Johnson’s objections and granted a running objection on this ground. We find that Johnson preserved her complaint. Standard of Review and Applicable Law In a suit affecting the parent-child relationship, a trial court may render temporary orders “necessary to preserve and protect the safety and welfare of the child during the pendency of an appeal,” including an order that “require[s] payment of reasonable and necessary attorney’s fees, court costs, and expenses.” TEX. FAM. CODE ANN. § 109.001(a)(5). A party may seek review of the trial court’s temporary order under Section 109.001 by petition for writ of mandamus or by appeal. Id. § 109.001(b-5). We grant the extraordinary relief of mandamus only when the trial court has clearly abused its discretion, and the relator lacks an adequate appellate remedy. In re H.E.B. Grocery Co. L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam). A trial court abuses its discretion if it reaches a decision so arbitrary and unreasonable that it is a clear and prejudicial error of law or if it fails to correctly analyze or apply the law to the facts. Id. at 302- 03; Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). We defer to a trial court’s factual determinations that have evidentiary In re Johnson Page 4 support, but we review the trial court’s legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). Inadequate Remedy By Appeal When a trial court’s temporary orders under Section 109.001 require the immediate payment of attorneys’ fees, review of the award during a pending appeal does not provide an adequate remedy at law. In re Wiese, No. 03-15- 00062-CV, 2015 WL 4907030, at *1 (Tex. App.—Austin August 12, 2015, orig. proceeding) (mem. op.) (on reh’g). Spivey argues that Johnson now has an adequate remedy on appeal because this Court granted her motion temporarily staying payment of the attorneys’ fees pending disposition of her mandamus petition, and the trial court signed an order abating the payment deadline to fourteen days after this Court rules on the mandamus petition. We disagree with Spivey’s contention. The appellate-adequacy inquiry does not turn upon on whether a court has granted temporary relief to prevent the very harm that makes direct appeal inadequate; rather, it turns upon the character of the underlying order—here, an order mandating immediate fee payment—and the practical impossibility of reversing compliance after the fact. See id. at *1-3. As illustrated by Wiese, courts may order temporary relief and still reach the In re Johnson Page 5 merits of the mandamus petition as to fee awards in Section 109.001 temporary orders. See id. Mandamus is therefore appropriate to review and, if warranted, correct the fee component of the temporary order despite the existence of a temporary stay. We find that Johnson has no adequate appellate remedy. Abuse of Discretion Challenges to the legal and factual sufficiency of the evidence are relevant factors in our assessment of whether or not the trial court abused its discretion. In re Rogers, 370 S.W.3d 443, 445 (Tex. App.—Austin 2012, orig. proceeding). In reviewing the evidence in the context of an abuse-of-discretion standard, we engage in a two-pronged inquiry: “(1) whether the trial court had sufficient information on which to exercise its discretion; and, if so, (2) whether the trial court erred in its application of discretion based on that information.” Id. Johnson asserts that Spivey’s evidence shows no present threat to the child’s well-being or security from harm, loss, or the threat of harm or loss during the appeal. She contends that Spivey identified no present child need that would go unmet, and his witnesses tied the requested award to litigation expense, appeal defense, and stopping continued litigation. In short, she In re Johnson Page 6 argues that Spivey’s evidence does not prove that requiring Johnson to pay $49,039.50 by August 10, 2026 is necessary to preserve and protect the child’s safety or welfare during the appeal. Spivey testified that he borrowed money from his parents to pay his attorneys’ fees. They executed written loan documents showing that his payments begin August 1, 2027. He testified that taking out the loans was necessary and in the child’s best interest. He explained that, if he has to pay the fees, clothing for the child “is not the first area I would cut” and that “no matter what happens she will be clothed and fed.” He said it is a question of “quality of life.” He testified that he will still provide her with school supplies and medical care, and she will not become homeless. But, if he has to pay the fees, there will be a cost to himself. While he could not point to a specific need that he would not be able to meet, he expected a “standard of living decrease” if Johnson did not pay his appellate fees. When there is “less money to provide” he would spend less on entertainment and buy cheaper food and cheaper clothes. However, he would make certain the child’s needs are met. He explained that payment of appellate fees would “cut into my life, my daughter’s life, my household” because “you only have such a pool to draw from” and there would be “smaller and smaller pieces of the pie.” When asked how shifting his In re Johnson Page 7 attorney’s fees to Johnson is necessary to protect the child’s safety and welfare during the appeal, Spivey replied, “[b]ecause otherwise we’re going to be in court until the end of time.” Both of Spivey’s attorneys testified as to the fees they are charging, saying the fees are reasonable, necessary and customary in the community. His appellate attorney testified that when her $30,000 retainer runs out, if Spivey cannot replenish it, she will no longer represent him. She explained that, if he cannot pay an attorney, it affects his ability to win. The best interest of the child is not the proper standard under Section 109.001. In re Jenkins, No. 10-21-00169-CV, 2021 WL 4080260, at *2 (Tex. App.—Waco Sept. 8, 2021, orig. proceeding) (mem. op.). Spivey had the burden of showing that the requested temporary order to pay his attorneys’ fees is necessary to preserve and protect the safety and welfare of the child during the pendency of the appeal. TEX. FAM. CODE ANN. § 109.001(a); In re Jenkins, 2021 WL 4080260, at *2. Spivey testified that if he paid his own attorneys’ fees the family’s standard of living would decrease, but he would make certain the child’s needs were met. He did not explain how the child’s safety and welfare would be impacted if he had to pay the fees. When asked how ordering Johnson to pay his fees is necessary to protect the child’s safety and welfare during the In re Johnson Page 8 appeal, Spivey’s response centered on his concern that the litigation would continue indefinitely. We find that the evidence is insufficient for the trial court to find that ordering Johnson to pay Spivey’s appellate attorneys’ fees was necessary to preserve and protect the safety and welfare of the child during the pendency of the appeal. See TEX. FAM. CODE ANN. § 109.001; In re Jenkins, 2021 WL 4080260, at *3. CONCLUSION We conditionally grant Johnson’s petition for writ of mandamus and direct the trial court to vacate the portion of its August 3, 2026 order ordering Johnson to pay $8,839.50 and $40,200 in appellate attorneys’ fees on or before 5:00 p.m. on August 10, 2026 and the money judgments awarded to Spivey in the amounts of $8,839.50 and $40,200. The writ will issue only if the trial court fails to act as directed herein within twenty-one days of this opinion. We lift this Court’s August 10, 2026 order staying the underlying order for attorneys’ fees. STEVE SMITH Justice In re Johnson Page 9 OPINION DELIVERED and FILED: September 10, 2026 Before Chief Justice Johnson, Justice Smith, and Justice Harris Writ conditionally granted OT06 In re Johnson Page 10