Tedder v. Gardner Aldrich LLP, ____S.W.3rd____, 2013 WL 2150081 (Tex. 2013) (hereinafter Tedder) was decided by the Texas Supreme Court on May 17, 2013. The issue is whether legal services provided to one spouse (in this case W) in a divorce proceeding are necessaries for which the other spouse (in this case H) is statutorily liable to liable to pay W’s attorney. The Supreme Court in an opinion written by Justice Nathan L. Hecht held “no“. The Court ruled that “…a spouse’s necessaries are things like food, clothing, and habitation—that is sustenance.” The Court held that a spouse’s legal fees in a divorce proceeding are not necessaries. See Texas Family Code Sec. 2.501 “Duty to Support (a) Each spouse has the duty to support the other spouse. (b) A spouse who fails to discharge the duty of support is liable to any person who provides necessaries to the spouse to whom support is owed.”
Footnote 2 of the opinion, which is dicta, indicates that an attorney can no longer intervene for attorney’s fees. It states: “The intervention (by the law firm against W and H for attorney’s fees) was improper. A person may intervene in an action if (1) he could have brought the action himself, or it could have been brought against him; (2) ‘the intervention will not complicate the case by an excessive multiplication of the issues’; and (3) ‘intervention is almost essential to effectively protect the intervenor’s interests.’ Guar. Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652,657 (Tex. 1990). Gardner Aldrich certainly did not meet the first requirement. It probably did not meet the second, since the interjection of its claim added issues to the divorce proceeding and delayed its final resolution. And it did not meet the third, inasmuch as it could have sued Michael (H) and Stacy (W) in a separate action. But Rule 60 of the Texas Rules of Civil Procedure provides that ‘[a]ny party may intervene by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party’, and neither Michael nor Stacy moved to strike the intervention.”
Gardner Aldrich filed a motion for rehearing on July 2, 2013. On July 5, 2013, an Amicus Curiae brief was filed by State Bar of Texas Family Law Council, Texas Academy of Family Law Specialists, Texas Chapter of the American Academy of Matrimonial Lawyers, and the Texas Family Law Foundation. The Amicus brief asks the Court to grant Respondent Gardner Aldrich, LLP’s motion rehearing and grant the following relief: 1. provide a definition of the term “necessaries” and give factors that can be applied by the trier of fact on a case by case basis, reversing its conclusion that attorney’s fees incurred in a divorce are not necessaries; 2. omit the footnote 2 comment about intervention; and alternatively and without waiving the foregoing, if the Court chooses to affirm its prior decision, make its decision abrogating the necessaries doctrine for divorce cases apply only to cases filed on or after September 1, 2013, and have no effect on any cases filed before that date.
After the Tedder ruling on May 17, 2013, and as a result thereof, the following language was added to the Texas Family Code, effective 9/1/2013: “(c) In a suit for dissolution of a marriage, the court may award reasonable attorney’s fees and expenses. The court may order the fees and expenses and any postjudgment interest to be paid directly to the attorney, who may enforce the order in the attorney’s own name by any means available for the enforcement of a judgment for debt.” Texas Family Code Sec. 6.708(c). However, this addition to the TFC does not resolve all the consequences of Tedder, especially the intervention issue.
We owe a giant thank you to those that wrote the Amicus brief and to the State Bar of Texas Family Law Council, TAFLS, TAAML, and Texas Family Law Foundation. I am so proud to be a member of these remarkable organizations. The brief, opinion and much more can be accessed via the Texas Supreme Court website, by inserting the appellate case number 11-0767. This matter deserves careful study.