Last week the Dallas Court of Appeals issued its opinion in Shilling v. Gough, holding that the trial court erred by awarding attorney’s fees without a proper legal basis. Michelle May O’Neil and I represented Shilling in his successful appeal. 

In the underlying post-divorce proceedings, Shilling brought a suit to enforce an injunction contained in the parties’ divorce decree that prohibited his ex-wife, Gough, from disclosing his private information to third parties.  Gough filed an answer requesting attorney’s fees that failed to specify the statutory authority under which she sought recovery.   

The Dallas Court of Appeals reversed the trial court’s erroneous award of fees to Gough and rendered judgment in favor of Shilling.  The opinion reiterates the well-settled rule that — absent a statute or contract — Texas courts do not have the inherent authority to require the losing party to pay the prevailing party’s fees.  While Gough argued that she was entitled to fees under Chapter 9 of the Texas Family Code (which allows a party to enforce a property division contained in a divorce decree) and as sanctions, the Dallas Court of Appeals found (1) Chapter 9 is inapplicable because this was not an action to enforce a property division, and (2) an award of sanctions against Shilling under the circumstances of this case would  be improper and would violate his constitutional right to due process. With no appropriate contractual or statutory basis, the trial court’s judgment was improper. 

This opinion is important to vast area of post-divorce enforcement actions that we encounter as Texas divorce attorneys.  The Dallas Court of Appeals has clarified the power of a trial court to award attorney’s fees under Chapter 9 of the Texas Family Code and the requisite procedure for an award of attorneys fees as sanctions.

Read the Opinion by clicking here.

 

 

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Photo of Michelle O'Neil Michelle O'Neil

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes…

Michelle May O’Neil has 27 years’ experience representing small business owners, professionals, and individuals in litigation related to family law matters such as divorce, child custody, and complex property division. Described by one lawyer as “a lethal combination of sweet-and-salty”, Ms. O’Neil exudes genuine compassion for her client’s difficulties, yet she can be relentless when in pursuit of a client’s goals. One judge said of Ms. O’Neil, “She cannot be out-gunned, out-briefed, or out-lawyered!”

Family Law Specialist

Ms. O’Neil became a board-certified family law specialist by the Texas Board of Legal Specialization in 1997 and has maintained her certification since that time. While representing clients in litigation before the trial court is an important part of her practice, Ms. O’Neil also handles appellate matters in the trial court, courts of appeals and Texas Supreme Court. Lawyers frequently consult with Ms. O’Neil on their litigation cases about specialized legal issues requiring particularized attention both at the trial court and appellate levels. This gives her a unique perspective and depth of perception that benefits both her litigation and appellate clients.

Top Lawyers in Texas and America

Ms. O’Neil has been named to the list of Texas SuperLawyers for many years, 2011-2018, a peer-voted honor given to only about 5% of the lawyers in the state of Texas. In 2014-2018, Ms. O’Neil received the special honor of being named by Texas SuperLawyers as one of the Top 50 Women Lawyers in Texas, Top 100 Lawyers in Texas, and Top 100 Lawyers in DFW. She was named one of the Best Lawyers in America for 2016 and received an “A-V” peer review rating by Martindale-Hubbell Legal Directories for the highest quality legal ability and ethical standards.

Author and Speaker

A noted author, Ms. O’Neil released her second book Basics of Texas Divorce Law in November 2010, with a second edition released in 2013, and a third edition expected in 2015.  Her first book, All About Texas Law and Kids, was published in September 2009 by Texas Lawyer Press. In 2012, Ms. O’Neil co-authored the booklets What You Need To Know About Common Law Marriage In Texas and Social Study Evaluations.  The State Bar of Texas and other providers of continuing education for attorneys frequently enlist Ms. O’Neil to provide instruction to attorneys on topics of her expertise in the family law arena.