Contingent Appellate Fees Require Opinion Evidence of Reasonableness | DeJean (2026)

In the Matter of the Marriage of Michelle DeJean and Robert Dean DeJean, Jr., 05-25-01007-CV, August 11, 2026.

On appeal from 330th Judicial District Court, Dallas County, Texas

Synopsis

A divorce decree cannot award contingent appellate attorney’s fees based solely on testimony that a party would charge a stated amount if an appeal is unsuccessful. Under Rohrmoos and Yowell, the proponent must offer opinion testimony that the projected appellate fees are reasonable and necessary, tied to the Arthur Andersen factors; without that, the evidence is legally insufficient and the proper disposition is reversal and rendition of a take-nothing judgment on those contingent fees.

Relevance to Family Law

This decision matters directly to Texas family-law trial and appellate practice because contingent appellate fees are routinely requested in divorce decrees, SAPCRs, modification orders, and enforcement proceedings. DeJean is a reminder that family-law cases do not get a relaxed evidentiary standard on fee proof: if you want conditional fees for an appeal, petition for review, or merits briefing in the Supreme Court, you must build a record showing why the projected amount is reasonable and necessary, not merely what counsel intends to charge.

Case Summary

Fact Summary

The case arose from a Dallas County divorce after a long marriage. The trial court dissolved the marriage, found cruelty and family violence, and made a property division that included a disproportionate allocation favoring Wife. The court also found that Husband had engaged in waste and delay-based conduct during the litigation, including repeated attorney changes, continuance practice, revocation of a Rule 11 arrangement, and pursuit of reimbursement theories the trial court found unsupported.

At trial, Wife presented evidence of her incurred trial-level fees and costs through counsel. Counsel testified that Wife had incurred substantial fees in the trial court and also gave contingent appellate figures—$20,000 for an unsuccessful appeal to the court of appeals and $20,000 for an unsuccessful appeal to the Texas Supreme Court. The findings of fact tracked those amounts and labeled them reasonable and necessary.

On appeal, Husband challenged several aspects of the decree, including the contingent appellate fee award. The Fifth Court of Appeals affirmed the decree in most respects, but it reversed the contingent appellate fee award and rendered a take-nothing judgment because the fee evidence established only conditional lump-sum amounts and did not include opinion testimony explaining why those amounts were reasonable and necessary under governing Supreme Court precedent.

Issues Decided

The court decided the following issues:

• Whether the trial court abused its discretion in characterizing a portion of Wife’s pension as separate property and awarding the community portion entirely to Wife.
• Whether the trial court abused its discretion in finding Husband committed waste and in making a disproportionate property division based in part on that finding.
• Whether the evidence was legally sufficient to support an award of contingent appellate attorney’s fees.
• Whether the trial court erred in requiring Wife’s trial attorney’s fees to be paid from Husband’s share of the homestead sale proceeds.

For present purposes, the significant holding concerns the third issue: whether testimony stating only the amounts that would be charged in the event of an unsuccessful appeal can support contingent appellate fees.

Rules Applied

The court’s contingent-fee analysis follows the now-familiar Texas Supreme Court framework for attorney’s-fee proof:

• Rohrmoos Venture v. UTSW DVA Healthcare, LLP, 578 S.W.3d 469 (Tex. 2019), requires evidence sufficient to allow the factfinder to determine that requested fees are reasonable and necessary. Conclusory testimony is not enough.
• Yowell v. Granite Operating Co., 620 S.W.3d 335 (Tex. 2020), applies that principle specifically to conditional appellate fees and holds that a fee claimant must provide opinion testimony about the services reasonably expected to be necessary on appeal and the anticipated reasonable fees for those services.
• The Arthur Andersen factors remain the touchstone for reasonableness analysis, including the time and labor required, novelty and difficulty of the questions, skill required, customary fee, amount involved and results obtained, time limitations, nature and length of the professional relationship, experience and reputation of counsel, and whether the fee is fixed or contingent.

In the family-law context, trial courts retain broad discretion over property division and fee shifting, but that discretion does not displace the legal sufficiency requirements governing proof of attorney’s fees. A family-law decree awarding appellate fees must still rest on evidence satisfying Rohrmoos and Yowell.

Application

The Fifth Court treated the contingent appellate fee issue as an evidentiary sufficiency problem, not as a mere matter of trial-court discretion. The record showed that Wife’s counsel testified to specific conditional amounts that would be sought if Husband pursued an unsuccessful appeal. But the testimony, as described by the court, stopped there. It did not explain the work anticipated at the court of appeals, the likely tasks involved in a petition for review or merits-stage Supreme Court proceedings, the expected hours, the rate, the complexity of the issues likely to be raised, or any other basis from which the trial court could evaluate reasonableness and necessity under Arthur Andersen.

That omission was dispositive. Under Yowell, contingent appellate fees cannot be awarded on an “if appeal, then $X” presentation alone. The appellate court emphasized that future appellate work is necessarily predictive, but Texas law still requires opinion evidence connecting the projection to a reasonableness analysis. In other words, a party need not prove future fees with mathematical certainty, but must present more than a conditional price tag.

The court therefore concluded that the trial court’s findings that $20,000 would be reasonable and necessary for an unsuccessful appeal to the court of appeals, and another $20,000 for an unsuccessful Supreme Court appeal, lacked legally sufficient evidentiary support. Because the failure was one of proof, the proper remedy was not remand for a new evidentiary opportunity, but reversal and rendition of a take-nothing judgment on the contingent appellate fees.

Holding

On the contingent appellate fee issue, the court held that Wife failed to present legally sufficient evidence to support the award. Testimony stating only that certain lump-sum amounts would be charged in the event of an unsuccessful appeal did not satisfy the requirement for opinion testimony showing those future fees were reasonable and necessary under the governing standards. The award of contingent appellate fees was therefore reversed, and judgment was rendered that Wife take nothing on those fees.

On the remaining issues, the court otherwise affirmed the final decree. That included the trial court’s property-division rulings and the treatment of trial-level attorney’s fees within the overall division. So while DeJean is useful on fee-proof standards, it is equally notable for showing that an otherwise sustainable family-law judgment can lose only the contingent appellate fee component if the evidentiary record on that discrete issue is deficient.

Practical Application

For family-law litigators, DeJean should change how you prove up appellate fees at final trial. It is no longer enough—if it ever was—to ask counsel, “What would your fee be if the other side appeals?” and stop after the witness gives a number. That record invites reversal.

In divorce cases, this most often arises when counsel wants the decree to include conditional fees for: an appeal to the court of appeals, responding to a petition for review, merits briefing in the Supreme Court, or proceedings on remand. DeJean indicates that each tier should be supported by testimony describing the expected scope of work and why the projected amount is reasonable and necessary. A succinct but disciplined fee record is enough; a conclusory one is not.

The case also has strategic value for appellate preservation. If your opponent offers only bare conditional numbers, the objection should focus on legal sufficiency and conclusory testimony under Rohrmoos and Yowell. And if the decree nevertheless includes conditional fees, DeJean provides a clean appellate issue with a strong remedy: rendition of take-nothing relief, not just remand.

Practitioners should also recognize the broader lesson. Family-law trial courts often blend fee awards into equitable property divisions, sanctions-like waste theories, or reimbursement-style adjustments. But when the decree separately awards contingent appellate fees, the evidentiary foundation for that award remains distinct. The equitable context of family law does not excuse noncompliance with the Supreme Court’s fee-proof cases.

Checklists

Building a Sustainable Record for Contingent Appellate Fees

• Elicit opinion testimony that the projected appellate fees are reasonable and necessary.
• Tie that testimony to the Arthur Andersen factors.
• Identify the expected appellate tasks, such as:
• reviewing the clerk’s and reporter’s records
• analyzing appellate issues
• preparing the appellee’s brief
• preparing and arguing oral argument, if granted
• responding to a petition for review
• preparing merits briefing in the Supreme Court
• Have counsel explain the anticipated hours and the hourly rate, or another reliable method used to project the fee.
• Separate projected fees by appellate stage rather than offering a single global figure.
• Make clear that each conditional award is triggered only if the relevant appellate event occurs and the appellant is unsuccessful.

Direct-Examination Checklist for Fee Proponents

• Ask counsel to state qualifications and experience in appellate and family-law matters.
• Ask what appellate work is reasonably expected in this specific case.
• Ask why the issues in the case make the projected work reasonable to expect.
• Ask for the estimated hours for each stage of appeal.
• Ask for the reasonable hourly rate and its basis.
• Ask how the projected fee aligns with customary charges for similar work in the relevant market.
• Ask expressly whether the projected fees are reasonable and necessary.
• Ask counsel to connect the opinion to the Arthur Andersen factors.

Objection Checklist for Fee Opponents

• Object that testimony stating only a lump-sum conditional amount is conclusory.
• Cite Rohrmoos for the requirement that fee testimony must permit evaluation of reasonableness and necessity.
• Cite Yowell for the requirement of opinion testimony supporting conditional appellate fees.
• Object if the witness does not explain the anticipated services to be performed on appeal.
• Object if no hours, rates, or other analytical basis are provided.
• Object if the testimony does not address the Arthur Andersen factors.
• Request findings or challenge findings that merely recite fee amounts without evidentiary support.

Drafting Checklist for Decrees and Judgments

• State conditional appellate fees by discrete stage.
• Use triggering language tied to an unsuccessful appeal or unsuccessful further review, as appropriate.
• Ensure the decree tracks the evidence actually admitted.
• Avoid inserting appellate fee amounts in the decree that exceed or materially differ from the testimony.
• Confirm that any conditional fee language is consistent with current Supreme Court authority.
• Preserve the severability of the appellate fee award so that a defect there does not destabilize the remainder of the decree.

Appellate Issue-Spotting Checklist

• Compare the testimony to the findings of fact on appellate fees.
• Determine whether the witness gave only bottom-line numbers.
• Look for any testimony about expected services, hours, rates, or complexity.
• Assess whether the record mentions the Arthur Andersen factors in any meaningful way.
• Frame the challenge as a legal-sufficiency attack on the fee evidence.
• Request rendition of a take-nothing judgment on contingent appellate fees if the record is conclusory.

Citation

In the Matter of the Marriage of Michelle DeJean and Robert Dean DeJean, Jr., No. 05-25-01007-CV, 2026 WL ___ (Tex. App.—Dallas Aug. 11, 2026, no pet.) (mem. op.).

Full Opinion

Read the full opinion here

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