Family Code § 109.001 Limits Appellate Fees | In re Johnson (2026)

In re Mackinsey Lynn Johnson, 10-26-00321-CV, September 10, 2026.

On appeal from 85th Judicial District Court of Brazos County, Texas

Synopsis

Texas Family Code § 109.001(a)(5) does not authorize interim appellate fee awards in SAPCR appeals merely because one side wants litigation equalization, continued representation, or pressure to end the appeal. The movant must put on evidence that immediate payment of appellate fees is necessary to preserve and protect the child’s safety and welfare during the appeal, and absent that showing, mandamus will lie to vacate the fee order.

Relevance to Family Law

This decision matters directly to modification, custody, conservatorship, possession, and other SAPCR-related appeals where a prevailing party seeks temporary appellate attorney’s fees after judgment. The opinion sharply limits the routine use of Family Code § 109.001 as a fee-shifting tool during appeal and makes clear that the statute is child-protection-driven, not a mechanism for equalizing war chests, preserving trial-level wins, or coercing settlement posture. In practical terms, family-law litigators handling post-judgment divorce cases involving children, custody modifications, enforcement-related appeals, or appeals from final orders in parent-child litigation should treat interim appellate fee requests as requiring a focused evidentiary record tied to actual child safety and welfare consequences—not generalized financial strain or concern that the other side will keep litigating.

Case Summary

Fact Summary

The underlying case was a suit to modify the parent-child relationship. After the trial court signed a modification order adjusting possession and awarding trial-level fees, Johnson appealed. During the pendency of that appeal, Johnson also sought emergency relief in the trial court to suspend enforcement of the possession provisions. In response, Spivey sought temporary appellate orders under Family Code § 109.001 requiring Johnson to fund his appellate fees.

Following hearing, the trial court denied Johnson’s requested relief and granted Spivey’s fee request. The court ordered Johnson to pay two fee amounts—$8,839.50 and $40,200—by a near-immediate deadline and reduced both sums to money judgments. Johnson sought mandamus relief in the Tenth Court of Appeals, arguing there was no evidence that forcing immediate payment of Spivey’s appellate fees was necessary to preserve and protect the child’s safety and welfare during appeal.

The evidence was important. Spivey testified that he had borrowed money from his parents to pay counsel and that repayment on those loans did not begin until August 1, 2027. He described paying his own fees as affecting the family’s “quality of life” and standard of living, but he also conceded the child would remain clothed, fed, medically cared for, housed, and supplied for school. He could not identify a specific child need that would go unmet absent immediate fee-shifting. When pressed on why payment by Johnson was necessary to protect the child during appeal, his answer focused on stopping perpetual litigation. His appellate counsel likewise testified that if her retainer was not replenished, she would withdraw, and that inability to pay counsel affects a litigant’s ability to win.

Issues Decided

• Whether Johnson preserved error for mandamus review by objecting at the hearing, without filing a post-order motion for reconsideration.
• Whether a temporary order requiring payment of appellate attorney’s fees under Texas Family Code § 109.001(a)(5) is reviewable by mandamus despite the possibility of later appellate review.
• Whether evidence of financial strain, reduced standard of living, need for continued appellate representation, or litigation equalization satisfies § 109.001’s requirement that the temporary order be necessary to preserve and protect the child’s safety and welfare during appeal.
• Whether the trial court abused its discretion by ordering immediate payment of appellate fees and entering related money judgments absent evidence meeting that statutory necessity standard.

Rules Applied

The court centered its analysis on Texas Family Code § 109.001(a)(5), which allows temporary orders pending appeal in a SAPCR, including fee awards, only when those orders are “necessary to preserve and protect the safety and welfare of the child during the pendency of an appeal.” It also relied on § 109.001(b-5), which permits review of such temporary orders by mandamus or appeal.

On preservation, the court applied the general principle that error-preservation rules govern mandamus proceedings, citing Texas Rule of Appellate Procedure 33.1 and authority holding that complaints not first presented to the trial court ordinarily cannot be raised for the first time in mandamus. But the court distinguished cases where the relator made no predicate request or objection in the trial court.

On the standard for mandamus, the court applied the familiar abuse-of-discretion framework from In re H.E.B. Grocery Co., L.P., Walker v. Packer, and In re Labatt Food Serv., L.P. A trial court abuses its discretion by misapplying the law or acting without sufficient evidentiary support. Legal determinations are reviewed de novo; factual determinations receive deference only if supported by evidence.

On adequacy of appellate remedy, the court relied on In re Wiese for the proposition that orders compelling immediate payment of attorney’s fees under § 109.001 are not adequately reviewable by ordinary appeal because the harm lies in compelled interim payment, which cannot practically be undone after compliance.

Most importantly, the court reaffirmed—citing In re Jenkins—that the statutory standard is not mere “best interest of the child.” The movant must prove necessity to preserve and protect the child’s safety and welfare during the appeal itself.

Application

The court’s reasoning was disciplined and statutory. It first rejected Spivey’s preservation argument. Unlike parties who remain silent and later seek extraordinary relief, Johnson repeatedly objected at the hearing that § 109.001 required evidence showing the requested fees were necessary to preserve and protect the child’s safety and welfare pending appeal. The trial court overruled those objections and even granted a running objection. That was enough.

The court then addressed adequacy of remedy. Spivey attempted to defeat mandamus by pointing out that the appellate court had temporarily stayed the payment deadline and that the trial court had later abated the due date pending the mandamus ruling. The court rejected that argument because adequacy turns on the nature of the underlying order, not on whether a stay temporarily prevents the harm. An order commanding immediate fee payment remains the type of order for which later appeal is inadequate.

On the merits, the court read § 109.001 narrowly and textually. The statute permits temporary fee orders during appeal only when necessary to preserve and protect the child’s safety and welfare. Spivey’s proof did not meet that burden. His testimony established, at most, that paying his own lawyers might diminish the household’s discretionary spending, lower the family’s standard of living, and burden him personally. But he expressly testified that the child would still be clothed, fed, housed, medically cared for, and supplied for school. That testimony undercut the statutory necessity element rather than supporting it.

The court was similarly unpersuaded by counsel’s testimony that failure to replenish an appellate retainer would impair Spivey’s ability to continue litigating or prevail on appeal. That may speak to litigation strategy and parity, but it does not establish that immediate fee-shifting is necessary to protect the child’s safety and welfare during the appeal. The court also treated Spivey’s statement that otherwise “we’re going to be in court until the end of time” as exposing the real purpose of the order: coercive fee-shifting aimed at ending or discouraging continued litigation. Section 109.001 does not authorize that use.

Holding

The court held that Johnson preserved her complaint for mandamus review by repeatedly objecting in the trial court that the evidence was legally insufficient under Family Code § 109.001. A motion for reconsideration was not required where the statutory objection was clearly presented and ruled on at the hearing.

The court further held that mandamus was an appropriate vehicle to challenge the interim appellate fee order. A temporary stay did not convert the fee order into one adequately reviewable by ordinary appeal because the core problem was the compelled immediate payment of fees during a pending appeal.

On the merits, the court held that Family Code § 109.001(a)(5) requires evidence that a temporary appellate fee award is necessary to preserve and protect the child’s safety and welfare during the appeal. Evidence that payment would reduce a parent’s standard of living, impose financial strain, support continued representation, or equalize litigation resources does not satisfy that requirement without proof of an actual child-welfare necessity.

Finally, the court held that the trial court abused its discretion by ordering Johnson to pay $8,839.50 and $40,200 in appellate fees and by entering corresponding money judgments absent sufficient evidence of statutory necessity. The Tenth Court conditionally granted mandamus and directed the trial court to vacate those portions of the temporary order.

Practical Application

For family-law litigators, In re Johnson should change how you plead, prove, oppose, and preserve requests for interim appellate fees under § 109.001. The key lesson is that appellate fees in a SAPCR are not presumptively available just because one party prevailed below, lacks liquidity, borrowed funds, or risks losing counsel on appeal. If the requested order is to survive mandamus, the record must connect immediate fee payment to identifiable risks to the child’s safety or welfare during the appellate period.

This has obvious implications in modification and custody litigation. If a parent seeks interim fees because ongoing appellate costs allegedly threaten the child’s housing stability, medical care, therapy continuity, supervision, transportation to school, or protection from a concrete safety risk, the movant must develop those facts carefully and specifically. General testimony about “quality of life,” “smaller pieces of the pie,” or the burden of litigation will likely be inadequate after Johnson.

The case also has strategic implications in divorce litigation involving child-related orders. Even when the larger case includes property or support disputes, § 109.001 remains limited to temporary orders necessary to protect the child during appeal. Practitioners should be cautious about using the statute as a backdoor mechanism to fund appellate briefing, preserve leverage from the final order, or pressure the appellant into abandoning review.

For respondents opposing fee requests, Johnson offers a roadmap: force the movant to articulate the specific child need that will go unmet without immediate fee-shifting; establish through cross-examination that essentials remain covered; separate “best interest” rhetoric from the statute’s narrower safety-and-welfare necessity requirement; and make a clear record that the request is really about litigation financing or coercion. For movants, the case is a warning that fee testimony from counsel on reasonableness and necessity of services, while still required, is not enough. The missing element in most failed requests will be child-focused necessity evidence.

Checklists

Opposing a Section 109.001 Appellate Fee Request

• Object expressly that § 109.001 requires evidence the requested fee order is necessary to preserve and protect the child’s safety and welfare during appeal.
• Distinguish the statutory standard from a generic best-interest standard.
• Force the movant to identify the specific child need, safety concern, or welfare risk that will arise absent immediate fee payment.
• Establish whether the child will still have housing, food, clothing, medical care, school supplies, therapy, transportation, and supervision if the movant pays his or her own fees.
• Highlight any loan arrangements, delayed repayment terms, insurance coverage, family assistance, or other resources undermining immediacy.
• Separate attorney testimony on reasonableness of fees from proof of child-related necessity for fee-shifting.
• Develop evidence that the real purpose of the request is litigation equalization, continued representation, leverage, or deterrence of appeal.
• Request a running objection if the court continues to receive cumulative testimony on the same defective theory.
• If the order is signed, evaluate mandamus immediately, especially where the payment deadline is imminent.

Building a Record for a Valid Appellate Fee Request

• Plead for temporary appellate fees under § 109.001 with child-specific allegations, not generalized inability to pay.
• Tie the request to concrete, near-term risks to the child during appeal.
• Present testimony showing what child-related expenses or protections cannot be maintained if appellate fees are self-funded.
• Use documentary evidence where possible, including budgets, invoices, care plans, medical or therapeutic schedules, and proof of available versus unavailable funds.
• Show why the need is immediate and exists during the pendency of appeal.
• Prove the amount requested is reasonable and necessary, but do not stop there.
• Avoid framing the request as fairness, parity, punishment, or a way to stop continued litigation.
• Ask the court to make findings that track the statutory language concerning necessity to preserve and protect the child’s safety and welfare.

Preservation for Mandamus Review

• Make the statutory objection on the record at the hearing.
• Repeat the objection when necessary as different witnesses present the same legally insufficient theory.
• Obtain an express ruling or a running objection.
• Ensure the reporter’s record captures the exact objection and the trial court’s ruling.
• Do not rely on a later motion for reconsideration as the sole preservation vehicle.
• If challenging sufficiency, make clear whether the complaint is legal insufficiency, factual insufficiency, or both in the abuse-of-discretion context.
• When the court orders immediate payment, seek emergency appellate relief promptly to preserve the status quo while pursuing mandamus.

Drafting Temporary Orders to Reduce Mandamus Risk

• Track the precise language of § 109.001(a)(5).
• Avoid imposing immediate payment deadlines unless the evidentiary record supports urgency tied to child welfare.
• Refrain from reducing interim appellate fee awards to coercive money judgments without clear statutory support and evidentiary necessity.
• Make findings that identify the child-specific safety or welfare concern being protected.
• Do not justify the order solely on a litigant’s need to defend the appeal or retain counsel.
• Do not rely on “best interest” verbiage standing alone.
• Consider whether narrower relief could address the child-related concern without overreaching.

Citation

In re Mackinsey Lynn Johnson, No. 10-26-00321-CV, 2026 WL ___ (Tex. App.—Waco Sept. 10, 2026, orig. proceeding) (mem. op.).

Full Opinion

Read the full opinion here

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