A York County father will not be on the hook for $5,000 in attorneys’ fees after the South Carolina Court of Appeals overturned the circuit court’s award on June 4. Attorneys for the father called the decision a significant precedent for divorce cases.
“This case I think is probably going to end up being a well-cited case in the future because this case essentially says that attorneys seeking awards of attorneys’ fees are going to have to clearly establish the need for attorneys’ fees and the beneficial result. I think it stands for the proposition that attorneys are going to have to do a little better job proving their attorneys’ fees,” said Thomas McDow, one of the father’s attorneys.
Wendell and Desiree Brown divorced in 2009. The divorced decree awarded custody of their two minor children to Desiree and provided that Wendell would pay child support. For a time, Wendell fell behind on his payments, but got up to date prior to a final hearing, at which time his monthly child support payment was significantly reduced.
The family court also ordered Wendell to pay an additional $5,000 of Desiree’s attorneys’ fees. While the family court acknowledged that Wendell was more successful in the action, it said the dispute “was a relatively simple case which was drawn out of proportion by Father.” Wendell appealed the award of attorneys’ fees, and the Court of Appeals overturned, finding that the lower court had committed an error by making the award.
The appeals court said that when deciding whether to award attorneys’ fees, the family court should consider the four factors laid out in E.D.M. v. T.A.M., a 1992 ruling by the state Supreme Court: a party’s ability to pay his or her own attorneys’ fee, the beneficial results obtained by the attorney, the parties’ respective financial conditions, and the effect of the attorneys’ fees on each party’s standard of living.
The appeals court said that those factors couldn’t support awarding Desiree attorneys’ fees. Three of the factors were basically neutral since the Browns were similarly situated in their financial conditions, ability to pay their attorneys’ fees, and the fees’ impact on their standards of living. The fourth factor actually weighed in favor of Wendell since the family court found he was more successful in the litigation. The primary issue in family court was the amount of his child support obligation, and he attained a beneficial result on that issue by successfully petitioning for a reduction of it.
Desiree argued that attorneys’ fees were properly awarded because of Wendell’s failure to cooperate in the litigation. The appeals court noted that that a party’s lack of cooperation is a sufficient basis to assess attorneys’ fees, but found no evidence that Wendell’s failure to timely pay child support prolonged the proceedings. McDow said that his client’s efforts were not unusual in any way, and that he had not engaged in the sort of obstinate behavior that had been the basis for attorneys’ fees in previous cases.
McDow and Erin Urquhart of the Law Office of Thomas F. McDow in Rock Hill represented Wendell Brown. David Shea of the Law Offices of Shea and Barron in Columbia represented Desiree Brown. Shea did not respond to a call seeking comment.
A second appeal related to a separate award of attorneys’ fees remains outstanding.
The six-page decision is Brown v. Brown (Lawyers Weekly No. 011-066-14). The full text of the opinion is available online at sclawyersweekly.com.
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