Following last week’s Minnesota Supreme Court decision in Citizens State Bank Norwood Young America v. Brown, this week’s Round-Up includes a published case from the Court of Appeals on attorney’s fee motions, as well as three unpublished child custody decisions (two of which I’ll be covering).
Motions for Attorney’s Fees Survive the Death of a Party
In re the Marriage of Sanvik v. Sanvik, — N.W.2d –, A13-1875 (Minn. Ct. App. 2014) This week’s feature case, answers the question whether a pending motion for attorney’s fees survives the death of the moving party.
Wife hired Attorney to represent her in connection with Wife’s divorce from Husband. (I find leaving names out normally makes things easier, but I recognize the awkward construction of that sentence). During the pendency of the divorce, Attorney brought a motion on Wife’s behalf seeking an award of attorney’s fees and costs under Minn. Stat. § 518.14. The lower Court reserved Wife’s request for later determination, and Attorney withdrew (presumably for non-payment of fees). Attorney then sought a lien against any property awarded to Wife in the divorce, which was granted.
Sadly, Wife died several months later and the divorce was dismissed. Attorney filed a motion seeking to have Husband pay Wife’s outstanding fees owed to Attorney. The Court denied Attorney’s request and awarded Husband conduct-based fees against Attorney incurred in defending Attorney’s motion. The lower court found that Attorney had no “persona right to receive contribution toward [wife’s] unpaid attorney’s fees directly from husband, based on [the statute].” And, even if Attorney could have pursued the claim on Wife’s behalf, Attorney’s was barred from pursuing her claim because she had already obtained an attorney’s lien.
On appeal, the Court of Appeals reversed the lower court, finding that the plain language of Minn. Stat § 518.14 permitted Attorney to bring her motion. The statute reads, in relevant part:
If the [divorce] proceeding is dismissed or abandoned prior to a determination and award of attorney’s fees, the court may nevertheless award attorney’s fees upon the attorney’s motion.
Citing Minnesota Supreme Court case law interpreting the above provision (which was added to the law in 1955), the Court held that:
The [statute] reflects a legislative judgment that an attorney should be afforded an effective means to collect fees from an opposing spouse upon dismissal of a divorce action. We hold that when a party’s motion for attorney fees under Minn. Stat. § 518.14, subd. 1 is pending upon dismissal of a divorce action, that party’s right to seek contribution for attorney fees from the opposing party for fees generated up to the time of dismissal continues and may be asserted by the party’s attorney.
The Court of Appeals also reversed the lower Court’s finding that Attorney’s request was barred by res judicata, holding that Attorney’s lien against any property Wife might be awarded did not prevent Attorney from seeking contribution from Husband. Husband’s arguments based on an election of remedies argument was similarly unsuccessful.
Making it a perfect sweep, the Court even reversed the award of conduct-based fees to Husband, noting that statutory attorney fee awards may only be made against a party, and, because Attorney was not a party, the lower Court could not order her to contribute to Husband’s fees.
In Other News
Two unpublished cases on custody: one a custody modification, the other an establishment.
In re the Marriage of Hudson v. Hudson, A14-0004 (Minn. Ct. App. July 14, 2014). A decision affirming the lower Court’s custody modification awarding Father sole physical custody and sole legal custody relative to medical decision-making where the child suffered from a medical condition that had become acute since the divorce. The Court of Appeals upheld the lower Court ruling over Mother’s objections that Father failed to demonstrate either a change in circumstances or endangerment, holding that the worsening of a pre-existing medical condition while the child was in Mother’s care may constitute changed circumstances that endangered the child. In affirming the lower Court, the Court of Appeals was careful to note that “endangerment” may be found even in the absence of behavior by a parent that would qualify as criminal endangerment or medical neglect.
In an interesting aside at the end of the decision, the Court of Appeals added another interesting twist to the already extensive (and conflicted) unpublished case law on Parenting Consultants. In the final pages of its decision, the Appellate Court rejected Mother’s arguments that Father’s request to change custody needed to first be submitted to the parties’ parenting consultant consistent with the language of their divorce decree. While acknowledging that, “the parties…agree[d] to use a Parenting Consultant to assist them with post-decree issues they cannot resolve regarding their child,” the Court of Appeals reasoned that the parties’ failure to actually select a Parenting Consultant after their divorce could render the agreement “an unenforceable agreement to later agree.” (All the more so, where Mother was the parent who refused to cooperate in selecting a Parenting Consultant). But, even accepting that the agreement was binding, the Court of Appeals held that the district court was permitted to ignore the provision where the stipulation was more than three years old, the parties had never selected a Parenting Consultant, and the “precarious nature of [the child’s] medical situation demanded immediate resolution.” C.f. Grodnick v. Velick, A12-0382 (Minn. Ct. App. October 15, 2012) (reversing a lower Court decision on an out-of-state move issue where the parties agreed to first submit any child-related disputes to their Parenting Consultant).
In re the Matter of Kish v. Wirth, A14-0448 (Minn. Ct. App. July 14, 2014). A fairly standard affirmance of a lower Court order awarding the parties’ joint legal custody and granting Father a progressively expanding parenting time schedule (with built-in step ups on the child’s second, and fourth birthdays and the start of kindergarten). C.f. Wilson v. Wilson, A09-1386 (Minn. Ct. App. June 15, 2010) (reversing prospective parenting time expansions where the automatic increases were speculative in the absence of particularized findings). While the Court of Appeals acknowledged that the lower Court’s findings could have been more “particularized,” it found sufficient, implicit support in the record to support the award.
That’s it for this week. Still to come this month: a New Jersey case on employment discrimination and divorce, and my thoughts on the lawyer awards arms race.