Opinion
No. 3-689 / 03-0079
Filed October 15, 2003
Appeal from the Iowa District Court forScott County, James R. Havercamp, Judge.
Petitioner appeals the district court's modification order requiring the parties to pay their own attorney fees. AFFIRMED AS MODIFIEDAND REMANDED.
Arthur Buzzell, Davenport, for appellant.
Michael McCarthy of McCarthy, Lammers Hines, Davenport, for appellee.
Considered by Vogel, P.J., and Mahan and Zimmer, JJ.
Mary Conradappeals the portion of the district court's modification order requiring the parties to pay their own attorney fees and contribute one-half to the guardian ad litem fees assessed as costs. We affirm the order but modify as to the attorney fees and costs and remand to the district court.
Background Facts. Mary and Michael Conrad's marriage was dissolved by decree in June 1993. Mary was granted sole custody of the parties' minor children while Michael was granted reasonable visitation and ordered to pay child support of $172 per week.
On December 24, 2001, Michael petitioned the court for modification of custody. Mary subsequently filed an answer and a cross-claim requesting an increase in child support. The district court denied Michael's request for modification of custody but granted Mary's request for additional child support, increasing the amount to $219.16 per week. The district court ordered each party to pay their own attorney fees and split the guardian ad litem costs equally. Mary appeals solely on the issue of attorney fees and costs. Discussion. Mary contends that the district court abused its discretion in not awarding her attorney fees and assessing her one-half of the guardian ad litem fees. To support her claim, Mary states Michael has the financial ability to bear the attorney fees and pay the costs, where she does not, and she was the prevailing party at trial.
Michael did not file a responsive brief.
The district court found Mary's gross annual income was $20,000 and Michael's was $53,000. Michael is remarried and now lives in Galesburg, Illinois. He and his new wife have one child together, and he has adopted his wife's child from a previous relationship. Mary retains custody of the parties' two children and has not remarried.
The district court has considerable discretion in awarding attorney fees. In re Marriage of Okonkwo, 525 N.W.2d 870, 874 (Iowa Ct.App. 1994). The decision to award attorney fees rests within the sound discretion of the court, and we will not disturb its decision absent a finding of abuse of discretion. In re Marriage of Maher, 596 N.W.2d 561, 568 (Iowa 1999). The court should make an attorney fee award which is fair and reasonable in light of the parties' financial positions. In re Marriage of Grady-Woods, 577 N.W.2d 851, 854 (Iowa Ct.App. 1998).
The district court denied Mary's request for attorney fees and costs, raised again in her post-trial motion. In its ruling, the court reasoned that attorney fees were not warranted because 1) Michael's petition for modification was justiciable and 2) the litigation was a result of both parties' inability to work together on custodial and visitation issues.
Iowa Code section 598.36 (2001) provides "[i]n a proceeding for the modification of an order or decree under this chapter the court may award attorney fees to the prevailing party in an amount deemed reasonable by the court." Whether attorney fees should be awarded depends on the respective abilities of the parties to pay. In re Marriage of Bolick, 539 N.W.2d 357, 361 (Iowa 1995); In re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993); In re Marriage of Phipps, 379 N.W.2d 26, 30 (Iowa Ct.App. 1985). In addition, the fees must be fair and reasonable. In re Marriage of Willcoxson, 250 N.W.2d 425, 427 (Iowa 1977).
In denying Mary's request for attorney fees and costs, the district court did not address the disparity of income and only mentioned in passing that Mary was the prevailing party at trial. Michael earns three times the annual income of Mary and because of the change of financial circumstances since the decree was entered, Mary prevailed on her claim to increase child support. She also successfully defended against Michael's petition for modification of custody. While we are slow to interfere with a district court's discretionary call, we do so when the factors established by statutory and case law are not satisfied. Seymour v. Hunter, 603 N.W.2d 625, 627 (Iowa 1999).
We therefore conclude the district court abused its discretion in failing to consider the appropriate factors. On review of the financial information presented by the parties, we conclude equity would be better served if Michael were to bear a greater portion of the guardian ad litem fees and pay a portion of Mary's trial attorney fees. We affirm the district court order but modify and remand to the district court for entry of judgment for Michael to pay two-thirds ($2,975) of the guardian ad litem fees and $3,000 of Mary's attorney fees. Costs on appeal shall be assessed against Michael.