Opinion
File No. CN17-01480 Case No. 20-18104
10-06-2020
A K , Petitioner v. A K , Respondent
Thomas D. Shellenberger, Esquire, 1601 Milltown Road, Suite 10, Wilmington, DE 19808, Attorney for Father Patricia M. Weir, Esquire, 2 Mill Road, Suite 105, Wilmington, DE, 19806, Attorney for Mother
MEMORANDUM OPINION ON REQUEST FOR ATTORNEYS FEES Thomas D. Shellenberger, Esquire, 1601 Milltown Road, Suite 10, Wilmington, DE 19808, Attorney for Father Patricia M. Weir, Esquire, 2 Mill Road, Suite 105, Wilmington, DE, 19806, Attorney for Mother ARRINGTON, Judge.
On September 2, 2020, the Court found Mother in contempt of the Custody Order issued just two weeks prior to the hearing. The Court ordered that Mother reimburse Father for the costs of filing the petition. Father's counsel requested an award of attorney's fees in having to bring and to present the petition successfully to the Court.
The Family Court is authorized to award attorney's fees pursuant to 13 Del.C. §731 which states:
The Court from time to time, after considering the legal and factual basis for the action, the results obtained, the financial resources of the parties, and such other factors as the Court deems just and equitable, may order a party to pay all or part of the cost to another party of maintaining or defending any proceedings under this chapter and for attorney's fees, including sums for legal services rendered and costs incurred prior to commencement of such proceedings. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his or her own name.
Applications for attorney's fees and costs require an affidavit from the applicant stating the time and effort expended, an itemization of services rendered, relevant hourly rates, itemization of disbursements claimed, any sums received or that will be received with respect to legal services and/or disbursements, and any other information that will enable the Court to properly weigh the relevant factors set forth in the Rules of Professional Conduct, Rule 1.5.
Fam.Ct.Civ.R. 88.
On August 19, 2020, the Court entered a Custody Order granting Father residential placement of three of the parties' four children. The custody hearing was a highly contested case resulting in a 41-page decision outlining what was expected of each parent.
On August 27, 2020, Father filed the Petition - Rule to Show Cause. The Court found by clear and convincing evidence that Mother intentionally engaged in conduct that was contrary to the expectations set forth in the underlying custody order. Of particular importance, the Court found that Mother failed to provide basic hygiene needs for the child; Mother had a call with the child for virtually the entire two hours of travel while in Father's car from Mother's home; Mother had the child video the family in Father's home; and Mother had the child video her sister and follow her out of the home. The Court noted:
In this case, the evidence is clear and convincing that Mother disagreed with the Court Order and was not going to comply with its clear requirements. Mother's intentional conduct created great tension for the 12 year old child and disrupted the family home. Under the totality of the circumstances, the Court finds that Mother is in contempt of the August 19, 2020 Order.
September 8, 2020 Rule to Show Cause Order at *12 (emphasis added).
In light of the need to coerce compliance with the Court's Custody Order, the Court will order that Mother pay Father some, but not all, of the requested attorney's fees. Father requested $3,420.00 in attorney's fees and $147.60 in filing fees and costs. Mother objects to Father's request as: (1) "the issue at hand was not novel;" (2) Father's time spent was unreasonable as Mother spent 2.3 hours less than Father on the case; and (3) Father's request included $100.00 for filing fees that were separately ordered in the decision on the Rule to Show Cause.
Father's application is for $3,567.00 and includes filing fees awarded separately to Father.
Mother's Response to Affidavit of Thomas D. Shellenberger, Esquire at ¶¶-6-8. --------
The Court notes that the preparation of this case was extensive and was required for the Court to find by clear and convincing evidence that Mother was in contempt. The issue of "novelty" is not as critical as the need to coerce compliance by Mother who had refused to comply with the clear order of the Court. Consequently, it necessarily required more work to present than to defend the issue.
Father's application complies with the requirements of Family Court Civil Rule 88 and Delaware Lawyers Rule of Professional Conduct 1.5. Father's attorney charges Father $450.00 per hour for work performed. This is a reasonable rate for an attorney with the experience of the applicant. The time spent is reasonable in light of the work performed. This case was handled on an expedited basis that made Father's counsel unavailable for other work. Father prevailed on his claims and is entitled, under these circumstances, to be made whole and to expect compliance with the underlying order.
Father's application includes 1.4 hours to review file and draft the petition, 1.8 hours for reviewing the file and related facebook photos, and another 1.2 hours again to "review file and prepare for hearing." The Court will reduce Father's request by 2.4 hours in light of duplicative work and will require that Mother reimburse Father $2,520.00 of the amount claimed.
The Court does note that the filing fee was separately ordered. Father also requests $0.25 per page for photocopies of 48 pages, $35.00 for a "Courier Fee," and $0.60 for "Postage above 1st class letter." The Court will not order that Mother reimburse Father for these items.
Mother should reimburse Father $2,520.00 by November 30, 2020. In the event that Mother is unable to pay the entire amount by November 30, 2020, the Court may deduct any unpaid amounts from Mother's portion of equity in the marital home.
An implementing Order is separately attached to this Memorandum Opinion.
IT IS SO ORDERED this 6th day of October 2020.
/s/Michael W . Arrington
MICHAEL W. ARRINGTON
Judge Date E-mailed: October 6, 2020