Opinion
File No.: CN17-04379 Petition No.: 17-27998
10-14-2019
Re: C-------- C. D----- v. J------ T. D-----
David C. Gagne, Esquire
Giordano, DelCollo, Werb & Gagne
5315 Limestone Road
Suite 210
Wilmington, DE 19808
david@gdwlawfirm.com J------ D-----
---- ----- ----- Way
B---, DE -----
--------@aim.com
LETTER DECISION AND ORDER
Dear Mr. Gagne and Mr. D-----:
This is the Court's decision on the joint requests of the parties for an award of counsel fees and costs related to the ancillary proceedings between them. Pursuant to this Court's ancillary decision dated August 1, 2019 ("August 2019 Order"), both C-------- C. D----- ("Wife"), represented by David C. Gagne, Esquire ("Mr. Gagne"), and J------ T. D----- ("Husband"), were permitted to submit their respective affidavits for counsel fees and costs within fifteen days of the date of the Order. Responsive pleadings to the respective fee applications were to be filed with the Court ten days thereafter.
On August 15, 2019, Wife, through her attorney, filed an Affidavit of Time and Expenses. The affidavit states that Wife incurred counsel fees totaling $28,770.00 and costs totaling $3,665.00, of which $3,100.00 were incurred for "outside experts to value equipment and property" sold by Husband.
On August 12, 2019, this Judge's office received an email from Marie L------ enclosing three separate billing statements from various attorneys and law firms who appeared to have represented Husband during the course of these proceedings. On August 21, 2019, Ms. C----- both emailed and spoke to Husband on the phone to inform him that the Court could not accept the emailed documents without them being properly filed with the Court and with notice to Mr. Gagne. On August 26, 2019, Husband filed a motion to "Submit Proof of Attorney Fees."
This Judge's Executive Assistant, L--- C-----, was on vacation during the time that Ms. L------'s email was initially sent, and the email was not opened until her return to the office on August 19, 2019. Ms. C----- acknowledged receipt of the email and attachments to Ms. L------ as per the email request on August 19th. She then forwarded the email to Husband on Wednesday, August 21st and indicated that the documents needed to be submitted in a properly filed Court document with notice to Mr. Gagne before being considered and accepted by the Court. During the telephone conversation with Husband on August 21st, he identified Ms. L------ as his mother.
As of the date of this Order, neither party has submitted a responsive pleading.
Legal Standard
The Court may award attorney's fees "after considering the financial resources of both parties." The purpose of 13 Del. C. §1515 is to "equalize the positions of the parties by providing a financially disadvantaged spouse with financial means to prosecute or defend an action." However, a party need not be "totally without assets or income to be awarded attorney's fees." While a trial court has broad discretion in determining whether to award attorney's fees, it must set forth the reasons for its decision.
13 Del. C. § 1515 (1995) states:
The Court from time to time after considering the financial resources of both parties may order a party to pay all or part of the cost to the other party of maintaining or defending any proceeding under this title and for attorneys' fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after the entry of judgment. The Court may order that the amount be paid directly to the attorney, who may enforce the order in his or her name.
Gray v . Gray , 503 A.2d 198, 204 (Del. 1986) (citing Husband F . v. Wife F., 432 A.2d 331 (Del. 1981)).
G .S.G. v. P.S.G., 412 A.2d 319,324 (Del. 1980).
Gray v . Gray , 503 A.2d at 204.
The Court is also guided by Delaware Family Court Civil Procedure Rule 88 ("Rule 88") and Delaware Lawyers' Rules of Professional Conduct Rule 1.5 ("DRPC 1.5"). Finally, a Court may assess attorney's fees against a party who engages in "excessively litigious" or unreasonable conduct.
Rule 88 states in pertinent part:
In every case where there is a legal or equitable basis therefor the Court may assess a party the reasonable counsel fees of any other party. Where counsel fees are requested the attorney shall submit to the Court an affidavit stating the following:
(1) time and effort expended;
(2) an itemization of services rendered;
(3) relevant hourly rates;
(4) itemization of disbursements claimed;
(5) any sums received or that will be received with respect to legal services and/or disbursements; and
(6) any information that will enable the Court to properly weigh the relevant factors set forth in the Rules of Professional Conduct, Rule 1.5.
Mays v . Mays , 552 A.2d 858 (Table)* 2 (Del. 1988).
Background
In its analysis of a fee award, the Court will consider the facts and circumstances of this case as previously determined by this Court and as set forth in the Court's August 2019 Order.
The parties were married for twelve years and two months and they have two children, both of whom reside with Wife.
Husband is -- years of age and has alleged that he is in poor health. He argued that he has medical conditions which prevent him from being fully employed and he has applied for Social Security Disability benefits. His annual income through his former profitable landscaping business earned him as much as $164,000.00 (approximately) in 2014 to as little as $41,000.00 (approximately) in 2016. Husband no longer owns and operates his landscaping business.
Husband is under a current Order to pay child support of $1,555.00 and arrears of $311.00, totaling $1,866.00 per month. As of June 6, 2018, he has support arrears totaling $17,770.00. The Court notes that Husband has a pending petition to modify child support.
Wife is -- years of age and in good health. She is employed at ---------- ---------- and earns approximately $52,000.00 per year. As set forth in this Court's August 2019 Order, Wife received all of the proceeds from the sale of the former marital home totaling $41,217.14 in satisfaction of her interest in the marital estate.
Both parties have requested the Court to consider an award of counsel fees and costs associated with this proceeding.
Analysis
The Court will perform an analysis of the parties' respective submissions pursuant to Family Court Rule of Civil Procedure 88:
(1) Time and effort expended;
Upon review of Wife's counsel's affidavit, a total of 93.91 hours were expended representing Wife in this proceeding. Wife's fees ($28,700.00) and costs ($3,665.00) total $32,365.00.
In support of Husband's affidavit, he attaches three items:
(a) a billing statement from Weik, Nitsche & Dougherty, LLC evidencing a total of 17.70 hours were expended in representing Husband, for fees totaling $7,965.00;
(b) a cashier's check in the amount of $5,000.00 payable to Collins & Associates, with a copy of an email referencing the subject "Answer to Petition to Substantiate, Custody Documents, Divorce Filing;" and
(c) the first page of a retainer agreement between Husband and Cooch and Taylor (Staci J. Pesin, Esquire) for representation in "divorce, custody, child support and PFA." Copies of two checks payable to Cooch & Taylor are included in the amounts of $5,000.00 and $275.00.
(2) Itemization of services rendered;
Wife's attorney's billing statement sets forth an itemization of services rendered, the majority of which is accepted by the Court. In the Court's review of the billing statement, there are services listed that are not related to the divorce proceeding. The Court strikes the following items from consideration in this fee application:
| Date | Services | Time | Hourly Rate | Total |
| 01/31/18 | Prepare client; review file | 0.8 | $300.00 | $240.00 |
| 02/01/18 | Prepare for and attend mediation | 2.0 | $300.00 | $600.00 |
| 02/23/18 | Complete form for publication of petition forcustody in News-Journal | 0.2 | $150.00 | $30.00 |
| Sub-Total | $870.00 |
Therefore, for purposes of this Order, the itemization of Wife's total fees and costs associated with this proceeding are established at $31,495.00.
The only documentation provided by Husband that itemizes services rendered is the billing statement from Weik, Nitsche & Dougherty, LLC. The Court accepts this statement of itemized services of $7,965.00.
(3) Relevant hourly rates;
According to Wife's affidavit, Mr. Gagne charged an hourly rate of $500.00; Achille C. Scache, Esquire charged an hourly rate of $300.00, although his rate increased during the pendency of the litigation; Brandon A. Spivey, Esquire charged an hourly rate of $300.00; and the firm's paralegal fees were billed at an hourly rate of $150.00.
Although not specified on the Weik, Nitsche & Dougherty, LLC billing statement, the Court calculates Ms. Dougherty's hourly rate to be $450.00. Ms. Pesin's retainer agreement stated that she charged an hourly rate of $275.00. The Court cannot determine what the hourly rate Husband was charged relative to the payment to Collins & Associates.
The Court divided the total fees of $7,965.00 by 17.70 hours for a rate of $450.00 per hour.
The Court deems all hourly rates as stated above to be commensurate based on the level of expertise of each attorney and today's standards.
(4) Itemization of disbursements claimed;
The billing statement for Wife's attorney itemizes disbursements totaling $3,655.00.
There are no disbursements reflected on the documentation provided by Husband.
(5) Any sums received or that will be received with respect to legal services and/or disbursements; and
Wife's affidavit does not state the amount of money that Wife has paid towards her counsel fees and costs. The affidavit merely states that Wife "makes payment on her balance" and that she has a "substantial outstanding balance due counsel's law firm."
Husband's supporting documents reflected that he has paid $5,000.00 to Collins & Associates, $5,275.00 to Cooch and Taylor, and $7,475.00 to Weik, Nitsche & Dougherty, LLC, totaling $17,750.00 towards payment of legal fees and expenses.
(6) Any information that will enable the Court to properly weigh the relevant factors set forth in the Rules of Professional Conduct , Rule 1.5.
Wife's affidavit argues that the parties had a "complex case involving significant dissipation of assets" and that it was an "ancillary matter of moderate difficulty and required some specialized skills, training and experience." In further support, Wife's affidavit states that Husband has a "substantially better financial outlook than Wife."
Neither Husband's motion nor his supporting documents provide this Court with any additional information to weigh the relevant factors set forth in Rule 1.5 of the Rules of Professional Conduct.
Id.
* * * * *
As reflected in the August 2019 Order, the parties were able to divide many of their marital assets and debts by mutual agreement. The exception was the Albanese claim to the former marital residence, the value to be attributed to Husband for the adjacent lot, and the value of the landscaping equipment to be assigned to Husband. While there were IRS and State of Delaware tax debts and liens against the home and lot, those debts were satisfied when the properties sold. Wife did not seek an award of alimony and only requested to receive the full amount of the remaining proceeds from the sale of the home and lot in satisfaction of her interest in the remaining marital estate.
Albanese v. Albanese, 676 A.2d 900 (Table) Del. Supr. (1996).
Although Wife argued an Albanese claim to the former marital home, it was difficult for this Court to perform a traditional analysis based on the documentation and subsequent explanation provided by the parties. The Court ultimately held that the home proceeds would be divided 60% in favor of Husband in recognition of him having a premarital interest in the property. The Court granted Wife's request to fully receive the sales proceeds without any additional payment from Husband.
Husband had a superior earning capacity to that of Wife when his ----------- business was thriving. Husband previously testified during the March 11, 2019 ancillary hearing that his poor health was an obstacle to him finding steady employment, although he acknowledged that he took medication to manage his illness and was waiting to see if he qualified for Social Security Disability benefits. Wife did not previously testify as to any health limitations and she has maintained stable employment with ---------- ----------.
The Court has considered the financial circumstances of both parties pursuant to 13 Del. C. §1515. Although Husband's business is defunct and he was not employed at the time of the ancillary hearing, the Court found his earning capacity to be comparable to Wife's. The Court ultimately divided the marital estate equally between the parties, with the exception of Husband's premarital home which was divided 60% in his favor. However, Wife only requested and was awarded by this Court the full sales proceeds from the sale of the properties for her interest in the marital estate. Wife did not request any additional payment from Husband, and testified that she did not want to "chase" a judgment against Husband.
In reviewing the amounts expended by the parties in their legal representation during the pendency of this matter, the Court accepted Wife's fees and costs totaling $31,495.00, although the total amount that Wife paid towards those fees was not disclosed. Husband gave a partial disclosure of fees incurred during his representation by Weik, Nitsche & Dougherty, LLC, and presented documentation evidencing he paid a total of $17,750.00 towards his legal fees and expenses. Husband did not provide any supporting documentation as to the total amount of fees and costs that may have been charged to him.
The Court finds that neither party engaged in "excessively litigious" behavior in this proceeding nor was either party unreasonable in their respective positions. The Court also finds that neither party has the financial ability to pay the other party's attorney's fees.
Mays at p. 2. --------
Conclusion
Based on the above analysis, the Court find that each party shall be responsible for payment of their respective counsel fees and court costs.
IT IS SO ORDERED.
Very truly yours,
/s/_________
MICHAEL K. NEWELL, Chief Judge MKN/lmc
Date emailed: 10/14/2019