Opinion
21-P-691
07-11-2022
D.R. v. K.S.
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (formerly known as rule 1:28, as amended by 73 Mass.App.Ct. 1001 [2009]), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
D.R., the former husband in this divorce case, appeals from a Probate and Family Court judge's award of attorney's fees to K.S., the former wife. We affirm.
Procedural background.
K.S. commenced an action for divorce in the Probate and Family Court on October 4, 2011. A judgment of divorce nisi entered on March 1, 2013, which was made absolute on May 31, 2013. The judgment incorporated, but did not merge, a separation agreement by the parties. In 2016, K.S. filed a modification complaint, to which D.R. responded with a counterclaim. In 2018, D.R.'s counterclaim was dismissed and K.S.'s requested modifications were substantially allowed. A panel of this court affirmed. Shottes v. Regan, 96 Mass.App.Ct. 1118 (2020) .
On May 17, 2019, while his appeal from the modification judgment was pending, D.S. filed a complaint for contempt against K.S. This was dismissed by stipulation of the parties on June 3, 2019. On July 2, 2019, however, D.R. filed another contempt complaint, apparently raising substantially the same issues as had been raised in his May 17, 2019, contempt complaint. K.S. answered the complaint and moved for an award of attorney's fees and costs. A second Probate and Family Court judge held a hearing on the contempt complaint on August 7, 2019, and on the same day issued a judgment dismissing the complaint with prejudice and awarding K.S. $2,500 in attorney's fees.
D.R. timely appealed from this judgment, and a panel of this court reversed, finding that the contempt complaint should have been dismissed without prejudice, and that the fee award needed to be redetermined because it was unclear from the record on what basis it had been calculated. See Regan v. Shottes, 98 Mass.App.Ct. 1112 (2020). On remand, a third Probate and Family Court judge dismissed D.R.'s contempt complaint without prejudice and redetermined the award of attorney's fees, reducing it to $2,461.55. D.R. has now appealed solely from the redetermined fee award, not from the dismissal of his contempt complaint.
Discussion.
1. The award of attorney's fees.
"We will not disturb an order awarding attorney's fees except upon a showing of an abuse of . . . discretion." Brooks v. Brooks, 65 Mass.App.Ct. 129, 132 (2005). A judge's decision constitutes an abuse of discretion "where we conclude the judge made a clear error of judgment in weighing the factors relevant to the decision, such that the decision falls outside the range of reasonable alternatives" (quotation and citation omitted). L.L. v. Commonwealth, 470 Mass. 169, 185 n.27 (2014).
"In determining the propriety of an award of attorney's fees in a domestic relations setting, we have identified as among the relevant factors to be considered, 'the ability of the wife's counsel, the work performed, the results secured, the time spent, the hourly rates, the existence of contemporaneous time records, the financial positions of the parties, and the husband's obstructionist conduct which prolonged the proceedings.'" Cooper v. Cooper, 62 Mass.App.Ct. 130, 141 (2004), quoting Downey v. Downey, 55 Mass.App.Ct. 812, 819 (2002). Our case law indicates that "[fee] awards in domestic relations litigation are to be governed by caution and restraint," Pemberton v. Pemberton, 9 Mass.App.Ct. 9, 16 (1980), because "[i]t is difficult to conceive of anything more likely to undermine public respect for the administration of justice than a [widespread] suspicion that the courts are aligned in aiding the distribution among counsel of excessive proportions of the funds of those who are unfortunate enough to become involved in controversy [quotation omitted]." Hayden v. Hayden, 326 Mass. 587, 596-597 (1950). In the same vein, "[t]he determination of counsel fees should not deteriorate into ancillary major litigation." Robbins v. Robbins, 19 Mass.App.Ct. 538, 544 (1985), citing Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) .
Here, a judge of the Probate and Family Court initially awarded K.S.'s counsel $2,500 in attorney's fees. A panel of this court vacated that award and remanded it for redetermination because "the judge made no findings on how she determined the award," and so it was not clear from the record what factors she had considered. Regan, 98 Mass.App.Ct. 1112, slip op. at 2. On remand, K.S. requested confirmation of the original $2,500 fee award, plus an additional $1,575 in fees for time spent litigating the redetermination of the award. K.S. relied substantially on the affidavit submitted by her counsel to support the original $2,500 award.
In that affidavit, K.S.'s counsel averred that his hourly rate was $350, and that he had spent 7.7 hours litigating the contempt complaint, for a fee of $2,706.55. The affidavit also included a request for $11.25 for "Parking Fees, Photocopies and Postage." Counsel anticipated that the August 7, 2019 hearing on the contempt complaint would take four hours, and therefore anticipated a fee of $1,400 for the appearance. The fees requested by counsel totaled $4,106.55.
The Probate and Family Court judge who made the redetermination of the fee award closely considered counsel's fee affidavit, the case's history, and the factors relevant to making a fee award. The judge deducted .6 hours for work on motions to continue, and .3 hours for a court appearance where no judge was available to hear the matter; she also found that the August 7, 2019 hearing on the contempt complaint lasted only twelve minutes, or .2 hours, rather than the four hours anticipated by K.S.'s counsel. Accordingly, the judge ordered an award of attorney's fees totaling $2,461.55. This award was reasonable, and certainly "not incommensurate with an objective evaluation of the services performed" by K.S.'s counsel. Krock v. Krock, 46 Mass.App.Ct. 528, 533 (1999), quoting Ross v. Ross, 385 Mass. 30, 38-39 (1982) -
D.R. relies on a statement in Krock that a Probate and Family Court judge has discretion to "award reasonable attorney's fees and costs to one who successfully defends a frivolous contempt action," 46 Mass.App.Ct. at 533, and argues that it was therefore improper for the judge in this case to award attorney's fees to K.S. because she did not "successfully defend" against his contempt complaint. We need not decide whether K.S. successfully defended against the contempt complaint, however, because in the domestic relations context, "the court may, in its discretion, award costs and expenses, or either, to either party." G. L. c. 208, § 38. D.R.'s argument that an award of attorney's fees to K.S. was improper because his contempt complaint was not frivolous fails for the same reason. See Wasson v. Wasson, 81 Mass.App.Ct. 574, 582 (2012) ("[a] judge has discretion to award fees even in the absence of bad faith or frivolous claims or defenses").
2. Appellate attorney's fees.
K.S. seeks an award of her appellate attorney's fees and double costs on the ground that D.R.'s appeal is frivolous. See G. L. c. 211A, § 15. "An appeal is frivolous '[w]hen the law is well settled, when there can be no reasonable expectation of a reversal.'" Avery v. Steele, 414 Mass. 450, 455 (1993), quoting Allen v. Batchelder, 17 Mass.App.Ct. 453, 458 (1984). "The determination whether an appeal is frivolous [and whether attorney's fees and double costs should be awarded under G. L. c. 211A, § 15] is left to the sound discretion of the appellate court." Avery, supra.
Here, the original $2,500 fee award was remanded because it was unclear how it had been calculated, not because it was unreasonable or excessive. The Probate and Family Court judge on remand held a hearing on the fee award, and issued a thoughtful memorandum of decision and order in which she reduced the fee award to $2,461.55. In these circumstances, D.R. could not reasonably have expected that the fee award would be vacated. See Avery, 414 Mass. at 455. Furthermore, the difference between the initial fee award and the award after remand is $38.45, but D.R. has prosecuted this appeal for nearly a year and caused K.S. to expend significant time and resources in litigating the issue. In these circumstances it appears that D.R.'s appeal was taken "to cause unnecessary delay or needlessly increase . . . the cost of litigation," and that the sanction of awarding attorney's fees and double costs is therefore proper. Hahn v. Planning Bd. of Stoughton, 403 Mass. 332, 337 (1988), quoting Fed.R.Civ.P. 11 (1987).
K.S.'s request for an award of appellate attorney's fees and double costs is allowed. She should file an application for fees and costs on appeal, with appropriate supporting materials, within fourteen days of the issuance of this decision, in accordance with the procedure set out in Fabre v. Walton, 441 Mass. 9, 10-11 (2004). D.R. shall file any opposition or response within fourteen days thereafter. See Mass. R. A. P. 25, as appearing in 481 Mass. 1654 (2019).
Conclusion.
The judgment dated May 12, 2021, awarding K.S. $2,461.55 in attorney's fees is affirmed.
So ordered.
Green, C.J., Wolohojian & Henry, JJ.
The panelists are listed in order of seniority.