Marriage of Wilson ( 1994 )


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  •                              No.    93-441
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    1994
    IN RE THE MARRIAGE OF
    and
    ROBERT LEO WILSON,
    Respondent and Appellant.
    APPEAL FROM:    District Court of the Fifteenth Judicial District,
    In and for the County of Roosevelt,
    The Honorable M. James Sorte, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    David L. Irving, Attorney at Law,
    Glasgow, Montana
    For Respondent:
    Carol C. Johns, Attorney at Law,
    Wolf Point, Montana
    submitted on Briefs:   May 5, 1994
    Decided: June 9, 1994
    Filed:
    Justice Terry N. Trieweiler delivered the opinion of the Court.
    Robert Leo Wilson appeals the order of the District Court for
    the Fifteenth Judicial District in Roosevelt County awarding
    attorney fees and costs to his former wife, Lana Kay Wilson.    We
    affirm the District Court.
    The parties present three issues for review:
    1.    Did the District Court abuse its discretion when it
    awarded Lana attorney fees and costs?
    2.    Did the District Court abuse its discretion when it
    allowed Lana to testify and present evidence at a hearing noticed
    for oral argument on the issue of payment of attorney fees?
    3.    Should this Court order damages to Lana based on a
    finding that the appeal was taken without substantial or reasonable
    grounds?
    The District Court issued its decree dissolving Lana and
    Robert's marriage on May 5, 1981. In 1990, Lana moved the District
    Court to increase Robert's child support obligation for their minor
    child. Robert filed a counterclaim in which he requested specified
    visitation and the tax exemption attributable to the child.    Lana
    did not file an answer to Robert's counterclaim and the District
    Court entered a default judgment against her.   The order increased
    Robert's child support obligation, awarded him visitation rights,
    and allowed him to claim his daughter as a dependent. The District
    Court denied Lana's motion to have the default entry set aside.
    She appealed to this Court and we affirmed the award of child
    support, reversed the District Court's failure to set aside the
    default, and remanded for a determination of the issues in the
    counterclaim and to recalculate the amount of child support owed.
    See InreManiageofFronk& W i h n (1991), 2 5 
    0 Mont. 291
    , 
    819 P.2d 1275
    .
    On remand from this Court, and after an evidentiary hearing on
    August 20, 1992, the District Court issued a modified decree on
    June 21, 1993, denying Robert's requests for the tax exemption and
    for unsupervised visitation.    The court awarded Lana the right to
    claim the child as her dependent and ordered Robert to pay all
    costs associated with psychological evaluations and therapy.       The
    order was silent regarding attorney fees.      The parties submitted
    briefs and scheduled a hearing for June 16, 1993, to present oral
    argument on that issue.      On July 15, 1993, the District Court
    awarded attorney fees and costs to Lana in the total amount of
    $18,512.67.
    ISSUE 1
    Did the District Court abuse its discretion when it awarded
    Lana attorney fees and costs?
    The District Court ordered Robert to pay Lana's attorney fees
    and costs pursuant to H 40-4-110, MCA, which allows the court to
    order a party to pay a reasonable amount of the other party's
    attorney fees and costs after the court considers the financial
    resources of both parties. An award of fees under this statute is
    within a district court's discretion and is subject to an abuse of
    discretion standard of review, In re Maniage of Bumk (1993), 
    258 Mont. 265
    , 272, 
    852 P.2d 616
    , 620.       We will not disturb a district
    court's findings on appeal if there is substantial evidence to
    support those findings. In re Mam'age of Zander (Mont. 1993) 
    864 P.2d 1225
    , 1229, 50 St. Rep. 1522, 1524.
    The Commission Comment to 5 40-4-110, MCA, states that the
    purpose of the section is to authorize payment of a reasonable fee
    "if the court, after considering the financial resources available
    to both parties, determines the order to be necessarv.rr (Emphasis
    added. )    Thus, many    of our recent cases assert that "the
    petitioning party must make a showing of necessity.         See, eg., In re
    Mam'uge o Laster
    f         (l982), 
    197 Mont. 470
    , 479, 
    643 P.2d 597
    , 602.
    Necessity, of course, is shown in a variety of ways.            We have
    affirmed awards of attorney fees based on a lack of sufficient
    funds to pay fees, InreMam'ugeofLoegering (1984), 
    212 Mont. 499
    , 
    689 P.2d 260
    , or a significant disparity between the partiesr salaries,
    1 2 re Mamkge of Skinner (1989), 
    240 Mont. 299
    , 
    783 P.2d 1350
    .
    1                                                                  When
    neither party is better able to pay fees than the other, it is
    proper to hold each responsible for his or her own fees.             In re
    Mam'age of Hall (1987), 
    228 Mont. 36
    , 
    740 P.2d 684
    .   "Necessity" does
    not exclusively refer to financial necessity.         We have affirmed
    awards where a substantial amount of the fees were attributable to
    one party Is lack of cooperation and misconduct.         In re Marriage of
    Syljuberget (1988), 
    234 Mont. 178
    , 
    763 P.2d 323
    .       Because of the
    diverse facts and circumstances in each case, we have determined
    that the district court's discretion, based on its discernment of
    the case as a whole, should control absent an abuse of discretion.
    ZnreMam'ageofBaer (1982), 
    199 Mont. 21
    , 
    647 P.2d 835
    .
    The District Court concluded that:
    1.   [Lana] was unable to pay the fees and costs
    incurred by her in this proceeding.
    2.   The disparity in the parties1 income and
    resources supports an award of fees and costs to [Lana].
    3.   The fees and costs incurred by [Lana] in the
    amount of $18,512.67 are reasonable considering the
    complexity and duration of the litigation.
    4.   The prolonged litigation was necessitated by
    [Robert's] counterclaims and by the nature of his past
    actions.
    5.   The necessity of the fees and         costs   is
    justified by [Lana's] success in this case.
    From our review of the record, we conclude that the District
    Court had   substantial evidence to support its findings and
    conclusion that Lana's ability to pay and the disparity in the
    parties1 incomes and resources rendered an award of attorney fees
    to Lana 'necessary. I
    '
    The preferred method to determine the reasonableness of an
    award of attorney fees is by nmeans of a hearing allowing for oral
    testimony, the introduction of exhibits, and the opportunity to
    cross-examine."   
    Laster 643 P.2d at 602
    .   Although the hearing in
    this case was noticed as one for oral argument, when the District
    Court allowed Lana to give testimony, and Robert's           counsel
    consented to proceed with the hearing, it became an evidentiary
    hearing. The only evidence about the 'lreasonablenessll attorney
    of
    fees and costs before the court was the total amount requested.
    MISS JOHNS:    The total number of attorney's fees and
    costs incurred in this case by my client is $16,007.67.
    That's at the hourly rate of $60.00 an hour, Your Honor.
    THE COURT:       $16,007.00.
    MISS JOHTJS:  Yes, and sixty-seven cents.          There was a
    total of 271 hours.
    Prior to the hearing, Lana submitted an affidavit stating that
    she owed $16,007.67 in attorney fees and costs; that she spent
    $1,505 to travel from Utah to appear at two hearings; and that she
    had been required to hire a psychologist to testify and that his
    fee was $1,000; for a total of $18,512.67--the amount awarded by
    the ~istrictCourt.
    The proper time for Robert to argue that the attorney fees
    were unreasonable was at the hearing.            Although he objected to
    Lana's testimony based on "unfair surprise,*I he chose to proceed
    even when given the opportunity to continue the hearing and present
    his own witnesses. After that point, Robert raised no objection to
    the foundational basis for Lana's attorney fee evidence.         Neither
    did he make any effort to refute, contradict, or impeach the
    evidence of the amount of attorney fees and costs requested by
    Lana,        During     cross-examination   he     merely   elicited   an
    acknowledgement from Lana that $16,007.67 was the total amount of
    attorney fees she had incurred as of May 31, 1993.
    We conclude that under these circumstances, Robert waived any
    objection to the reasonableness of the fees being claimed or the
    manner in which they were proven, and conclude that the District
    Court did not abuse its discretion by its award of attorney fees
    and costs.
    6
    ISSUE 2
    Did the District Court abuse its discretion when it allowed
    Lana to testify and present evidence at a hearing noticed for oral
    argument on the issue of payment of attorney fees?
    Robert argues that we should apply the rule in Bink v FirstBank
    .
    West, GreatFalls, inc. (1991), 
    246 Mont. 414
    , 
    804 P.2d 384
    , where we held
    that it is error for a district court to make an award without an
    evidentiary hearing and without the appropriate motion and notice
    required by Rule 5(a), M.R.Civ.P.          
    Bink, 804 P.2d at 385
    .   As
    previously noted, the hearing became an evidentiary hearing when
    Robert gave his consent to proceed.        The District Court mitigated
    any possible prejudice to Robert from lack of notice by offering to
    continue the matter.
    We, therefore, find that the District Court did not abuse its
    discretion when it allowed Lana to take the witness stand and
    testify about her notice of job termination and future job
    prospects.
    ISSUE 3
    Should this Court order damages to Lana based on a finding
    that the appeal was taken without substantial or reasonable
    grounds?
    Lana requests that we award fees and costs incurred by her on
    appeal pursuant to Rule 32, M.R.App.P.         Requesting damages under
    this rule is not a matter of course:        "[Wle will find a frivolous
    appeal in only the most limited circumstances.I* In re Marriage of Bier v.
    Slzerrard   (L981), 
    191 Mont. 215
    , 223, 6 2 3 P,2d 550, 554.    In this
    case, \fe are not satisfied from the presentation of the appeal that
    it was taken without        substantial    or   reasonable   grounds,   and
    therefore, deny Lana's request for damages.
    We affirm the judgment of the District Court.
    Pursuant to Section I, Paragraph 3 ( c ) , Montana Supreme Court
    1988 Internal Operating Rules, this decision shall not be cited as
    precedent and shall be published by its filing as a public document
    with the Clerk of the Supreme Court and by a report of its result
    to Montana Law Week, State Reporter and West Publishing Company.
    We concur:
    June 9, 1994
    CERTIFICATE OF SERVICE
    I hereby c r i y that the following certified order was sent by United States mail, prepaid, to the
    etf
    following named:
    DAVID L. IRVING
    Attorney at Law
    110 5th Street South, Suite 110
    Drawer B
    Glasgow, MT 59230
    CAROL JOHNS
    Attorney at Law
    P.O. Box 995
    Wolf Point, MT 59201
    ED SMITH
    CLERK OF THE SUPREME COURT
    STATE OF MONTANA