WHAT FACTORS DOES THE COURT CONSIDER WHEN DETERMINING IF IT WILL AWARD ATTORNEY’S FEES IN A DIVORCE PROCEEDING?

Sometimes the black letter law passed by the legislature is unclear. The legislature can’t anticipate every possible fact scenario when they pass a law, so it lay to the courts to interpret the law and give guidance to what it means. This interpretation is called case law. When the court decides a certain meeting to the law it essentially answers a legal question. Lawyers and other courts then can rely on that ruling when they have a similar issue in their case. The following case answers the question above.

Dunn v. Dunn, 595 P.2d 349 (Kan. Ct. App. 1979)

This case explored the issue of:

What factors does the court consider when determining if it will award attorney’s fees in a divorce proceeding?

The issue in this case is what factors a court considers when determining if it will award attorney’s fees in a divorce proceeding? In a divorce proceeding, the court will consider the financial means of each spouse, the behavior of each spouse, and the overall circumstances of the situation when determining if it will award attorney’s fees.

In this case, a couple was divorced, with the husband receiving almost all of the property and giving an eight-year-old car, household furniture, and $100 monthly alimony for a period of two years to the wife. The wife commutes to Wichita five days a week for work, and the record does not show any other assets from which she could pay an award of attorney fees. In the present issue, the wife brought an action seeking a change in custody over the parties’ minor children. The trial court awarded attorney fees to the husband in the amount of $4,500. The wife appealed the decision arguing the trial court abused its discretion in the award.

In a divorce proceeding, the court will consider the financial means of each spouse, the behavior of each spouse, and the overall circumstances of the situation when determining if it will award attorney’s fees. In Kansas, costs and attorney’s fees may be awarded to either party as justice and equity may require, and attorney fees are allowable in proceedings for the modification of child custody orders. The Supreme Court of Kansas has held the statute, K.S.A. 60-1610, must be implemented in alimony cases by considering the needs of one party and the ability of the other party to pay. In this case, based on the record, it appeared that the trial judge awarded the attorney fees at least in part to discourage any further motions for change of custody by the mother. It also appeared evident that the trial court did not consider the relative financial ability of the parties to pay attorney fees. The court of appeals held that if there is a strong likelihood the trial judge awarded attorney fees at least in part to discourage future motions for change of custody, the trial judge abused his discretion in awarding attorney fees.

The Court of Appeals of Kansas reversed the decision of the trial court, finding that the trial judge abused his discretion in awarding attorney fees to the husband. The decision of the trial court is rarely reversed when appealed, unless abuse of discretion is evident. In this case, the Court of Appeals held that the trial court abused its discretion because it considered inappropriate factors when determining whether to award attorney fees. The court held that discouraging future proceedings is not an appropriate factor to consider when determining whether to award attorney fees.