It seems fair that if one parent files a custody or child support modification against the other parent and ultimately fails, then the failing party should pay the attorney fees. After all, they picked the fight and lost. Therefore, they should have to pay, right? To deal with this parties (advised by their attorneys) usually include contractual fee-shifting provisions in their divorce settlement agreements, and in paternity decrees.
Well, maybe these contractual agreements are not binding on the trial court. In the Capellari divorce appeal, the Court of Appeals upheld the trial court's refusal to award fees, despite a fee-shifting provision it had previously approved and made part of its orders.
The fee-shifting provision stated:
In the event that any action is filed with regard to this Agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all sums that either party may be called upon to pay, a reasonable sum for the successful parties [sic] attorney fees at the discretion of the court.
Despite this, in Capellari, the unsuccessful moving parent was not ordered to pay the prevailing parent's attorney fees. Why not? How would a rule that fees be paid by the losing party not be a good policy?
The Court of Appeals explained that it is concerned about justice being accessible by all, not just the ones who can afford to lose. The entire reasoning of the COA is worth reading:
We write further today, however, to express concern with fee-shifting provisions in agreements related to child support and parenting time in light of our state’s public policy. Our statutes provide that a trial court may, in its discretion, order the payment of attorney fees in litigation concerning the enforcement or modification of parenting time orders. Ind. Code § 31-17-4-3; also I.C. § 31-15-10-1 (pertaining to attorney fees in initial dissolution proceedings). Such statutory provisions have as their purpose ensuring that “a party, who otherwise could not afford an attorney in connection with dissolution proceedings, have access to an attorney’s services by providing that the other party is responsible for paying the attorney fees.” Beeson v. Christian, 594 N.E.2d 441, 443 (Ind. 1992). Unlike the statutory scheme, fee-shifting provisions in contracts generally serve not to ensure access to the courts, but rather to ensure that the prevailing party in a contract dispute is made whole. Walton v. Claybridge Homeowners Ass’n, Inc., 825 N.E.2d 818, 825-26 (Ind. Ct. App. 2005). The purpose of fee-shifting provisions in the typical contract matter may contrast unfavorably with the public policy of this state with respect to the rights of children to a relationship with both parents, and to child support. The Indiana Supreme Court has long held that “the right of parents to visit their children is a precious privilege that should be enjoyed by noncustodial parents.” Perkinson v. Perkinson, 989 N.E.2d 758, 762 (Ind. 2013). Children are not “to be treated as nothing more than a bargaining chip.” Id. at 765. Accordingly, the Perkinson Court held that “an agreement to contract away a child’s right to receive parenting time … must also be held as void as a matter of public policy.” Id. The Indiana Supreme Court has also held that child support is duty owed by a parent to a child. Schwartz, 994 N.E.2d at 1107. Thus, child support is not subject to the same negotiation and agreement as other civil matters. Id. The fee-shifting provision at issue here, construed as Mother suggests, would serve to penalize any unsuccessful effort at the modification of parenting time or child support. This outcome creates a significant disincentive for parents to seek additional parenting time with their children, and seems at odds with this state’s public policy concerning the primacy of the best interest of the child with respect both to parenting time and child support. See id. at 1107. Here, however, the trial court was within the law and its discretion in interpreting its own order and reaching its conclusion denying Mother’s request for attorney fees.
What does this mean for fee-shifting provisions? Are they null and void? Not necessarily. It is not hard to imagine a different result if the dispute was not over child-related issues. If the fees were incurred over a property issues from a divorce agreement the same policies would not be involved. However, it seems safe to conclude that where custody and support are involved the trial court is not contractually bound to order fees be paid to the prevailing party. Rather, despite a fee-shifting provisions, the trial court retains its discretion.
To discuss this further please contact me.