14 A.3d 619 (Del.Fam.Ct. 2010), CS07-03151, K.B.S. v. F.R.S.

Docket Nº:CS07-03151.
Citation:14 A.3d 619
Opinion Judge:HENRIKSEN, J.
Party Name:In re the Matter of K.B.S., Petitioner, v. F.R.S., Respondent.
Attorney:Ashley M. Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for K.B.S. Seth L. Thompson, Esquire, Hudson Jones, Jaywork & Fisher, L.L.C., Georgetown, DE, Attorney for F.R.S.
Case Date:September 21, 2010
Court:Family Court of Delaware
 
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Page 619

14 A.3d 619 (Del.Fam.Ct. 2010)

In re the Matter of K.B.S., Petitioner,

v.

F.R.S., Respondent.

No. CS07-03151.

Petition Nos. 07-38576, 08-11156.

Family Court of Delaware, Sussex County.

September 21, 2010

Submitted: Sept. 21, 2010.

Page 620

Ashley M. Oland, Esquire, Law Office of Edward C. Gill, P.A., Georgetown, DE, Attorney for K.B.S.

Seth L. Thompson, Esquire, Hudson Jones, Jaywork & Fisher, L.L.C., Georgetown, DE, Attorney for F.R.S.

OPINION1

HENRIKSEN, J.

This Opinion will address, I hope, the remaining matters outstanding on requests for attorney's fees between these parties on the causes of action that have come before and been decided by me.

Rule to Show Cause for Non-Payment of Interim Alimony and Child Support. (Case No. 08-11156)

On April 04, 2008, Ms. Oland filed on behalf of Ms. K.B.S. (" Wife" ) a Petition for Rule to Show Cause. The basis of the petition was that Mr. F.R.S. (" Husband" ) had for several months failed to pay Wife interim alimony in the amount of $3,500 per month as set forth in an Order of February 15, 2008. Also, on that same date, Ms. Oland filed on behalf of Wife a Rule to Show Cause Petition for Husband's failure to pay child support pursuant to an Order dated February 13, 2008. This all occurred around a time when Husband had abandoned his family, and Husband had provided intentionally inflated income figures as part of his simultaneous efforts to obtain a bank loan to save his failing business.

Through various delays, the matter finally was heard on December 19, 2008. The result of that Order was the Court's commitment of Husband to the Department of Corrections pending a payment to Wife of $15,000. At that hearing, the Court concluded that Husband " abandoned his family and his financial responsibilities to them." Furthermore, the Court noted " Husband's wife has had to suffer through financial hardship because of Husband, and even Wife's father has endured the sting of financial hardship due to Husband's abandonment of his responsibilities." The Court also noted that it would consider a request for payment of Wife's attorney's fees, and asked Wife's attorney to submit an affidavit.

In a subsequent Order of this Court dated February 06, 2009, in which the Court reduced the amount of money Husband needed to pay to Wife to obtain his release from incarceration, the Court's Order noted that Wife's attorney had supplied the Court with an affidavit in support of fees. The Court's Order went on to say that Wife's request for attorney's fees would be deferred until the end of the ancillary proceedings between the parties.

The Court has reviewed Ms. Oland's affidavit which shows between the time of April 02, 2008, and the eventual hearing date of December 08, 2008, Ms. Oland spent 9.35 hours of preparation at a billable rate of $175 per hour, together with $85 in filing fees, for a total amount billed of $1,721.25. The Court finds that this is an appropriate amount of time spent on this very difficult issue, all caused by Husband's fraud upon and abandonment of his family, and that Ms. Oland's hourly rate for these services is more than reasonable

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given the Court's familiarity with Ms. Oland's experience and ability in these matters.

The Court notes that this amount of $1,721.25, with Husband's agreement, was included in and made part of the final Property Division Order dated January 28, 2010.

Second Rule to Show Cause— Non-Payment of Alimony and Failure to Pursue Custody Evaluation (Case Nos. 09-42109/10-04028)

The Court has already issued an Order dated June 07, 2010, requiring Husband to pay Wife's counsel $1,882.50 within 30 days of the signing of that Order. Furthermore, the Court ordered Husband to pay Wife the sum of $313.28 for lost wages to attend the hearing and miss a day's work, with that amount being required to be paid to Wife within 30 days of the signing of the Order of June 07, 2010.

Property Division and Remaining Ancillary Matters (Case No. 07-38576)

In the Court's final Property Division Order dated January 28, 2010, the Court permitted each of the parties 15 days from the mailing date of the Order of January 29, 2010, to file requests for attorney's fees, including a memorandum and the necessary affidavit in support thereof. The Order also permitted each party thereafter to have 15 days in which to respond to any application made by the other party for attorney's fees.

Although Husband's counsel correctly notes Ms. Oland did not file a proper affidavit for attorney's fees, the Court will accept the document filed and signed by Ms. Oland in support of her client's request for fees. According to Ms. Oland's filing, Wife is seeking attorney's fees for a period of time from December 05, 2007, until January 29, 2010. Wife is seeking reimbursement for her attorney's fees billed at $175 per hour for 70.30 hours together with $332 in filing fees, for a total reimbursement of $12,634.50. Wife's counsel did not submit any memorandum in support of why the Court should require Husband to pay all or part of Wife's property division and alimony related attorney's fees. Furthermore, the document of Wife's counsel seeking attorney's fees lacks sufficient detail to describe what was done for the various time entries. Where the ancillary matters were only part of several pending matters between the parties, and where there also appears to be several duplications of time requests from another fee application already granted following a December 30, 2008 hearing, the Court must deny Wife's request for reimbursement for any of her fees and costs.

Husband, through counsel's affidavit, along with an accompanying memorandum, has also filed a request for attorney's fees following the ancillary hearing.

The general rule regarding payment of attorney's fees is that " apart from statute or contract, a litigant must pay his counsel's fee." 2 Pursuant to 13 Delaware Code, Section 1515, the Court may also consider the financial resources of both parties when considering to order a party to pay all or part of the cost of the other party maintaining or defending any proceedings under Title 13.

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