Bowser v. Blom
| Decision Date | 25 September 2002 |
| Citation | 569 Pa. 609,807 A.2d 830 |
| Parties | Lisa M. BOWSER, Appellant v. Johannes V. BLOM, Appellee. |
| Court | Pennsylvania Supreme Court |
Joanne Ross Wilder, Pittsburgh, for appellant, Lisa M. Bowser.
Karen Hassinger, Washington, for appellee, Johannes V. Blom.
Before FLAHERTY, C.J., and ZAPPALA, CAPPY, CASTILLE, NIGRO, NEWMAN and SAYLOR, JJ.
This Court granted allowance of appeal in this domestic relations/support matter limited to a question of first impression: the proper interpretation of the counsel fee provision governing support proceedings under the Domestic Relations Code, i.e., 23 Pa.C.S. § 4351. For the reasons that follow, we hold that the trial court did not abuse its discretion in declining to assess counsel fees against appellee in this case pursuant to § 4351(a) and, accordingly, we affirm. In so holding, we take the opportunity to address the appropriate factors for a trial court to consider when ruling on a request for counsel fees under this statute.
On September 19, 1997, the parties' daughter, E.A.B., was born. The parties were not then, and have never been, married to each other. Appellee, a physician serving as a Major in the U.S. Army, provided for the child's support from before her birth until the January 4, 2000 filing of the instant support complaint.
On July 17, 1998, appellant filed a complaint to establish both paternity and support for the child. Appellant filed the complaint specifically to obtain military recognition of the child as appellee's daughter, thereby entitling the child to medical insurance and other affiliated military benefits. Two weeks after the 1998 filing, on August 3, 1998, appellee acknowledged paternity and entered into a verbal agreement with appellant for support. Because the parties had reached an agreement, neither appeared for the hearing scheduled on the complaint, and the trial court dismissed the action on September 29, 1998.
More than a year later, on December 29, 1999, appellee himself filed a petition for special relief to institute a new support case on the grounds that appellant had breached the parties' verbal agreement for support by attempting to secure additional funds directly from the U.S. Army. Specifically, appellant had attempted, through the Judge Advocate General's Office, to have appellee's Basic Allowance for Quarters (BAQ)1 paid directly to her, in addition to the child support paid by appellee directly. Appellant then filed the support complaint that is the subject of this appeal on January 4, 2000, seeking an order of child support as well as counsel fees.
The judicial hearing officer assigned to the complaint held an expedited conference on January 27, 2000, because appellee had been ordered by the Army to resolve the support issue by February 1, 2000. At the hearing, Appellee presented evidence through cancelled checks and credit card bills, which proved that the amount he contributed to the support of appellant and his child often exceeded the $800 per month the parties had initially agreed upon. In addition to the cash support paid, appellee permitted appellant to use an automobile titled in his name and for which appellee made car payments in the amount of $592 per month. Appellee argued that this car payment should be included as an additional part of his child support obligation. The hearing officer rejected that assertion.
On February 13, 2000, the hearing officer fixed appellee's child support obligation at $800 per month—i.e., the very amount set forth in the parties' prior verbal agreement, the minimum amount appellee in fact had paid to appellant each month from the time of the child's birth through January of 2000, and the approximate amount of appellee's BAQ. The hearing officer declined appellant's request for an award of counsel fees, stating:
Counsel for the plaintiff also requested an award of attorney's fees arguing that because the defendant would not agree to have his military allotment for BAQ paid over to the plaintiff, the filing of a complaint for support became necessary. Your Hearing Officer does not find that there was any behavior in [sic] behalf of the defendant which would require an award of counsel fees for the other party. Although your Hearing Officer may disagree with the defendant's position with respect to the car payment, it is an issue that nonetheless had arguable merit and he should not be faulted or penalized for contesting on a good faith basis the support action. As stated, the defendant had previously paid support directly to the plaintiff. Moreover, the support case was filed as recently as January 4, 2000, and a hearing was conducted swiftly and an appropriate Support Order will be entered in a short period of time. There was no undue delay caused by the defendant, which furthermore makes an award of counsel fees inappropriate under the circumstances of this case.
Report of Hearing Officer, 5.
Both parties filed exceptions to the hearing officer's decision, which the trial court dismissed, finding that "[t]he record reflects that the thorough report and recommendation of [the hearing officer] was correct." The trial court entered a final order on April 13, 2000, awarding appellant $800 per month in child support. Although appellant raised the issue of counsel fees in her exceptions to the hearing officer's decision, the trial court did not specifically address that issue in its opinion.
Appellant appealed to the Superior Court, which affirmed in a panel opinion authored by then-Judge, now-Justice J. Michael Eakin. Bowser v. Blom, 766 A.2d 1259 (Pa.Super.2001). On the question of the denial of counsel fees, Judge Eakin began by noting that there was no existing case law interpreting 23 Pa.C.S. § 4351(a), which authorizes a court to award fees incurred in paternity or support matters to the prevailing obligee as follows: "If an obligee prevails in a proceeding to establish paternity or to obtain a support order, the court may assess against the obligor filing fees, reasonable attorney fees and necessary travel and other reasonable costs and expenses incurred by the obligee and the obligee's witnesses."2 Assessing the plain language of the statute, Judge Eakin reasoned that the statute did not mandate an award in every case where an order of support resulted. Indeed, in a case such as this where there was no denial of paternity or support, it would be difficult to say that the obligee "prevailed" in the proceedings. Similarly, it is unclear whether an obligee could be said to have prevailed in situations where the parties compromise or settle the matter, or in situations where the parties agree that support is due, but that there is some dispute as to the amount of support owing. Finally, Judge Eakin noted that the mere fact that an order of support results says nothing about the respective reasonableness of the litigation postures of the parties:
[T]he posture of an obligee may be just as unwarranted [as the posture of an obligor], and this statute cannot force the potential obligor to accept an unreasonable demand on pain of being assessed the obligee's counsel fees; agreement would be discouraged if the mere entry of an order triggered such an assessment. To award fees under subsection (a) just because an order results would penalize a parent whose cooperation and ongoing support of a child were antithetical to the need for significant legal expense in the first place.
In the Superior Court's view, a counsel fee award under § 4351(a) would be appropriate where there was "conduct by the obligor that the court finds to unreasonably impede the determination of paternity or the timely flow of appropriate support to the child." Id. Elaborating on this approach, Judge Eakin articulated the standard as follows:
Counsel fees necessitated by an obstinate obligor who unreasonably impedes the determination of paternity or the appropriate support of the child may be awarded in the fair discretion of the trial court. As the obligee must prevail, the reasonableness of the conduct of obligor may be determined with hindsight, after the entry of an order. Recalling that the lack of good faith is an element of subsection (b) but absent in (a), fees may be awarded on a finding of less than bad faith; however, there still must be conduct which, in the discretion of the trial court, is not reasonable and warranted under all the circumstances.
Appellant filed a petition for allowance of appeal, and this Court granted review limited to the issue of whether the lower courts erred in denying appellant's request for counsel fees under § 4351(a). Our general standard of appellate review in child support matters is an abuse of discretion standard. Humphreys v. DeRoss, 567 Pa. 614, 790 A.2d 281, 283 ( 002); Ball v. Minnick, 538 Pa. 441, 648 A.2d 1192, 1196 (1994) (citing Costello v. LeNoir, 462 Pa. 36, 337 A.2d 866 (1975)). We have defined abuse of discretion as: "Not merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as shown by the evidence of record." Humphreys, 790 A.2d at 283 ().
Appellant argues that the lower courts erred by considering the conduct of either party as being relevant to a determination of the appropriateness of an award of counsel fees under § 4351(a). According to appellant, Brief...
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