C.T. v. J.L.L.
| Decision Date | 15 November 2022 |
| Docket Number | ED 110039 |
| Parties | C.T., Respondent, v. J.L.L., Appellant. |
| Court | Missouri Court of Appeals |
FOR APPELLANT: Lawrence G. Gillespie, 120 South Central Avenue, Suite 650, St. Louis, Missouri 63105.
FOR RESPONDENT: Jay R. Anielak, 308 East High St. Ste. 106, Jefferson City, Missouri 65101.
GUARDIAN AD LITEM: Brad Van Zee, 104 North Mine Street, Potosi, MO 63664.
The Circuit Court of Washington County denied Appellant J.L.L.’s ("Father") motion for attorney fees. Father argues in his first two points on appeal that the trial court erred in deciding that it lacked statutory authority to award attorney fees. In his third and fourth points, Father argues the trial court abused its discretion in denying an award of attorney fees. We affirm the judgment of the trial court.
On May 21, 2018, Father filed his Petition for Declaration of Paternity, Order of Child Custody, Visitation and Support of his minor child, X.L., against the child's mother, M.H. Father and M.H. were never married.
On April 15, 2019, X.L.’s paternal grandmother, C.T. ("Grandmother"), filed her First Amended Petition for Third-Party Custody, Paternity, and Guardianship. She requested visitation with X.L. pursuant to Section 452.402.1 The trial court held a bench trial on Grandmother's amended petition. Thereafter, on January 20, 2020, the trial court entered judgment denying Grandmother's amended petition and concluding, as relevant here, that Grandmother did not meet the requirements of Section 452.402 for grandparent visitation. On February 25, 2020, Grandmother filed a notice of appeal in this Court. In her two points on appeal, Grandmother argued the trial court misapplied Section 452.402.
While Grandmother's appeal was pending, Father moved the trial court for an award of attorney fees on appeal pursuant to Section 452.355. Father noted that Grandmother's appellate brief was 17 pages, Father's brief was 24 pages, and Grandmother's reply brief was 15 pages. The record on appeal contained a 59-page transcript and a 60-page legal file. Father argued he did not have the wherewithal to pay his attorney fees on appeal and that Grandmother had the means to contribute to his fees. Father claimed $56,000 in attorney fees for the preparation of his appellate brief and review of Grandmother's reply brief, and anticipated an additional $14,000 in fees for oral argument and post-opinion motions, for a total of $70,000 in attorney fees on appeal.
Grandmother moved to dismiss Father's motion as a matter of law on the basis that Section 452.355 does not permit the assessment of attorney fees against an intervenor. Father responded that Section 452.402 provides for attorney fees in grandparent visitation cases.
In an opinion dated June 8, 2021, this Court affirmed the judgment of the trial court denying Grandmother visitation under Section 452.402. See X.P.E.L. by Next Friend C.T. v. J.L.L. , 627 S.W.3d 592 (Mo. App. E.D. 2021). Grandmother's argument on appeal was that she properly intervened in a dissolution action pursuant to Section 452.402.1(1), which applies when "[t]he parents of the child have filed for a dissolution of their marriage." This Court rejected that argument on the basis that, under the plain language of Section 452.402.1(1), a dissolution action involving the child's parents is a statutory prerequisite to a grandparent's seeking visitation under that subdivision. Father's paternity and custody action was not a dissolution action, and therefore Grandmother did not satisfy the statutory prerequisite to seek visitation under Section 452.402.1(1). X.P.E.L. , 627 S.W.3d at 597-603.
On August 27, 2021, the trial court heard Father's motion for attorney fees on appeal and Grandmother's motion to dismiss Father's motion. Father's counsel presented testimony and other evidence of 146 hours billed and fees totaling $62,951 on appeal. He later reduced the fees to $58,905.50.
In her post-hearing suggestions in opposition to Father's motion, Grandmother cited four reasons she should not be compelled to pay Father's attorney fees. First, Grandmother argued she was not liable for attorney fees as a matter of law because this Court previously has held that Section 452.355 permits the assessment of attorney fees against only a petitioner or respondent, and not third parties. Second, Grandmother claimed that Section 452.402, including its attorney fee provision in Section 452.402.7, is inapplicable to these proceedings because this Court held in Grandmother's first appeal in X.P.E.L. that Grandmother did not satisfy the statutory prerequisite to seek visitation under Section 452.402.1(1). Third, Grandmother contended the fees sought by Father were excessive and did not correspond to the quantity of work or amount of research required on appeal. Fourth and finally, Grandmother argued she lacked the resources to pay Father's outstanding fees, noting her annual gross income of approximately $44,000 and Father's annual gross income of approximately $22,000.
In suggestions in support of his motion for attorney fees, Father argued that Sections 452.355 and 452.402 authorize attorney fees and the trial court should award fees based on the financial resources of the parties and the merits of Grandmother's appeal.
The trial court subsequently entered judgment denying Father's motion for attorney fees on appeal. The judgment stated that, "the Court having reviewed Suggestions in Support and in Opposition to [Father's] Request for Attorney Fees on Appeal, denies [Father's] Request for the reasons cited in [Grandmother's] brief to the Court."
Father now appeals.
The judgment in a court-tried case will be affirmed unless there is no substantial evidence to support it, it is against the weight of the evidence, or it erroneously declares or applies the law. Rouner v. Wise , 446 S.W.3d 242, 249 (Mo. banc 2014). Id. (internal quotations and alterations omitted).
In his first two points on appeal, Father contends the trial court erred as a matter of law in denying him an award of attorney fees pursuant to either Section 452.355 or 452.402. We review such questions of law, including issues of statutory interpretation, de novo. X.P.E.L. , 627 S.W.3d at 595 ().
We begin with the general proposition that not every successful litigant is awarded attorney fees. Arrowhead Lake Ests. Homeowners Ass'n, Inc. v. Aggarwal , 624 S.W.3d 165, 167 (Mo. banc 2021). The American Rule provides that, absent statutory authorization or contractual agreement, each party is required to pay his own attorney fees. Id. ; Corley v. Corley , 128 S.W.3d 521, 526 (Mo. App. W.D. 2003).
Father does not allege any contract entitling him to attorney fees. Thus, we must first decide as a matter of law whether either Section 452.355 or 452.402 allowed the trial court discretion to assess attorney fees. If so, then we must determine whether the trial court abused that discretion in denying Father the award of attorney fees he requested.
In his first point relied on, Father argues that Section 452.355.1 allows for the assessment of attorney fees against an intervenor, like Grandmother in this case. Section 452.355.1 provides, in relevant part:
Unless otherwise indicated, the court from time to time after considering all relevant factors including the financial resources of both parties, the merits of the case and the actions of the parties during the pendency of the action, may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding pursuant to sections 452.300 to 452.415 and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding and after entry of a final judgment.
Grandmother responds that Section 452.355.1 does not allow for the assessment of attorney fees against an intervening third party. She cites Rogers v. Rogers , 803 S.W.2d 92, 99 (Mo. App. E.D. 1990), overruled on other grounds by Lay v. Lay , 912 S.W.2d 466 (Mo. banc 1995), and In re Bell , 481 S.W.3d 855, 866-67 (Mo. App. S.D. 2016), in which this Court held that Section 452.355.1 permits the assessment of attorney fees against only a petitioner or respondent, and not third parties.
Father distinguishes Rogers and Bell on the basis that the third parties in those cases were "draftees, not volunteers." Father argues they were added as necessary third parties for the determination of the property interests of the original parties to the dissolution actions and did not intervene to advance their own interests. See Rogers , 803 S.W.2d at 99 ; Bell , 481 S.W.3d at 859. Here by contrast, Grandmother affirmatively intervened pursuant to Section 452.402 to gain visitation with X.L.
All of that said, we need not decide whether Section 452.355.1 authorized an award of attorney fees here. As we explain in Point II below, Section 452.402.7 allowed the trial court discretion to order Grandmother to pay Father's attorney fees. Even if both Sections 452.355.1 and 452.402.7 were generally applicable here as a matter of law, we would limit our analysis to Section 452.402.7 because it addresses the subject matter of Grandmother's previous appeal in specific terms. "The doctrine of in pari materia recognizes that statutes relating to the same subject matter should be read together, but where one statute deals with the subject in...
To continue reading
Request your trial