Hubert v. Hubert

• Docket Number: 120135
• Decision Date: 02 February 2023
• Parties: IN RE THE MARRIAGE OF: CORA ANN HUBERT, Petitioner/Appellee, v. CORY DREW HUBERT, Respondent/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

2023 OK CIV APP 40

IN RE THE MARRIAGE OF: CORA ANN HUBERT, Petitioner/Appellee, v. CORY DREW HUBERT, Respondent/Appellant.

No. 120135

Court of Appeals of Oklahoma, Division II

February 2, 2023

Mandate Issued: 10/26/2023

APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY, OKLAHOMA HONORABLE GREGORY J. RYAN, TRIAL JUDGE.

Christopher D. Smith, Sarah D. Willey, Tommy J. Pfeil, THE SMITH FIRM, Oklahoma City, Oklahoma, and Glenn K. Brown BALL¦MORSE¦LOWE, Oklahoma City, Oklahoma, for Petitioner/Appellee.

William E. Liebel, James T. Gorton, LAW OFFICES OF WILLIAM E. LIEBEL, Oklahoma City, Oklahoma, for Respondent/Appellant.

JANE P. WISEMAN, PRESIDING JUDGE.

¶1 Cory Drew Hubert (Father) disputes the amount of attorney fees the trial court awarded him in this divorce proceeding pursuant to four separate statutes authorizing such awards under the circumstances presented. Cora Ann Hubert (Mother) was ordered to pay him attorney fees, but the trial court reduced the fees after considering the parties' respective means and property. Father appeals this order and the trial court's denial of his motion to reconsider that ruling. The question here is whether the trial court erred as a matter of law in reducing the amount of attorney fees awarded based on the parties' respective means and property. After review, we conclude it was error to apply this additional factor in setting the award and therefore an abuse of discretion to deny Father's motion to reconsider. We reverse and remand with directions to enter an order consistent with this Opinion.

FACTS AND PROCEDURAL BACKGROUND

¶2 After a decree of dissolution was filed on March 19, 2021 Father filed an application for attorney fees and costs on March 26, 2021. Because the sole issue on appeal involves the attorney fee award, we will confine our background discussion to this issue alone. We will quote and summarize below the trial court's detailed order memorializing its decision on the fee award.

¶3 The trial court stated that it "applied a Burke [ sic ] analysis to the matters with regard to the circumstances of attorney fees, hours expended, and attorney fee rates as to reasonableness in nature." The court stated it took into account Husband's attorneys "Mr Liebel and Mr. Gorton's backgrounds in reviewing their billing hours, finding that the hourly rates recorded in the matter are in fact reasonable based upon counsel's experience and standing in the community." It found "that the amounts expended, although very high, are not unreasonable in the circumstances of a long-standing and highly contested matter between the parties." It further found that "the amount of hourly fees was appropriate and reasonable, as well as the amount of time expended in the circumstances in the prosecution and defense of the various issues in the case."

¶4 The court noted Husband asserted multiple grounds for attorney fees, some discretionary and some, as argued by Husband, mandatory. The court found 43 O.S. § 110 (D) states "the discretionary circumstances for the authority for the Court to consider to grant or deny attorney fees." Looking at 43 O.S. § 110 (D) and case law such as Thielenhaus v. Thielenhaus, 1995 OK 5, 890 P.2d 925, the court found, "In all those matters the proposition stands for discretionary attorney fees that the Court considers (1) just and proper, (2) the totality of the circumstances, and (3) conduct of the judicial balancing of the equities." The court concluded it must grant attorney fees "only to that litigant who qualifies for the benefit through the process of that judicial balancing of the equities." The court said:

Not often argued as much as the Court believes it should be, Thielenhaus, and every case quoting Thielenhaus, since just about also make sure that the trial court is aware that it must consider the respective parties and their means and property of each, and that is an important consideration in this matter.

¶5 The court noted that Husband sought attorney fees under four different statutes. The court said, "That is a statutory based circumstance, which if the facts warrant it under application of the statute, the Court shall grant attorney fees." The court concluded, "A different distinguishing factor here is that if the Court does consider a mandatory attorney fee statute to be in place, the Court still must determine whether those fees are reasonable or what the reasonable amount must be." The court made findings as to each of the statutory grounds.

1. Title 43 O.S.2021 § 112.6

¶6 Title 43 O.S.2021 § 112.6 provides that, in proceedings involving dissolution of marriage, separate maintenance, or custody, domestic violence or stalking, victims "shall be entitled to reasonable attorney fees and costs after the filing of a petition, upon application and a showing by a preponderance of evidence that the party is currently being stalked or has been stalked or is the victim of domestic abuse." Pursuant to § 112.6, "The court shall order that the attorney fees and costs of the victimized party for the proceeding be substantially paid for by the abusing party prior to and after the entry of a final order." The court in this case found the following regarding § 112.6:

In this case the facts revealed and were found by the trial court that there was [ sic ], in fact, incidents of physical abuse, primarily that which was perpetrated by the Petitioner mother against the Respondent father on September 9, 2018, when she attacked him with a hammer after he confronted her about having hired and written and delivered a check to a hitman to commit a violent act against the Respondent father; that is having him murdered. Under consideration of §112.6 the Court does, in fact, find that there is a preponderance of the evidence that the Respondent father was, in fact, a victim of domestic abuse. Section 112.6 fees under the mandatory application of §112.6 are approved by this Court.

2. Title 43 O.S.2021 § 107.3 (D)

¶7 Title 43 O.S.2021 § 107.3 (D) provides that if the court determines in a child custody proceeding "that a party has intentionally made a false or frivolous accusation to the court of child abuse or neglect against the other party," it must undertake any or all of the following three actions: "1. Find the accusing party in contempt for perjury and refer for prosecution; 2. Consider the false allegations in determining custody; and 3. Award the obligation to pay all court costs and legal expenses encumbered by both parties arising from the allegations to the accusing party."

¶8 The court found it could proceed with any or all of the three actions. It concluded, "In this matter Petitioner mother used the child as a party of the Victim Protective Order in order to keep the child away from Respondent father for a significant period of time." The court noted that the testimony indicated Mother kept the child away from Father for 46 days. It also found that Mother falsely accused Father of throwing the child across the room and injuring him. The court stated, "Accepting the facts by the Court, and making the findings that false allegations had been made... §107.3(D) does come into play."

3. Title 43 O.S.2021 § 112 (D)(2)

¶9 Title 43 O.S.2021 § 112 (D)(2) provides if any action brought regarding the care, custody and support of minor children "which the court determines to be contrary to the best interests of the child, the prevailing party shall be entitled to recover court costs, attorney fees and any other reasonable costs and expenses incurred with the action." The trial court found:

In furtherance of the evidence of Section 112(D)(2) the Court is aware of the circumstances involved and the allegation with regard to the child's presence and the physical altercation between the parties. The Court has reviewed the transcript of the predecessor Court in an abundance of caution, and found that the predecessor judge indicated on the record that he was, in fact, shocked that Petitioner mother had kept the child from Respondent father for forty-six (46) days in question on the basis of these false allegations. That was relitigated to this Court under several circumstances as well, and the Court shares in the dissatisfaction of these circumstances and acts and omissions perpetrated by Petitioner mother.

4. Title 22 O.S.Supp. 2019 § 60.2 (C)(2)

¶10 Title 22 O.S.Supp. 2019 § 60.2 (C)(2) provides, "If the court makes specific findings that a petition for a protective order has been filed frivolously and no victim exists, the court may assess attorney fees and court costs against the plaintiff." As to this statutory ground for attorney fees, the court found:

Under these circumstances the Court was taken aback by the testimony provided when the police officer had indicated that the Petitioner mother had even admitted to him that she was using the VPO as an advantage in her custody battle with Respondent father. In fact, it rises to the level of almost outrage that someone would resort to those types of circumstances. There is also a discovery allegation made with regard to that, and the Court in making these overall findings indicates that although the Court does not rule that the discovery allegations of infraction were not appropriate, it is not based or formed the basis of the opinion of the Court's decision to render attorney fees in this case.

5. The attorney fee award

¶11 The court concluded attorney fees are warranted pursuant to all four statutes "by the evidence concerning the acts and omissions of Petitioner mother." The court said that it "takes all of that into account with the litany of the history of direction to trial courts given to us by the appellate courts." It said, "The Court refers to that in some fashion, but Title 43, Okla. Stat. Ann §110(D...