Randall v. Hooper

• Decision Date: 10 April 2020
• Docket Number: No. 19-215,19-215
• Citation: 234 A.3d 971
• Parties: MiHae (Hooper) RANDALL v. Timothy Andrew HOOPER
• Court: Vermont Supreme Court

234 A.3d 971

MiHae (Hooper) RANDALL

v.Timothy Andrew HOOPER

No. 19-215

Supreme Court of Vermont.

October Term, 2019

April 10, 2020

Pamela A. Marsh of Marsh & Wagner, P.C., Middlebury, for Plaintiff-Appellant.

Timothy Andrew Hooper, Pro Se, and Elijah R. Bergman of Lynch & Foley, Middlebury, for Defendant-Appellee.

PRESENT: Reiber, C.J., Robinson and Eaton, JJ., and Burgess, J. (Ret.)¹ and Morris, Supr. J. (Ret.), Specially Assigned

REIBER, C.J.

¶ 1. Following a proceeding between MiHae (Hooper) Randall (mother) and Timothy Hooper (father) regarding the modification of parental rights and responsibilities and parent-child contact, mother filed a motion with the family division requesting that father pay a portion of her attorney's fees. The court denied mother's motion. Mother filed a motion to amend or alter the judgment, which the court also denied. Mother appeals. We hold that the trial court did not abuse its discretion in denying mother's request for attorney's fees and therefore affirm.

¶ 2. Mother and father divorced in 2012. The divorce order established that they would share physical and legal rights and responsibilities for their two children. As a result of disputes between the parties regarding where the children would attend school, in 2012 the court modified the parties' final decree to include a provision concerning the children's schooling, and in 2013 it awarded mother sole legal rights and responsibilities relating to the children's education. In 2018, father filed a motion requesting that he be awarded sole legal and physical parental rights and responsibilities for their daughter. He also requested that mother not have contact with daughter because mother was "displaying significant signs of paranoia." Following an extensive contested proceeding, including a four-day evidentiary hearing, the court determined there was a real, substantial, and unanticipated change of circumstances warranting modification of parental rights and responsibilities due to the daughter's exposure to domestic violence, her school absences, and "the deterioration of mother's mental health." The court further held that it was in the daughter's best interest for father to have sole legal and physical rights and responsibilities, subject to mother's parent-child contact.

¶ 3. Mother filed a motion for attorney's fees in September 2018, prior to the modification hearing. She renewed the motion in December 2018 on the final day of the hearing. The court held an evidentiary hearing on the motion for attorney's fees in March 2019 and denied the motion in a written order in April 2019. The court made the following findings, which are undisputed except as noted. Mother is unable to work due to illness. Her expenses are $1775.18 per month, and she earns $975 per month. She has a one-third ownership interest in Little Bay Cabins, a resort property, and she does not know the value of this interest. She has a legal debt of $49,560.75 to Marsh & Wagner, PC. Mother's attorney's fees are reasonable. Father earns $8993 per month and spends $9175 per month.² Father's spouse pays half of their household's expenses, and the court did not include the spouse's half in father's expenses or consider the spouse's income in deciding father's ability to pay attorney's fees. The court found father's income and expenses were roughly equal, and father did not have the ability to pay mother's attorney's fees "without liquidating his retirement account, selling his residence, or taking out loans." It found that mother "may yet have the ability to pay her attorney," given the unknown value of her business interest.

¶ 4. The court also considered father's justification in bringing the motion to modify parental rights and responsibilities, comparing father's actions to the mother's in Knutsen v. Cegalis, 2017 VT 62, 205 Vt. 144, 172 A.3d 180. The court observed that father "incurred attorney's fees when seeking to protect the best interests of their child by moving the court to provide relief from the other party's conduct," as the mother did in Knutsen, and that father did so "justifiably." The court also stated that father had tried to mediate his dispute with mother before filing his motion. Based on its findings and these considerations, the court denied mother's motion, holding: "On balance, father's greater financial resources do not require the court award mother attorney's fees, considering that but for mother's parenting behavior, father would not have moved to modify parental rights and responsibilities and parent-child contact and mother would not have incurred the instant attorney's fees."

¶ 5. Mother filed a motion to alter or amend the judgment on attorney's fees. The court agreed with one part of mother's argument—that the court had erred in finding that mother had refused mediation—and struck that finding from its opinion. The court otherwise denied mother's motion without further explanation.

¶ 6. Mother timely appeals, arguing the court abused its discretion in denying her request for attorney's fees. "We will affirm an award of attorney's fees unless it is an abuse of discretion." Willey v. Willey, 2006 VT 106, ¶ 26, 180 Vt. 421, 912 A.2d 441. We review factual findings for clear error and conclusions of law de novo. Stickney v. Stickney, 170 Vt. 547, 548, 742 A.2d 1228, 1230-31 (1999) (mem.).

¶ 7. "In proceedings dealing with motions to modify parental rights and responsibilities, the trial court may award attorney's fees in its discretion." Mullin v. Phelps, 162 Vt. 250, 268, 647 A.2d 714, 725 (1994) ; see also Turner v. Turner , 2004 VT 5, ¶ 9, 176 Vt. 588, 844 A.2d 764 (mem.) ("Attorney's fees are recoverable in divorce actions generally as ‘suit money.’ " (quoting 15 V.S.A. §§ 606, 607 )). "The considerations governing the award of ‘suit money’ are different from those factors governing the award of attorney's fees in nondivorce cases." Downs v. Downs, 159 Vt. 467, 471, 621 A.2d 229, 231 (1993). The respective resources of the parties is the most significant consideration in deciding whether to award reasonable attorney's fees in the context of a post-judgment motion to modify parental rights and responsibilities. See Mullin, 162 Vt. at 268-69, 647 A.2d at 725 ("In proceedings dealing with motions to modify parental rights and responsibilities, the trial court may award attorney's fees in its discretion. The power to allocate expenses among the parties mitigates the potentially onerous financial burden that can befall one who seeks to promote a child's best interests. In fashioning an award [of attorney's fees in a post-judgment divorce action], the court's primary consideration is the financial resources of the parties." (citation omitted)); see also Ely v. Ely, 139 Vt. 238, 242, 427 A.2d 361, 364 (1981) (explaining that "[i]n the usual, and vast majority of, [divorce] cases such allowance [of attorney's fees] borders on judicial routine, and is supported by evidence bearing on the circumstances of the parties generally"). But this consideration can be overcome by a host of other factors, including the reasonableness of the parties' litigation conduct and the strength of their positions; the reasonableness of the requested fees; whether the party from whom fees are sought is represented; and the parties' conduct leading up to and during the litigation. Cf. Knutsen, 2017 VT 62, ¶ 28, 205 Vt. 144, 172 A.3d 180 (considering father's conduct prior to and during litigation in reviewing trial court's denial of attorney's fees to mother); Mullin, 162 Vt. at 269, 647 A.2d at 725 (upholding trial court's limited award of attorney's fees to mother based on parties' respective financial circumstances, reasonableness of attorney's fees, and father's other financial obligations set forth in post-judgment divorce order). "[T]he question for the court is not one of bare ability to pay, but an equitable one." Simendinger v. Simendinger, 2015 VT 118, ¶ 14, 200 Vt. 378, 131 A.3d 744 (quotation omitted).

¶ 8. We hold that the family division did not abuse its discretion in weighing the equitable considerations in this case. The court considered the "financial circumstances of the parties," as required. Begins v. Begins, 721 A.2d 469, 474, 168 Vt. 298, 305-06 (1998) (quotation omitted) (reversing and remanding because court "completely failed to address the parties' respective financial needs and ability to pay"). The court determined that father's income and expenses were roughly equivalent; father could not pay mother's attorney without liquidating his assets; father's financial resources were greater than mother's; mother's income was less than her expenses, but the value of her business interest was unknown; and mother may be able to pay her attorney due to her business interest. It found mother's attorney's fees were reasonable. The court also found that the concerns that led father to seek modification of parental rights and responsibilities were justified and that the modification proceeding, and associated attorney's fees, resulted from mother's behavior. These findings and considerations support the court's exercise of discretion in deciding that father was not required to pay mother's attorney's fees. See Simendinger, 2015 VT 118, ¶ 14, 200 Vt. 378, 131 A.3d 744 ; see also Field v. Field, 139 Vt. 242, 244, 427 A.2d 350, 352 (1981) ("Abuse of discretion will only be found if the trial court fails to exercise its discretion, exercises it for clearly untenable reasons or to an untenable extent.").

¶ 9. Mother makes several arguments to support her claim that the court abused its discretion. First, mother argues that according to her calculation of father's expenses and income, father can afford to pay a portion of her attorney's fees. She specifically takes issue with several of father's listed expenses, including money for college savings, test preparation, and "Stern testing." Mother emphasizes that father has considerable financial...