The DC Court of Appeals in McClintic v. McClintic, addressed and analyzed in details when it is appropriate for the trial court in divorce litigation to award attorney’s fees.

Factually, parties unable to settle after more than a year and extensive mediation proceeded to trial with the trial court ultimately granting the divorce, dividing the marital property, and awarding the couple joint legal and physical custody of their three children.

Subsequently, both parties sought to recover attorney’s fees, each arguing that the other had made the litigation burdensome and oppressive.

Mrs. McClintic argued that Mr. McClintic’s systemically and throughout the case had vilify her, painted her in the worst possible light, while refusing to compromise, charging ahead with his legal assaults on her with his superior economic circumstances to browbeat and harass her with unnecessary and unfair salvos of legal attacks.

Mr. McClintic argued extensive tactics of delays and obfuscation on part of his wife contributing to unnecessary legal fees. Essentially bad faith and burdensome litigation.

The trial granted Mr. McClintic’s legal fees relying erroneously on D.C. Code § 16-911(a) enabling parties to litigate issues of divorce … without becoming public charges, especially where the resources of the parties are unequal without considering whether either party had shown a need for suit money which the Statute requires.

The Court of Appeals for the first time considered whether § 16-911(a) authorizes the court to award attorney’s fees to a spouse absent a showing that “suit money” is needed to enable that spouse to litigate the divorce action on a level playing field with the other spouse, and in short holding that — it does not.

Specifically, § 16-911(a)(1), awarding pendete lite relief provides:

  1. Require the spouse or domestic partner to pay pendente lite alimony to the other spouse or domestic partner; require one party to pay pendente lite child support, including health insurance coverage, cash medical support, or both, for his or her minor children committed to another party’s care; and require the spouse or domestic partner to pay suit money, including counsel fees, to enable such other spouse to conduct the case.

The general rule in civil litigation incorporated in domestic relations’ cases is that parties bear their own costs of litigation regardless of outcome, unless there are specific and explicit provisions for the allowance of attorneys’ fees.

Under the common fund doctrine, a prevailing party who preserves or recovers a fund or property for the benefit of others may collect attorney’s fees.

In the so-called bad faith exception — award of attorneys’ fees is permitted against a party who has acted in bad faith, vexatiously, wantonly, or for oppressive reasons connected to the litigation.  As the bad faith exception is punitive and intended to punish those who have abused the judicial process and to deter those who would do so in the future — such awards of fees are permitted when there are extraordinary circumstances or when dominating reasons of fairness so demand.

Suit money is meant to equalize the burdens between the spouses; otherwise, a party armed with superior economic resources may favor litigation as a means to force a settlement by attrition and that cannot be allowed and operates against the inherent fairness of the legal process.

The Court of Appeals held that neither the common fund nor the bad faith exception was applicable here and neither party under § 16-911(a)(1) had shown any basis that grant of suit money was necessary to enable or to subsidize the litigation and a defense thereto and thus the award of attorney’s fees was unwarranted.

Refer to our Washington DC Divorce Lawyer page for more details on this subject as well as other DC Divorce topics.

Categories: Family Law.