NISSENBAUM’S STANDARD SET OF
SUMMARIES OF LAW - DIVORCE
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X. Counsel Fees and Costs.
10.1 "The judicial setting of counsel fees involves a consideration of ‘numerous, complex variables.’ " Downey v. Downey, 55 Mass. App. Ct. 812 (2002). See Robbins v. Robbins, 19 Mass. App. Ct. at 543. See generally 1 Kindregan & Inker, Family Law and Practice �� 6.4 (2d ed. 1996)
10.2 Alimony and counsel fees should be considered together. Zildjian v. Zildjian, 8 Mass. App. Ct. 1, 17 (1979):
[A] spouse's need for adequate legal representation in a lawsuit affecting the marital status is not materially different from those other needs ... which fall within the more common meaning of alimony or support ... Although ... particular considerations in measuring ...[counsel fees] may differ from those applicable to alimony or support, the basic factors of need and relative economic positions of the spouses are relevant to all those matters.
10.3 a. In awarding attorneys fees and costs, trial courts are instructed to take a conservative approach to these matters:
...awards in domestic relations litigation are to be governed by caution and restraint, for "fees in such cases are awarded on strictly conservative principles."
b. Later cases suggest a softening of this conservative ("penurious") approach - see discussion in Pemberton v. Pemberton, 9 Mass. App. Ct. 9,16-17 (1980).
Nevertheless, it remains the rule that awards in domestic relations litigation are to be governed by caution and restraint ...
Kane v. Kane, 13 Mass.App.Ct. 557-560 (1982).
10.4 a. In considering an award of attorneys fees and costs, the Court may look to the services actually performed and, as well, whether the services were reasonably necessary, so as to enable a Court to evaluate the time and labor required, the novelty and difficulty of questions involved, and the results obtained. Supreme Judicial Court Rule 3:22.
b. Much "discretion must be accorded a judge in determining the necessity and amount of attorney's fees." Robbins v. Robbins , 19 Mass. App. Ct. at 543. Moriarty v. Stone, 41 Mass. App. Ct. 151, 159 (1996) cited with approval in Downey v. Downey, 55 Mass. App. Ct. 812 (2002).
c. Much discretion is given to trial judges in setting counsel fees "if their findings of fact are not clearly erroneous." Krock v. Krock, 46 Mass. App. Ct. 528, 533 (1999), quoting from Kennedy v. Kennedy, 23 Mass. App. Ct. 176, 179 (1986), further appellate review at 400 Mass. 272 (1987), cited with approval in Hernandez v. Branciforte, 55 Mass. App. Ct. 212 (2002).
10.5 a. In order to meet her burden of proof, Robbins v. Robbins, 19 Mass. App. Ct. 538, 541 (1985), the Wife has provided the affidavit of her counsel and, as well, among other information and documents:
what work was done;
how much time each task took;
the hourly rate charged by each attorney or paralegal; and
whether any novel issues were involved.
b. The Court may also consider:
10.6 In the exercise of its discretion, the Court may compare the services and legal fees of the parties and evaluate the work which was performed by counsel for each party as reflected in the pleading and during court appearances and trial. Robbins v. Robbins, 19 Mass. App. Ct. 538, 541 (1985).
10.7 After a trial, G.L. c. 208, �38 controls the awarding of any attorneys fees or costs.
10.8 The Court may award additional legal fees and costs to the Wife in consideration of the Husband's obstructionist tactics. Kennedy v. Kennedy, 400 Mass. 272, 275 (1987). Downey v. Downey, 55 Mass. App. Ct. 812 (2002). (Husband’s "obstructionist conduct" prolonged proceedings and caused wife’s counsel to engage in extra ordinary discovery efforts.)
10.9 "In deciding the question of attorney's fees, the relative financial capacities of the parties are, of course, factors which should be considered." Fugere v. Fugere, 24 Mass.App.Ct. 758,761-762 (1987); citing Hano v. Hano, 5 Mass. App. Ct. 639, 642 (1977) and Robbins v. Robbins, 19 Mass. App. Ct. 538, 544 n.11 (1985).
10.10 No one factor should be viewed in a vacuum. Pemberton v. Pemberton, 9 Mass. App. Ct. 9, 17 (1980) (referring to a "considerable" number of "judgmental variables"); Robbins v. Robbins, 19 Mass. App. Ct. 538, 543 (1985) (referring to "numerous, complex variables"); Kane v. Kane, 13 Mass.App.Ct. 557, 560 (1982) (referring to "the application of many factors"); and Perkins v. Blake, 3 Mass. App. Ct. 415 9(1975) (noting that no "single factor is necessarily decisive").
10.11 An award is even more appropriate when the Wife will suffer hardship if she has to pay her own attorneys fees and costs. Frietas v. Frietas, 26 Mass. App. Ct. 196,201 (1988). Kennedy v. Kennedy, 400 Mass. 272, 275 (1987).
10.12 Where a case is long and difficult, where a party has adopted dilatory and evasive litigation practices and is recalcitrant and taken positions which increase counsel fees, the Probate Court should award the responding party her attorney's fees. Perkins v. Blake, 3 Mass. App. Ct. 415 (1975); Redding v. Redding, 398 Mass. 102, 110-111(1986); Davidson v. Davidson, 19. App. Ct. 364, 378 (1985).
10.13 Where a party provokes unnecessary or ill - motivated litigation, the provocateur ought not to gain an advantage through its use, nor force the other party to bear the burden of defending such claims. See, Bird v. Bird, 24 Mass.App.Ct. 362 (1987),
10.14 Divorce counsel should not further irrational divorce litigation. Larson v. Larson, ("Larson III) 37 Mass.App.Ct. 106, 112 (1994) (Brown, J., concurring).
10.15 An award of counsel fees should be awarded to the Wife where the Husband made the proceedings unnecessarily complicated and burdensome. DiVenuti v. Reardon, 37 Mass. App. Ct. 73 (1994).
10.17 The intransigence of the husband in revealing assets and his resistance to the pre-trial discovery process are factors the court may consider in awarding counsel fees. Allen v. Allen, 25 Mass. App. Ct. 515, 524 (1988). Grubert v. Grubert, 20 Mass. App. Ct. 811, 819-820 (1985).
10.18 Silverman v. Sprio,, ___ Mass. ___, SJC-08819 (February 24, 2003.)
a. Judge has authority to enter a QDRO to ensure payment of attorney’s fees.
b. The judge may correctly order "accommodation for the tax consequences resulting from the liquidation of retirement assets. Cf. Rice v. Rice, 372 Mass. 398, 402 & n.4 (1977) (if raised, tax consequences of marital distribution should have been considered by judge); Fechtor v. Fechtor, 26 Mass. App. Ct. 859, 866 (1989) (appropriate to consider and minimize tax consequences when apportioning marital assets)."
c. As long as an award of attorney's fees is "not incommensurate with an objective evaluation of the services performed . . . '[t]he award of such costs generally rests in sound judicial discretion. . . . "
10.19 An award of counsel fees is "presumed to be right and ordinarily ought not to be disturbed." Ross v. Ross , 385 Mass. 30, 39 (1982), quoting from Smith v. Smith, 361 Mass. 733, 738 (1972) both cited with approval in Downey v. Downey, 55 Mass. App. Ct. 812 (2002).