In this case, plaintiff and defendant, both attorneys, were married in 1973. The marriage produced two children who were adults at the time of the divorce. In the early 2000s, plaintiff lost approximately $1 million in investments when the stock market crashed. The parties agreed at trial that the initial collapse of their marriage coincided with the loss. However, they also provided extensive testimony regarding their respective perspectives on the subsequent breakdown of their relationship, including the fact that the couple stopped sharing a marital relationship at least 10 years prior to trial. At some point, plaintiff began engaging in a long-term affair with Person J, whom he secretly supported financially for several years prior to the divorce.
The trial court ultimately ordered plaintiff to pay defendant $68,452.60 in attorney fees. Plaintiff argues that the trial court erred by entering an order for attorney fees related to his misconduct concerning his support of Person J.
It is well-settled that attorney fees are generally not recoverable as of right in divorce cases—fees may only be awarded when authorized by statute, court rule, contract, or common-law exception. At issue in this case is the common-law exception permitting recovery of attorney fees on the basis of misconduct. Under this exception, an award of legal fees is authorized where the party requesting payment of the fees has been forced to incur them as a result of the other party’s unreasonable conduct in the course of the litigation.
To award fees on the basis of misconduct, the trial court must determine that misconduct, in fact, occurred and that the misconduct caused the party seeking fees to incur the fees awarded. The party requesting fees bears the burden of proving that the fees were incurred and that the fees requested are reasonable. A party may not merely present a billing statement for approval under this exception; rather, he or she must demonstrate by documentation and testimony what charges can be attributed to the other party’s misconduct.
The trial court found that certain charges submitted by defendant were supported by testimony and other record evidence. By way of example, the trial court awarded attorney fees incurred with respect to defendant’s motion for substitute service of a subpoena directing Person J to appear for a deposition. Billing entries explicitly referred to the motion by name. In addition, it was testified that the motion was necessary because Person J was avoiding service, and her testimony was required to demonstrate the falsity of plaintiff’s assertion concerning the extent of his support. The trial court did evaluate each entry individually, accepting some, rejecting others, and reducing the amount for some charges to reflect that not all of the time spent was occasioned by plaintiff’s misconduct. The trial court found that the services reflected in the billing entries it approved were incurred as a result of plaintiff’s misconduct during discovery.
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- Property division
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