Court sets fee standard for custody noncompliance

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Because Minn. Stat. sec. 518.175, subd. 6(c)(3) — which allows a party to seek “reasonable” attorney fees from a party who has wrongfully failed to comply with a visitation order — does not specify a standard for awarding those fees, a District Court judge should apply the standard for awarding conduct-based attorney fees in such cases, the Court of Appeals has ruled.

The conduct-based standard is contained in Minn. Stat. sec. 518.14, subd. 1 and associated caselaw.

The case considered by the court involved a father who alleged that the child’s mother interfered with his visitation rights and falsely claimed he had abused the child.

A Hennepin County District Court granted the father sole legal and physical custody of the child and awarded him $10,000 in attorney fees. The mother appealed.

The Court of Appeals affirmed the District Court judge’s decision.

“Given the extreme nature of [the mother’s] conduct and the breadth of the district court’s discretion in awarding conduct-based attorney fees, we cannot say that, on this record, the district court’s fee award is an abuse of its broad discretion,” wrote retired Judge Doris Ohlsen Huspeni, serving by appointment.

The nine-page decision is In re the Matter of Sharp v. Bilbro, Minnesota Lawyer No. CA-758-00.

St. Louis Park attorney Kathryn A. Engman, who represented the father, said that her client’s primary concern throughout the litigation was the well-being and safety of his daughter.

“All experts called at trial, including the mediator, the evaluator, Child Protection, the guardian, and incredibly, [the mother’s] own psychological expert, testified that leaving the child in the custody of the mother would endanger her,” observed Engman. Engman added that the award of attorney fees on a conduct-based basis was appropriate given the egregiousness of the mother’s actions, even though she was a recipient of public assistance.

“[My client’s] fees and costs have been enormous, while [the mother’s] fees were paid by her mother, and she qualified for in forma pauperis status in filing her appeal,” said Engman, who added that her client is elated with the Court of Appeals’ affirmation of the District Court.

St. Paul attorney Tammy Lynn Merkins was unavailable for comment.

Acrimonious relationship

A stipulated order adjudicated Terry Bilbro to be the father of Patricia Sharp’s child, and granted Sharp physical custody of the child subject to visitation by Bilbro. In addition to this paternity proceeding, the parties have been involved in various harassment, domestic abuse and criminal proceedings, including a criminal proceeding in which the mother pleaded guilty to making false allegations of abuse.

The father sought custody of the child and sanctions against the mother, alleging that the mother interfered with his visitation and falsely claimed he had abused the child. The evidentiary hearing on the father’s motion occurred over an 11-month period, during which the District Court granted the father physical custody pending final resolution of the dispute. Ultimately, the District Court granted the father sole legal and physical custody of the child and awarded him $10,000 in attorney fees against the mother.

The mother challenged the award to the father of physical custody during the hearing as well as the award to the father of attorney fees.

Custody and fees

After noting that the relevant part of an appeal is moot if an appellate court cannot grant relief, the Court of Appeals declined to address the issue of the award of custody to the father during the hearing.

“Because the district court ultimately granted to [the father] permanent custody, it is unclear how this court can grant [the mother] relief from the temporary order,” wrote Huspeni. “Because we decline to address the issue of temporary custody on the grounds that we cannot grant effective relief, we do not address the question of whether a temporary custody order is, in fact, appealable,” continued the judge in a footnote.

The court then turned to the mother’s argument that the record did not support the modification of the custody award granting permanent custody to the father. Generally, custody may be modified if the moving party shows — among other things — substantially changed circumstances and that a child’s current environment endangers the child, wrote Huspeni.

The court found the mother’s argument that the father has not shown changed circumstances because she interfered with the father’s visitation before he stipulated to placing physical custody with her “disingenuous.”

“[W]e decline to endorse a position that would encourage custodial parents to interfere or to continue to interfere with visitation in an attempt to prevail in a later custody dispute,” wrote Huspeni.

The court also disagreed with the mother’s argument that the father failed to show “any endangerment — much less the high level of endangerment mandated by the legislature[.]” The court observed that the mother’s own psychological expert testified that, among other things, “[The mother] will cause emotional psychological damage to her child,” her “perceptions of reality may interfere with her ability to parent,” and that “if [the mother] falsified abuse reports and subjected the child to intrusive exams, [the expert] would have concern about the child’s safety.” Therefore, the court found supportable the District Court’s finding of endangerment.

Finally, the Court of Appeals observed that the District Court awarded the father attorney fees under Minn. Stat. sec. 518.175, subd. 6(c)(3) (1998) by functionally applying the standard for conduct-based attorney fee awards under Minn. Stat. sec. 518.14, subd. 1 (1998). The court held that the standard for evaluating requests for attorney fees in a custody modification proceeding is that used for conduct-based attorney fees under Minn. Stat. sec. 518.14 (1998) and associated caselaw, and affirmed the District Court’s award of attorney fees to the father.

Noting that conduct-based fee awards may be awarded regardless of a party’s ability to pay the award, the court rejected the mother’s argument that the fee award was an abuse of discretion because she lacked the ability to pay it and because there is a significant disparity in the parties’ incomes.

The court also rejected the mother’s argument that the District Court failed to consider mitigating circumstances when awarding attorney fees.