All in the Family: Recent fee claim, UCCJEA and HRO reversals

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Aside from the slew of reversals involving child protection cases over the last month, the Minnesota Court of Appeals was busy dealing with other issues more pertinent to family court practitioners.

Need-based fee clarification

In Luong v. Ho, Husband and Wife divorced in 2018 after a 19-year marriage. Husband earned $3,271 in gross monthly income. Wife’s medical condition prevented her from working. Wife’s monthly expenses totaled $2,946. Husband’s monthly expenses totaled $1,370.

The District Court ordered Husband to pay Wife $973 in monthly child support and $1,300 in permanent spousal maintenance. The order left each with a monthly cash deficit.

Wife was awarded the marital residence. The District Court divided the remaining marital property equally and ordered Wife to pay Husband a property equalizer of $130,000.

Wife sought an award of need-based attorney fees. Neither party had cash or income sufficient to cover the fees. Still, the District Court deducted $24,450 from the property equalizer owed to Husband as fees for Wife.

Husband appealed.

The Court of Appeals determined that the District Court erred in finding that Husband had the ability to pay Wife’s fees. Pursuant to Minn. Stat. sec. 518.14, the court “shall” award attorney-based fees — but only if it finds that the party from whom the fees are sought “has the means to pay them.”

Judge Kevin Ross, writing for the majority, opined that “the fee award here resulted from an irreconcilable application of the controlling phrase ‘the means to pay.’”

He suggested that the District Court’s calculation of income and expenses, inclusive of spousal maintenance and child support, resulted in each party being left with a substantial monthly deficit — rendering both parties unable to pay fees of the other from their income.

The District Court also reasoned that “because [Husband] would receive cash equalizer payments from [Wife], [H]usband had the means to pay while [Wife] did not.

Ross took issue with that the approach, noting that equalizer payments are simply the marital property to which Husband is entitled to as an offset to the value of marital property to which Wife is entitled to. He suggested that the District Court “overlooked the fact that [Husband and Wife] will have the same means to pay the same amount…”

In her dissent, Judge Denise Reilly found no abuse of discretion on the part of the District Court. She opined that the statutory elements of a need-based fee award were supported by the record, suggesting that Husband’s income substantially exceeded his monthly expenses.

It appears, however, she overlooked the fact that Husband was also ordered to pay combined support to Wife in the amount of $2,273 on top of his other monthly expenses.

The Luong case reiterates the notion that a “double dip” on the division of asset and debts as part of a divorce is inappropriate. This issue comes up most often in the context of spousal maintenance, but applies equally to an award of need-based fees.

‘Repeated’ incidents as harassment

In Bjerke v. Flomo, Mother and Father were married for six years and had a child in common. Father became upset when he learned that Mother was telling others that he assaulted her in the past.

During a parenting time exchange, Father entered Mother’s car, demanding that she tell him when he assaulted her. Mother asked Father to get out of the car. Father initially refused, yelling at Mother, but eventually exited. Mother drove away.

Over the following 12 hours, Father initiated over 50 phone calls to Mother. He also sent her a number of text messages.

Several days later, Mother petitioned for a harassment restraining order. The District Court granted an ex parte HRO and Father demanded an evidentiary hearing.

Following the hearing, the District Court dismissed Mother’s Petition, suggesting that “[t]hese facts have proven that [Father] engaged in an incident of harassment.”

However, the District Court did not find the harassment to have occurred “repeatedly,” as required by statute. Instead, it considered Father’s actions part of one larger, single, incident.

Mother appealed, arguing Father’s actions constituted “repeated incidents.”

The Court of Appeals agreed with Mother, and reversed. Judge Randall Slieter suggested that “no definition for ‘repeated incidents’ is found within the statute.” Consequently, the Court of Appeals considered the plain, ordinary meaning of that statutory phrase.

Slieter wrote that “[t]he dictionary defines ‘repeated’ as…’occurring again and again.’ He found that Father’s behavior was “repeated,” in that he: (1) confronted Mother; (2) entered Mother’s car; (3) refused to leave Mother’s car; and (4) continually called and texted Mother over the course of 12 hours.

It is difficult to understand how the District Court viewed varying actions over a period of 12 hours as a “single” event. Perhaps an effort was being made to avoid the issuance of an HRO in the context of two parents, who must continue to communicate with each other?

UCCJEA continuing jurisdiction

In Wadsworth v. Wadsworth, Father and Mother moved to Minnesota in 2009. Two minor children were born of their marriage. Father and Mother divorced in 2014. They were awarded joint physical custody.

The judgment and decree recited that Minnesota had jurisdiction under the Uniform Child Custody Jurisdiction and Enforcement Act.

Father moved to Ohio in 2016. Mother also moved to Ohio, so they could continue to effectively co-parent. Father filed a petition, in Ohio, to register the Minnesota decree in January 2018.

Two months later, while his petition was pending in Ohio, Father returned to Minnesota. Mother remained in Ohio. In April 2018, the Ohio court confirmed registration of the Minnesota decree.

Shortly thereafter, Mother filed a motion to modify the decree in Ohio.

In August 2018, Father filed a motion in Minnesota, seeking to modify the Minnesota decree. Mother filed a responsive motion, arguing that Minnesota lacked subject matter jurisdiction.

The Minnesota District Court determined that it no longer had exclusive, continuing jurisdiction and that Mother’s pending Motion in Ohio precluded Father’s later-filed Motion in Minnesota. Father appealed.

In reversing, the Court of Appeals noted that “the state issuing a child custody determination has exclusive, continuing jurisdiction over that determination until either: (1) a court of this state determines that the child [or] the child’s parents…do not have a significant connection with this state…;or (2) a court of this state or a court of another state determines that the child [or] the child’s parents…do not presently reside in this state.”

In short, Judge John Rodenberg opined that Father, who is a joint physical custodian, continues to have a “significant connection” to Minnesota, in that he resides here.

The court also suggested that Father’s registration of the Minnesota decree in Ohio was “irrelevant to exclusive, continuing jurisdiction.”