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Billing Rates 2022: Court says judge could, but didn’t have to, award fees for father’s successful appeal

Scott Lauck//November 21, 2022//

Billing Rates 2022: Court says judge could, but didn’t have to, award fees for father’s successful appeal

Scott Lauck//November 21, 2022//

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A split panel of the Missouri Court of Appeals Eastern District ruled Nov. 15 that a judge had the legal authority to award attorneys’ fees to a father who successfully fought off his mother’s attempt to gain court-ordered visitation rights.

However, the panel’s majority added, the judge didn’t abuse his discretion when he declined to grant those fees. But Judge Gary M. Gaertner Jr. partly dissented, saying that, now that the legal issues had been clarified, the parties should get a new hearing on whether the fees were justified.

“A failure of the trial court to exercise its discretion due to a mistaken view of its authority is grounds for remand, rather than deference,” Gaertner wrote.

The ruling leaves the father’s attorney, Larry Gillespie of Gillespie, Hetlage & Coughlin in Clayton, without an award to cover the cost of a case that has now gone to the Court of Appeals twice. However, Gillespie said in an interview that it at least sends a clear signal that judges have the authority to grant such awards.

“Needless to say, I agreed wholeheartedly with the dissent,” he said.

The case stems from a dispute involving a child, referred to as X.P.E.L. in the case, who was born to unmarried parents. The father filed a petition for a declaration of paternity and custody of the child. His mother initially sought third-party custody but later abandoned that effort and supported her son’s bid for custody.

She later filed an amended petition seeking visitation under a Missouri statute that allows grandparents to make such a request under certain conditions.

In June 2021, the Eastern District affirmed an earlier finding that the grandmother failed to satisfy the requirements for visitation under state law. The court said the statute only applies to dissolution proceedings and declined to read it broadly to apply to paternity and custody actions as well.

Although the father had won on appeal, Washington County Associate Circuit Judge Troy K. Hyde declined to order the grandmother to pay his $70,000 in attorneys’ fees, citing the arguments the grandmother had made. It wasn’t clear, however, whether he was swayed by her legal argument that the relevant statutes of Missouri’s domestic relations didn’t apply, or by her arguments that the fee was excessive and that she couldn’t afford to pay.

Judge Cristian M. Stevens, writing for the appellate court, said plain language of the statute allowed the judge to award the fees against the grandmother, who had willingly intervened in the case. However, he and Judge John P. Torbitzky affirmed the judge’s decision to deny them, as he might also have considered her more discretionary arguments.

“In any event, our standard of review requires us to affirm the trial court’s judgment if it is cognizable under any theory, even if the reasons advanced by the trial court are wrong,” he wrote.

Jefferson City attorney Jay Anielak, who represented the grandmother, couldn’t be reached for comment.

The case is C.T. v. J.L.L., ED110039.

Billing Rates 2022

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