The short answer is, it depends. In Indiana, there are two primary ways to obtain appellate attorney fees in a divorce matter. The first is found in Indiana Code section 31-15-10-1.1 The second is found under Indiana Rule of Appellate Procedure 66(E). Your basis for seeking attorney’s fees will determine which statute/rule to proceed under. In this blog, we provide a brief overview of the two mechanisms for obtaining appellate attorney’s fees in a divorce case, and when to use one over the other.
Indiana Code 31-15-10-1 provides that a trial court may order a party to pay a reasonable amount of attorney’s fees to the other party in maintaining or defending an action. This code section applies to divorces and legal separations. The purpose of this code section is to ensure a party in a divorce action, who would otherwise be unable to afford an attorney, is able to retain representation.2 In making an award of attorney’s fees, a trial court “must consider the resources of the parties, their economic condition, the ability of the parties to engage in gainful employment and to earn an adequate income, and other factors that bear on the reasonableness of the award.”3 Furthermore, Indiana courts have consistently held that an award for attorney’s fees is appropriate where one party is in a superior position to pay fees over another party. As such, if you find yourself in economic hardship and there is an appeal of your divorce decree, you may be able to obtain appellate attorney fees under this code section or other such code sections in the numerous parts of the divorce and paternity acts.
Indiana Rule of Appellate Procedure 66(E), on the other hand, provides that the Court of Appeals may assess damages, including attorney’s fees, if an appeal is “frivolous or in bad faith.” The Court of Appeals is limited in awarding attorney’s fees under this rule “to situations when an appeal is permeated with meritlessness, bad faith, and frivolity, harassment, vexatiousness or purpose of delay.”4 This provision applies to appeals in general, not just divorces. The purpose of this provision, as opposed to Indiana Code 31-15-10-1, is to discourage the filing of frivolous appeals. There are two categories for seeking appellate attorney’s fees under this rule, which are “substantive” and “procedural” bad faith claims.5 Whether you can proceed under a “substantive” or “procedural” bad faith claim is extremely fact-sensitive, and too lengthy for a blog. What is important to know is there are two categories claims fall under when seeking attorney fees under this rule. If you feel an appeal is being brought in bad faith, you may be able to seek an award of appellate attorney’s fees.
In sum, there are two options for obtaining appellate attorney’s fees in a divorce matter. The first is done at the trial court level for reasons of economic hardship. The second is done at the appellate level for bad faith or frivolous appeals. Divorces are emotional times for all involved. Not only are they emotional, but oftentimes complex, especially when it comes to obtaining attorney’s fees. Obtaining skilled counsel is key to relieving some of the burden that comes with divorce. This blog was written by attorneys at Dixon & Moseley, P.C. who handle divorces, and appeals, of all types throughout the state. It is written and posted for general educational purposes and is not to be construed as legal advice or solicitation for services. It is an advertisement.