Indiana adopted English common law as it’s law. Under English Common law, the losing party paid all the legal fees. Indiana rejected this part of English Common Law and adopted what has become known as the American Rule. Whereby each party pays their own fees unless a statute provides otherwise. The Divorce and Paternity Acts deviate from the American Rule and allow the court to order one side to pay the other side’s legal fees in one (1) of two (2) ways. This blog explores appellate attorney’s fees.
Still, as a general rule, each side pays their own appellate attorney’s fees. However, if the court finds it would be just, such as with parties who make vastly different amounts of income, it may order one side to pay the others appellate legal fees before or after the divorce. This is quite common with different wage earners, such as where one party has stayed home and raised the children while the other side has established a thriving career. The purpose of this rule is to give each side a fair chance at an appeal. It would be unfair if only the monied party could afford and prosecute an appeal. Thus, the rule.
The second reason a trial court may order a fee award is for bad behavior. What is meant by this is to delay other acts or failures to act that raise the cost of appeal. This has long been a rule under the Divorce and Paternity Acts. Particularly where a party delays, such as by continuances, the litigation, the trial court can and does award legal fees. Thus, at least in divorce or paternity cases a litigant’s delays can result in an attorney fee award.
At this point, some litigants think about the Court of Appeals of Indiana as well. Aside from a trial court being able to order appellate legal fees before or after the appeal, so can the Court of Appeals on narrow ground; the rule is as follows: “The Court may assess damages if an appeal, petition, or motion, or response is frivolous or in bad faith. Damages shall be in the Court’s discretion and may include attorney’s fees. The Court shall remand the case for execution. This means so the trial court can enforce the Court of Appeals attorney’s fee award.”
All in all as it relates to cases under the Divorce and Paternity Acts there are number of attorney’s fee award rules and statute to effectuate fundamental fairness in the proceedings. Again, this is an aberration of the American Rule. A civil litigant involved in other litigation is unlikely to have cases and statutes to allow them to recover attorney’s fees.
This blog was written by attorneys Ciyou & Associates wo handle appeals of final orders from all Indiana trial courts from all of Indiana ninety-two 92 counties. This blog is written for general educational purposes. An educated legal consumer is a better legal consumer—he or she can help their attorney make the best case possible in court. This blog is not written to be relied upon in any legal matter of legal issue. Moreover, the blog is not written to be legal advice to be applied to your situation. We at Ciyou & Associates, P.C. hope this blog on who pay’s appellate attorneys fees is helpful to you.