Weibert v. Weibert, 2015 MT 29 (Feb. 3, 2015) (McGrath, C.J.) (5-0, aff’d)
Issue: Whether the district court erred in ordering Jim to pay Crissy’s attorney’s fees.
Short Answer: No.
Facts: Jim and Crissy divorced in February 2012. They have one minor child, BW, who is autistic. After a 2011 hearing on Crissy’s proposed relocation to Washington, the district court concluded it was in BW’s best interest to continue living with Crissy. Crissy moved to Washington and has lived there since.
The parties stipulated to a new visitation schedule, which also required Crissy to follow the recommendations of a doctor who had evaluated BW, Dr. Simon-Thomas.
Jim moved to modify the parenting plan in September 2012 to grant him primary custody, claiming Crissy was not following Dr. Simon-Thomas’s recommendations.
Procedural Posture & Holding: At the hearing on Jim’s motion, Jim withdrew his request to be the primary custodial parent and was mostly concerned about speech therapy. The parties conferred and reached agreement on all but four issues. The district court ruled on those issues and ordered Jim to pay Crissy’s attorneys’ fees incurred in defending against his motion to amend the parenting plan. The court held a hearing on the reasonableness of the fees, and ordered Jim to pay $10,359. Jim appeals, and the Supreme Court affirms.
Reasoning: A district court may order a party to pay the reasonable costs and fees incurred by the other party in maintaining or defending any proceeding under chapters 1 and 4 of Title 40, MCA. § 40-4-110, MCA. Jim argues this statute does not apply, but the Court holds that it does, as Jim moved to modify the parenting plan, which is governed by Chapter 4 of Title 40. The Court cites the Commissioners’ Notes, which state the authority to award fees and costs extends to different stages of the proceedings, and includes legal and professional services rendered after the entry of judgment. Section 40-4-110 does not require a party to prevail to receive attorneys’ fees; instead, the award is based on the respective financial resources of the parties. Jim’s change of position eight months after he filed his motion caused the parties to expend considerable resources on an issue that could have been resolved through discussion or mediation.