Paying Spouse's Attorneys Fees

Each person pays his own attorney fees.

 
 
 
Key Number graphic102 Costs
  Key Number graphic102VIII Attorney Fees
    Key Number graphic102k194.16 k. American Rule; Necessity of Contractual or Statutory Authorization or Grounds in Equity. Most Cited Cases

As a general rule, a litigant must bear his own expenses including attorney fees, except where a statute permits the award of costs, a valid contract or stipulation provides for costs, or rules concerning damages permit recovery.

Krock v. Krock  46 Mass.App.Ct. 528
46 Mass.App.Ct. 528, 707 N.E.2d 839

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2. Attorney's fees. Aurora urges that the award of attorney's fees by the second judge in the amount of $2,000 must be vacated as there is no statutory basis for the award and no contractual provision for fees in the parties' separation agreement.
"As a general rule in Massachusetts, a litigant must bear his own expenses including attorney's fees, except where a statute permits the award of costs, a valid contract [or] stipulation provides for costs, or rules concerning damages permit[ ] recovery."
Judge Rotenberg Educ. Center, Inc. v. Commissioner of Dept. of Mental Retardation (No. 1), 424 Mass. 430, 468 (1997); Krock v. Krock, 46 Mass.App.Ct. 528, 531 n. 2 (1999). See Police Commr. of Boston v. Gows, 429 Mass. 14, 17 (1999) ("Massachusetts generally follows the 'American Rule' and denies recovery of attorney's fees absent a contract or statute to the contrary.") Additional exceptions to the general rule have been created, where, for example, an insured under a homeowner's policy has successfully established an insurer's duty to defend, Preferred Mut. Ins. Co. v.. Gamache, 426 Mass. 93, 95-97 (1997), or a party has been forced to litigate to obtain what previously had been awarded by a court even though the opposing party's conduct did not constitute contempt. Police Commr. of Boston v. Gows, 429 Mass. at 17-19. See the case summaries in Krock v. Krock, 46 Mass.App.Ct. at 531-532 n 2.
 
Beato v. Beato 60 Mass.App.Ct. 110
60 Mass.App.Ct. 1102, 798 N.E.2d 1045 (Table), 2003 WL 22724007 (Mass.App.Ct.)
 
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The following case is the biggie which most lawyers cite on appeals to demand fees:  
 
YORKE MANAGEMENT
v.
ELIZABETH CASTRO & ANOTHER
 
546 N.E.2d 342, 406 Mass. 17
 
the relevant section is
 


 
[22]     We have recognized the explicit language of G. L. c. 186, 14, which provides for payment of attorney's fees, and this language is not limited to attorney's fees for trial proceedings. See Darmetko v. Boston Hous. Auth., 378 Mass. 758, 765 (1979). Similarly, we approved the award of attorney's fees under G. L. c. 186, 18, where the statutory language is equally clear and not limited to attorney's fees for trial proceedings. See Ianello v. Court Management Corp., 400 Mass. 321, 325 (1987). The language of G. L. c. 93A, 9 (4), leaves no doubt as to the right to recover attorney's fees without any suggestion that fees for the appeal are excluded. See Kohl v. Silver Lake Motors, Inc., 369 Mass. 795, 801 (1976). The statutory provisions for a "reasonable attorney's fee" would ring hollow if it did not necessarily include a fee for the appeal. The right to appellate attorney's fees under these statutes is beyond dispute.

 
[23]     2. Procedure for the award of attorney's fees for appellate work. A more difficult question is whether the rule which we announced in Mellor v. Berman, 390 Mass. 275, 284 (1983), to the effect that "either appellate costs nor attorney's fees for the appeal can be imposed by a trial court absent authorization by an appellate court or by virtue of a rule or statute," applies to attorney's fees for appellate work under the statutes in the present case. We have treated as discretionary in the appellate court the award of attorney's fees on appeal where a statute provides for the payment of reasonable attorney's fees. Patry v. Liberty Mobilehome Sales, Inc., 394 Mass. 270, 272 (1985). Although, in Mellor, the court was deciding the issue under G. L. c. 186, 15B, a statute which does not figure in the present case, the rule has been extended to the award of appellate attorney's fees under the statutes in the present case. See Patry v. Liberty Mobilehome Sales, Inc., supra.

 
[24]     We are asked to abandon the Mellor rule in favor of a practice which would permit a trial Judge to award attorney's fees for appellate services without any authorization from an appellate court. Despite the force and diversity of the arguments for abandonment of the Mellor rule, we conclude that the rule is sound.

 
[25]     An appellate court is in a far better position to evaluate the worth of the appellate work than the trial Judge. The Justice of the appellate court who writes the opinion for the court develops nothing short of an intimacy with the record on appeal and the briefs. An appellate Justice on the quorum or panel which hears and decides the appeal develops a knowledge of the case and the value of the work of the attorney who seeks compensation. A trial Judge simply cannot bring to bear this familiarity with the appellate work.

 
[26]     3. The procedure under Mellor v. Berman. If Mellor has left the bar unclear as to the procedural requirements of an award of legal fees for appellate work, we set them forth.

 
[27]     A party who seeks an award of appellate attorney's fees should request them in his brief. If such party does not prevail, he is not entitled to fees, though no harm accrues from the request. If such party prevails, he may then submit his petition for fees together with the necessary back-up material and details as to hours spent, precise nature of the work, and fees requested. The other party should be given a reasonable time to respond. The appellate Justice who considers the petition may request more data and may set down the matter for hearing with notice to the other party. This procedure places no greater burden on the parties than the procedure requested before the trial Judge.

 
[28]     Judgment of the Superior Court affirmed.