Montana law provides that after considering the financial resources of both parties a district court may order a party to pay the other party's reasonable attorney fees for maintaining and defending dissolution, custody, and child support proceedings.
The Supreme Court of Montana has set forth three factors to consider in awarding attorney fees. An award of attorney fees must be based on necessity, they must be reasonable, and they must be based on competent evidence. In re Marriage of Pfeifer, 282 M 461, 938 P2d 684 (1997).
In In re Marriage of Schmieding, the husband appealed to the Montana Supreme Court regarding the necessity question after the district court awarded the wife her attorney fees from the dissolution action.
The wife had been primarily a stay-at-home mom. She had helped her husband in his dental practice as a receptionist in Florida, before moving to Montana. Since living in Montana, she had worked part-time at Big Sky Ski Resort as a ski patroller, at a rate of $7.80 per hour. The district court determined that initially, after their divorce, the wife would be earning minimum wages, as she had never used her college degree previously for any type of employment.
The husband had a dental degree from the University of Florida, and prior to moving to Montana, he had earned between between $220,000.00 and $257,576.00 per year in his dental practice.
The parties had investment accounts, IRAs, properties, stocks and many other things worth value that were accounted for in their marital estate.
The District Court divided their marital estate, and determined that the husband would have a monthly income of $7,625.00 from his practice and investments, as well as $3,896.55 from the sale of the Florida practice which gave him $11,521.55 per month. He claimed monthly personal expenses of $5,533.00. He was also ordered maintenance to his wife of $3,000.00 per month and child support of $2,539.00.
The District Court then determined that, based on the financial conditions of the parties, husband should reimburse wife for her reasonable attorney fees and costs incurred, totaling $26,561.88.
The husband then appealed the order to pay for his ex-wife's attorney fees and costs.
The husband argued that his ex-wife had been awarded sufficient marital assets to pay her own attorney fees.
The Supreme Court affirmed the award of attorney fees for the wife, by noting three things for the question of necessity:
1) the requesting party must be able to show an inability to pay their attorney fees (the wife in this case)
2) a District Court should consider the other party's ability to pay an award of attorney fees (the husband in this case)
3) a District Court should consider the relative financial positions of the parties in deciding necessity.
The husband argued that the District Court should have set forth in more detail its reasons why he should pay.
The Supreme Court upheld the attorney fees for the wife, holding that the District Court did not abuse its discretion in awarding these fees, because the husband's financial situation was much better than his wife's, that he earned five times more than his wife, and that he had the ability to acquire substantial assets while the wife did not. Furthermore, the husband would no longer have to pay maintenance once the parties homes sold and they split the proceeds.
The disparity between the parties financial abilities allowed the Supreme Court to uphold the District Court's decision to pay the attorney fees.
Again, keep in mind that all cases are different. Every case depends on the facts.
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