The Court of Appeals in Khawam v. Wolfe decided on August 22, 2019, delineated all legal theories available to recover attorney’s fees in a child custody and by extension in relating family matters.

Here, Wolfe moved to recover attorney’s fees ($700K) against Khawam for a rather protracted and vexatious litigation and under three theories:

• Common law theory of “necessaries” which permits an award of attorney’s fees in a child-custody case if the court finds that engaging an attorney was necessary to protect the interests of the child;
• The “bad faith” exception which permits recovering fees against a party who has acted in bad faith, either vexatious, wanton, or for oppressive reasons connected to the litigation; and
• Statutory provision authorizing payment of “suit money,” including attorney’s fees, in divorce proceedings.

The District of Columbia follows the “American Rule” regarding attorney’s fees which essentially provides that each party is responsible for its own attorney’s fees.

Under the necessaries doctrine though, the trial court has the authority to make an attorney’s fee award as reimbursement for necessaries for the minor child and when engagement of counsel is in effect is necessary to protect the interests and welfare of the child.

In short, necessaries doctrine authorizes the trial court to grant attorney’s fees where the court finds that retaining counsel was necessary to protect the interests of the children.

The trial court here found that retention of counsel by the father-Wolfe was necessary to protect the best interests of the child and that an award under the necessaries doctrine was legally permissible.  The Court of Appeals agreed and affirmed on that point.

However, the Court determined that the trial court may have used erroneous factors to assess the amount of fees to be awarded and not permissible under the doctrine.

A trial court must undertake a two step inquiry when awarding fees under the necessaries doctrine:

1) Whether to award a fee; and

2) The court must set the amount of the fee considering following factors:

• The quality and nature of the services performed,
• The necessity for the services,
• The results obtained from the services, and
• The financial ability of the spouse being ordered to pay.

That is, whether the litigation has been burdensome to the party seeking the award or the motivation and behavior of the litigating parties all are factors only used in coming to a determination of whether any award shall be made and not a factor in determining the actual amount.

Specifically, the trial court here had erroneously reasoned that amount awarded was directly correlated  with the extraordinary financial burden Khawam had caused as well as her extraordinary conduct — both factors not relevant in the assessment of the amount to be awarded.

Thus, the Court of Appeals reversed and remanded on the amount awarded  ($350k) and not the award of the attorney’s fee alone as the court deemed the award itself falls under the necessaries doctrine.

This case provides legal authority to seek recovery of attorney’s fees by a showing that retaining counsel and defending against the litigation was necessary to protect the interests and welfare of the child.  The ruling appears to have carve out another legal doctrine to recover fees.

Refer to our WASHINGTON DC FAMILY LAWYER page for more details on the subject.