How Does the Family Court Decide Whether to Award Attorney’s Fees?

South Carolina statutes on domestic relations authority the family court to award attorney’s fees.  Section 20-3-130 (H) of the South Carolina Code (Supp. 2009) authorizes the family court to order payment of litigation expenses to either party in a divorce action. Section 63-3-530 (2 & 38) authorizes the family court to award attorney’s fees in all other domestic litigation.

The family court must go through a two step process in deciding whether to award fees and how much fees to award.  The first step is determining whether a party is entitled to fees.  The test for this is set forth in E.D.M. v. T.A.M., 307 S.C. 471, 476-77, 415 S.E.2d 812, 816 (1992).  In deciding whether to award attorney’s fees and costs the family court must consider: (1) each party’s ability to pay his or her own fee; (2) the beneficial results obtained by the attorney; (3) the parties’ respective financial conditions; and (4) the effect of the fee on each party’s standard of living.  Where a party’s uncooperative conduct in discovery and litigation increases the amount of the other party’s fees and costs, the court can use this as an additional basis to award the other party fees and costs. Spreeuw v. Barker, 385 S.C. 45, 72-73, 682 S.E.2d 843 (Ct. App. 2009).

“A party’s fault in causing a divorce, however, is not a factor to be considered when awarding attorney’s fees.”  Doe v. Doe, 370 S.C. 206, 219, 634 S.E.2d 51, 58 (Ct.App. 2006)

Once the family court has decided that an award of fees to one party is justified, it looks to the factors set forth in Glasscock v. Glasscock, 304 S.C. 158, 161, 403 S.E.2d 313, 315 (1991) to determine the amount of fee that should be awarded.  Those factors are: (1) the nature, extent, and difficulty of the case; (2) the time necessarily devoted to the case; (3) professional standing of counsel; (4) contingency of compensation; (5) beneficial results obtained; and (6) customary legal fees for similar services.

In contempt actions, a different standard applies in awarding fees to the party establishing contempt.  In such situations, attorney’s fees may be awarded under a theory of “constructive contempt.” “Compensatory contempt is money awarded to a party who is injured by a contemnor’s action to restore the party to his original position.” Whetstone v. Whetstone, 309 S.C. 227. 420 S.E. 2d 877 (Ct. App. 1992).  Factors that would be relevant in other situations such, such as each party’s ability to pay his or her own fee; the parties’ respective financial conditions; and the effect of the fee on each party’s standard of living are not relevant when awarding fees under a constructive contempt theory.

Courts, by exercising their contempt power, can award attorney’s fees under a compensatory contempt theory. Harris-Jenkins v. Nissan Car Mart, Inc., 348 S.C. 171, 178-79, 557 S.E.2d 708, 711-12 (Ct.App.2001). Compensatory contempt seeks to reimburse the party for the costs it incurs in forcing the non-complying party to obey the court’s orders. “In a civil contempt proceeding, a contemnor may be required to reimburse a complainant for the costs he incurred in enforcing the court’s prior order, including reasonable attorney’s fees. The award of attorney’s fees is not a punishment but an indemnification to the party who instituted the contempt proceeding.” Poston v. Poston, 331 S.C. 106, 114, 502 S.E.2d 86, 90 (1998); Lindsay v. Lindsay, 328 S.C. 329, 345, 491 S.E.2d 583, 592 (Ct.App. 1997) (“A compensatory contempt award may include attorney fees.”); Curlee v. Howie, 277 S.C. 377, 386-87, 287 S.E.2d 915, 919-20 (1982) (“Compensatory contempt is a money award for the [Wife] when the [Husband] has injured the [Wife] by violating a previous court order…. Included in the actual loss are the costs of defending and enforcing the court’s order, including litigation costs and attorney’s fees.”). The court is not required to provide the contemnor with an opportunity to purge himself of these attorney’s fees in order to hold him in civil contempt. Floyd v. Floyd, 365 S.C. 56, 76, 615 S.E.2d 465, 476 (Ct.App.2005) (citing Poston, 331 S.C. at 111-15, 502 S.E.2d at 88-91). “[T]he award of attorney’s fees is not part of the punishment; instead, this award is made to indemnify the party for expenses incurred in seeking enforcement of the court’s order.” Id. at 77, 615 S.E.2d at 476 (quoting Poston, 331 S.C. at 111-15, 502 S.E.2d at 88-91).