Custody case sheds light on counsel fees statute

Custody and support matters are almost never cut and dry – and even if a case seems sealed up one year, it could resurface the next. As life changes, so too does the state of a custody or support matter. Sometimes, it can get out of hand with constant need to be drawn into litigation over new petitions. That is why there was a recent change to the statutes regarding payment of counsel fees. This recent case discussed how that statute is applied when one party wants repayment of counsel fees for custody actions.


This recent case (Chen v. Saidi, 2014 Pa. Super. 190, September 2, 2014) is the first case discussing the statute and award of counsel fees; as such, it is a case of first impression for the court to review and interpret the statute in accordance with the facts of the case. Some background in Chen v. Saidi is that there were several issues other than custody; however, the case is an appeal of the trial court’s decision to award attorney’s fees based on the statute. Among other filings in the course of the parties' divorce, Saidi had filed seven custody petitions which were the focus of the case.


First, the statute (23 Pa. C.S. Section 5339) was part of the Child Custody Act of 2011 which was intended to reduce repetitive filings in custody actions. It states that a court may award reasonable interim or final counsel fees, costs and expenses to a party if the court finds that the conduct of another party was obdurate, vexatious, repetitive or in bad faith. The idea is that constantly revisiting custody agreements is not in the best interests of the child and should not be taken lightly. When an action is brought in bad faith, the responding party may be entitled to attorneys fees for whatever happened as a result of the filing.


Ultimately, the Superior Court reversed the trial court’s decision to award attorney’s fees. Since this is a case of first impression, the court relied upon the interpretation of 42 Pa. C.S. Section 2503, “A suit is vexatious, such as would support an award of counsel fees, if it is brought without legal or factual grounds and if the action served the sole purpose of causing annoyance." The court focused on the meaning of the word, “repetitive” found in Section 5339 to make the comparison.


By comparing the definition and case law regarding Section 2503, as well as the merit and content of Saidi’s petitions, the court found that the filings were not intended to be malicious or wasteful. Rather, some were actually settled by agreement and others were based on valid needs for custody changes. Regardless of whether or not those individual petitions were successful did not affect whether or not they were seen as frivolous. Of greatest importance was that it could not be proven that the filings were to the detriment of the best interests of the child.


This case is interesting for Bucks County divorce attorneys to keep in mind when handling their custody cases. Just because it seems exhausting and wasteful to the client, does not always appear that way in the eyes of the court. Even if several failed attempts to change a custody agreement begin to rack up costs, the fees may not always be “returned” to the responding party.


A solid custody agreement is certainly the best place to start to prevent modifications over time. Call our office to have a Bucks County custody lawyer review or draft your custody agreement, (215) 693-6191.