ATTORNEY FEES GRANTED: NO REQUIREMENT THAT PARTY PREVAIL

Mom and Dad have an autistic child. Mom moves to Washington. They stipulate to a visitation schedule between Dad in Montana and Mom in Washington. Mom is primary residential parent. They divorce on February 25, 2012. They make some informal changes to the plan.

7 months later, on September 26, 2012, Dad files motion to modify the parenting plan and to make himself primary residential parent claiming Mom had failed to place child in speech therapy. Mom responds: 1) change jurisdiction to Washington; 2) modify the plan to say what they had been doing informally but leaving primary residential care with her; and 3) she requests reimbursement of her attorney fees.

7 months after that, on April 26, 2013 the trial court conducts its hearing. Dad partly withdraws his motion for primary switch but requests more speech therapy for child and makeup visitations. Trial court takes a recess because it is apparent Dad has not talked about this with Mom. They confer, but are unable to agree as to all issues.

The trial court 1) denied Mom's change of jurisdiction to Washington; 2) granted Dad's request to require Mom to set up makeup visits for Dad; 3) denied Dad's request for additional speech therapy; and 4) granted Mom's request for attorney fee reimbursement. The trial court ultimately awards Mom $10,359 after separate hearing on reasonableness. Mom's attorney presented expert testimony from another family lawyer that these fees were reasonable.

Dad appeals. Affirmed.

Dad claimed that each party had won some and lost some, so there was no "prevailing" or winning party. He argued that Section 40-4-110 MCA refers to "marital" resources and that it did not apply here. The Supreme Court found that 40-4-110 applies to all of the various chapters of Title 40. The Court noted that previous cases had denied attorney fee awards when there was no prevailing party, per se, but those cases involved the interpretation of settlement agreement paragraphs that specifically referenced the "prevailing party," and were not based on an interpretation of 40-4-110. Here's the critical quotation:

"¶13 It is also important to note that § 40-4-110 does not require a party to prevail to receive attorney's fees. Under § 40-4-110, "attorney fees are based on the respective financial resources of the parties and not based on which party prevailed." In re Marriage of Brownell, 263 Mont. at 85, 865 P.2d at 311. Instead, the district court judge examines what is reasonable in light of each party's circumstances. Awarding Crissy attorney's fees was not unreasonable when Jim changed his position on his motion after eight months and caused the parties to expend considerable expenses to resolve an issue that may have been resolved through direct discussion or mediation."

Weibert v. Weibert 2015 MT 29