Attorney Fees Awarded on the Basis of One Party’s Bad Faith Conduct Cannot Be Awarded if the Litigation was Not Entirely Meritless

September 27, 2018

In a case brought by a father in which the court ruled against him and awarded attorney fees, the Court of Appeals reversed saying that the father's case was not meritless and therefore attorney fees should not have been awarded.

¶43 Utah Code section 78B-5-825 provides that a district court “shall award reasonable attorney fees to a prevailing party if the court determines that the action or defense to the action was without merit and not brought or asserted in good faith.” Utah Code Ann. § 78B-5-825(1) (LexisNexis 2012).8 This section requires a court to determine both that the action was without merit and not brought in good faith. ¶44 The court found that the issues Father “brought before this Court clearly did not rise to the level of a petition to change custody” and it therefore concluded that Father’s action lacked merit. Though we agree with the district court that many of the issues Father raised would be more properly brought in a petition for an order to show cause than in a petition to modify custody, we do not agree that Father’s action was entirely meritless. ¶45 Father’s petition to modify the divorce decree alleged several “changes of circumstance” that Father believed merited a change in the parties’ custody arrangement. The court correctly determined that the evidence Father brought in support of this contention did not justify a modification of custody. But Father also alleged Mother had completed a bachelor’s degree since the settlement of the parties’ divorce, which was “a material and substantial change in her ability to earn.” Father also alleged that child support should be modified, albeit pursuant to the “new custody arrangement” Father had proposed. The court’s findings of fact imputed a higher income to Mother. The court also concluded there had been “a substantial and material change regarding child support because [Father’s] income has changed” and it modified the parties’ child-support arrangement. Because the court imputed a higher income to Mother and modified the parties’ child-support obligation, Father’s petition was not entirely meritless.

Erickson v. Erickson, 2018 App 184 (Filed September 27, 2018)

Read the entire case HERE.

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