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COA upholds order man pay ex-wife’s appellate attorney fees

November 13, 2014

The Indiana Court of Appeals rejected a man’s claim that the same standard for awarding attorney fees should apply regardless of the forum. The judges affirmed the order that he pay his ex-wife’s appellate attorney fees because he is in a better position than she is to pay them.

In Matthew Townsend v. Lyvonda Townsend, 31A01-1405-DR-207, Matthew Townsend appealed the Harrison Circuit Judge’s decision to grant Lyvonda Townsend’s motion for her ex-husband to pay her appellate attorney fees, relying on I.C. 31-15-10-1. The two divorced in 2013 and she was awarded sole custody of their son. Mathew Townsend appealed that order, and the COA affirmed.

Lyvonda Townsend asked for the appellate attorney fees based on the parties’ economic circumstances. She has four children, including the one she shares with Matthew Townsend, makes around $150 a week cleaning, and does not have a high school education. Matthew Townsend is in school studying geology, lives with his mother, and took out loans to pay for school. He works a seasonal job.

He argued that Indiana Appellate Rule 66(E) should be applied to determine if an award of attorney fees is warranted, regardless of whether the appellate attorney fees are requested in a trial court or on appeal.

“Although it is not entirely clear what standard Father would apply, he seems to suggest that the trial court should consider Appellate Rule 66(E) in addition to the other well-established factors when deciding whether to award appellate attorney fees pursuant to Indiana Code Section 31-15-10-1,” Judge Michael Barnes wrote. “Father’s argument that the same Standard should apply regardless of the forum misses the mark — it is the legal basis for the request, not the forum, that determines which standard applies.”

Michael Townsend essentially asked the COA to reweigh the evidence the trial court used to order him to pay his ex-wife’s attorney fees, something the appeals court cannot do. Barnes wrote that the COA could not conclude the decision was clearly against the logic and effect of the facts and circumstances before the trial court.
 

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