§ 69.06 ATTORNEY FEES AND COSTS

• Jurisdiction: Washington

§ 69.06 ATTORNEY FEES AND COSTS

The general rule is that in the absence of contract, statute, or recognized ground of equity, the court has no authority to award attorney fees. Hamilton v. Huggins, 70 Wn. App. 842, 851, 855 P.2d 1216 (1993) (citing Bowles v. State Dep't of Retirement Sys., 121 Wn.2d 52, 70, 847 P.2d 440 (1993)); State ex rel. Macri v. City of Bremerton, 8 Wn.2d 93, 113-14, 111 P.2d 612 (1941). In an action adjudicating the parties' rights to undistributed property, a basis for attorney fees may be available by contract, statute, or equity.

[1] Separation Agreement

A separation agreement is a contract, and if it provides for attorney fees, in the appropriate circumstances they may be granted. In re Marriage of Rufener, 52 Wn. App. 788, 792, 764 P.2d 655 (1988).

Practice Tip: All separation agreements have hold-harmless agreements, and many have similar provisions requiring the parties to cooperate in implementing the decree. These provisions are insufficient to support an award of attorney fees to the prevailing party in an action to adjudicate the parties' rights to undistributed property. The following provision would form the basis for an award of attorney fees and costs: "In any action to adjudicate the parties' rights to property that is undistributed by this separation agreement, the prevailing party shall recover reasonable costs and attorney fees."

[2] Chapter 26.09 RCW

A partition action may be considered a continuation of the trial court's duty to dispose of all the property of the parties. Even if it is considered an independent action, an award of attorney fees under RCW 26.09.140 is available when it would be manifestly unjust not to award fees. Seals v. Seals, 22 Wn. App. 652, 655, 658, 590 P.2d 1301 (1979) (citing In re Marriage of Firchau, 88 Wn.2d 109, 112-14, 558 P.2d 194 (1977)). In Seals the husband had intentionally and fraudulently concealed assets and responded falsely to discovery requests. The court justified the award of attorney fees based on RCW 26.09.140, but also relied on equitable grounds, which are discussed below.

[3] Partition Statute

RCW 7.52.480 provides for the apportionment of costs in a partition action between the parties, in proportion to their interests. This is a codification of the common-benefit rule. However, there is a common-law exception to the common-benefit rule when the proceedings are adversarial. In that case, there will be no allowance of attorney fees to the adversarial parties...