All in the Family: Recent fee claim, UCCJEA and HRO reversals.

Byline: Jason Brown and Cynthia Brown

Aside from the slew of reversals involving child protection cases over the last month, the Minnesota Court of Appeals was busy dealing with other issues more pertinent to family court practitioners.

Need-based fee clarification

In Luong v. Ho, Husband and Wife divorced in 2018 after a 19-year marriage. Husband earned $3,271 in gross monthly income. Wife's medical condition prevented her from working. Wife's monthly expenses totaled $2,946. Husband's monthly expenses totaled $1,370.

The District Court ordered Husband to pay Wife $973 in monthly child support and $1,300 in permanent spousal maintenance. The order left each with a monthly cash deficit.

Wife was awarded the marital residence. The District Court divided the remaining marital property equally and ordered Wife to pay Husband a property equalizer of $130,000.

Wife sought an award of need-based attorney fees. Neither party had cash or income sufficient to cover the fees. Still, the District Court deducted $24,450 from the property equalizer owed to Husband as fees for Wife.

Husband appealed.

The Court of Appeals determined that the District Court erred in finding that Husband had the ability to pay Wife's fees. Pursuant to Minn. Stat. sec. 518.14, the court "shall" award attorney-based fees but only if it finds that the party from whom the fees are sought "has the means to pay them."

Judge Kevin Ross, writing for the majority, opined that "the fee award here resulted from an irreconcilable application of the controlling phrase 'the means to pay.'"

He suggested that the District Court's calculation of income and expenses, inclusive of spousal maintenance and child support, resulted in each party being left with a substantial monthly deficit rendering both parties unable to pay fees of the other from their income.

The District Court also reasoned that "because [Husband] would receive cash equalizer payments from [Wife], [H]usband had the means to pay while [Wife] did not.

Ross took issue with that the approach, noting that equalizer payments are simply the marital property to which Husband is entitled to as an offset to the value of marital property to which Wife is entitled to. He suggested that the District Court "overlooked the fact that [Husband and Wife] will have the same means to pay the same amount"

In her dissent, Judge Denise Reilly found no abuse of discretion on the part of the District Court. She opined that the statutory elements of...