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Protracted or contentious litigation in child support cases can lead to an award of attorney fees pursuant to the Domestic Relations Code, but posing a reasonable defense to a support action is not an unreasonable impediment in ruling on support in determining whether a party is responsible for the other party’s attorney fees, the Pennsylvania Supreme Court has ruled in a case of first impression. The unanimous high court’s decision in Bowser v. Blom affirmed a Superior Court order and addressed the appropriate factors for a trial court to consider when ruling on a request for counsel fees pursuant to � 4351(a) of the Domestic Relations Code. “The statute does not command an award of counsel fees in any instance, nor does it identify relative need as the exclusive, much less controlling, factor in determining when an award is appropriate,” Justice Ronald D. Castille wrote for the court. In Bowser, Lisa M. Bowser, the appellant, and Johannes V. Blom, the appellee, had a daughter, E.A.B., in September 1997. Bowser and Blom never married. Blom, a doctor in the Army, provided financially for E.A.B. both while Bowser was pregnant and after E.A.B.’s birth. Bowser filed a complaint in July 1998 to establish paternity and support to entitle E.A.B. to medical insurance and military benefits through Blom. Two weeks after Bowser filed the complaint, Blom acknowledged that he was the biological father of E.A.B. The parties then entered into a verbal support agreement where Blom agreed to pay Bowser $800 per month in child support. Because the parties reached an agreement, the trial court subsequently dismissed Bowser’s action. In December 1999, Blom filed a petition for special relief to initiate a new support case, arguing that Bowser breached the verbal agreement for support by attempting to secure Blom’s basic allowance for quarters, a sum given to active duty military personnel who do not live on post or in military housing. Bowser responded by filing a support complaint seeking a child support order and counsel fees. In January 2000, Blom and Bowser appeared before a hearing officer, where Blom presented evidence that he paid Bowser more than the agreed-upon $800 a month, including access to a car titled to his name and for which he made payments of approximately $600 per month. Blom argued that the car payment should therefore be included as part of his child support obligation, but the hearing officer rejected the claim and fixed Blom’s monthly support obligation to $800. The hearing officer denied Bowser’s request for counsel fees. Bowser argued that she was entitled to legal fees because Blom would not agree to give his basic allowance for quarters to her, thus necessitating the filing of a complaint for support. Both parties filed exceptions to the hearing officer’s award, which the trial court dismissed. The court then entered a final order in April 2000 requiring Blom to pay Bowser the $800 a month awarded by the hearing officer. Bowser then appealed the decision to the Superior Court, which, in a panel opinion, affirmed the support order. The Superior Court found that there was no case law interpreting � 4351(a), which authorizes a court to award attorney fees in paternity or support cases to the prevailing obligee. In part, the section reads: “If an obligee prevails in a proceeding to establish paternity or to obtain a support order, the court may assess against the obligor filing fees, reasonable attorney fees and necessary travel and other reasonable costs and expenses incurred by the obligee and the obligee’s witness.” The Superior Court reasoned that the statute did not mandate an award in every case that resulted in an order of support The Pennsylvania Supreme Court agreed. “In a case such as this where there was no denial of paternity or support, it would be difficult to say that the obligee ‘prevailed’ in the proceedings,” Castille wrote. An award of counsel fees under � 4351(a), the Superior Court determined, would be appropriate in cases when one party’s conduct unreasonably impedes the timely award of support to the child. On appeal to the state supreme court, Bowser argued that the lower courts erred by considering the conduct of either party as being relevant to determining the appropriateness of an award of fees. If no provision were made for recovering the cost of attorney fees, Bowser argued, the cost of litigation could be borne by the child. Allocation of costs on the basis of need in obtaining a support order, she said, is necessary to ensure that a child receives benefits to which he or she is entitled. Attorney fees, she contended, advance an obligor’s own interests and can therefore contradict the interests of the child. Blom countered that Bowser has neither demonstrated that the lower courts abused their discretion, nor should he be penalized for contesting her support complaint. The state supreme court determined that the plain meaning of the statute clearly states that even when the obligee prevails, counsel fees are not automatic and are instead determined by the discretion of the court. According to Bowser’s standard, the court reasoned, an award of counsel fees would be required in virtually every successful child support action. “While we acknowledge that appellant’s proposed standard would provide certainty, and reflects one self-contained and policy-based view of the question, it is not the policy or view that is commanded, or even suggested by, the actual discretionary languages of Section 4351(a),” Castille wrote. The court then stated a standard for the lower court’s discretion, and determined that unreasonable conduct by the obligor would warrant an award of counsel fees. “Mounting a fair and reasonable defense in a child support action does not rise to the level of obstreperous or obstinate behavior and cannot be interpreted as unreasonably impeding the determination of paternity or an appropriate support order,” Castille said. “In this case, appellant does not seriously impute such conduct to appellee.” The high court included language in its opinion to give leeway for trial judges to award attorney fees in appropriate cases. Castille wrote that obstreperous or unreasonable conduct is not the only ground for awarding attorney fees. “The very failure of the General Assembly to specifically address the circumstances which would warrant an award of counsel fees demonstrates that it contemplated some degree of flexibility in application. … It must be the totality of relevant circumstances that informs the determination of whether to award counsel fees,” Castille said. Relevant circumstances, the court ruled, include relative financial positions of the parties, and the prior relationship between the parties, including prior litigation and the conduct of the obligee. In the case at bar, Castille said, the trial court did not abuse its discretion in denying Bowser counsel fees because Blom accepted his paternity responsibility. And, Bowser filed suit, despite the verbal agreement and despite the fact that Blom had paid support according to the agreement. “Bearing in mind appellee’s voluntary payment of an appropriate amount of child support from the time of the child’s birth, it would be fundamentally unfair to saddle him with appellant’s counsel fees, which were necessitated by her own conduct,” the court said.

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