Summary 2009 WY 124

Summary of Decision issued October 9, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Weiss v. Weiss

Citation: 2009 WY 124

Docket Number: S-09-0030; S-09-0068

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Gary A. Weiss: L. Kimberly Weiss of Law Offices of L. Kimberly Weiss, Wilson, Wyoming.

Representing Kathryn B. Weiss: Kenneth S. Cohen of Cohen Law Office, PC; and Heather Noble of Jackson, Wyoming.

Facts/Discussion: These combined appeals arise out of post-divorce proceedings. In S-09-0030, Father appeals the district court’s order that he pay Mother $135,000 for the attorneys’ fees and costs she incurred in defending his motion to modify custody and in S-09-0068, Mother appeals the district court’s order changing child custody in a subsequent proceeding.
Award of attorneys’ fees: Although Wyoming generally subscribes to the American rule regarding the recovery of attorney’s fees, a prevailing party may be reimbursed for attorney’s fees when provided for by contract or statute. In determining the reasonableness of the fees requested, the trial courts are to follow the federal lodestar test which requires a determination of whether the fee charged represents the product of reasonable hours times a reasonable rate and whether other factors of discretionary application should be considered to adjust the fee. The Court stated the district court’s decision to award Mother her attorneys’ fees and costs was not unreasonable. Mother’s motion was lengthy and detailed and included an affidavit from her attorney detailing the work done, the complexities of the case and the reasonableness of the rate charged. The Court felt the case more nearly resembled Breitenstine rather than Hinckley.
Jurisdiction for child custody: Divorce is purely a statutory process with courts having no authority other than that provided by statue. The limit extends to the court’s power to modify a divorce decree. A party or parent may seek modification of a custody order. No statute authorizes a child or a guardian ad litem to initiate a petition for change of custody. In the instant case, the district court modified custody despite the absence of any petition to modify filed by either party/parent. It was without jurisdiction to do so.

Conclusion: The district court did not abuse its discretion in awarding Mother statutory attorneys’ fees and costs for her defense of Father’s 2006 motion to modify custody. The district court was without jurisdiction to modify custody based upon a report of the guardian ad litem, where no petition to modify had been filed by either party/parent. Because the case involved the custody of children with the imminent potential for a residential relocation, the Court noted that the decision does not prevent the district court from hearing an appropriately filed petition regarding custody.

Affirmed S-09-0030. Remanded S-09-0068.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yk7kcwk .

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