Townsend v. Townsend, 20 N.E.3d 877 (Ind. Ct. App. 2014) is a reminder that judges, in family law cases, have almost unfettered discretion to award attorney fees – even when neither of the parties has the resources to pay the attorneys. Or perhaps it is a reminder of the infirmities of our current family law system that, too often, impoverishes parents for the benefit of attorneys and, at times, at the expense of children.
In Townsend, the father had previously appealed the trial court’s award of custody of his son’s mother and lost. On the mother’s motion and after hearing, the trial court ordered father to pay mother’s attorney fees and costs in the appeal. The Court of Appeals affirmed the award, stating the legislative purpose of ensuring access to attorneys in dissolution proceedings and the factors that the trial court must consider, such as the resources of the parties, and their ability engage in gainful employment and earn money.
All of which is inherently reasonable except that neither of the parties – the mother or father – had any income to speak of. Mother earned $100 to $150 a week in a cleaning job, and had three children to support. Presumably, although maybe not, she received TANF and other assistance. Father was working toward a bachelor’s degree in geology but still had four to five semesters to complete. He was living with his mother and had borrowed money to pay his own legal fees. Given that wife’s attorney had expended 25.75 hours on the appeal, the trial court had levied a debt of $4,000 to $8,000 on an unemployed person already in debt. The cost of such levies can have a multiplier effect when the levy affects the parties’ ability to meet their other obligations, including child support.
Perhaps attorneys should, like stockbrokers, obtain assurances from prospective clients that they have the resources to play the game before taking them on as clients. Or perhaps the Legislature should consider alternate ways of ensuring that Hoosiers have equal access to the courts, and, on a deeper level, evaluate the wisdom of an adversarial system for dissolving marriages and determining custody issues.