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How To Recover Appellate Attorney’s Fees In Domestic Cases

Under the law in the United States, including Indiana, the American Rule is followed regarding legal fees. The American Rule directs, absent agreement or statute or other authority, each side pays his or her own legal fees.1

Nevertheless, within divorce and paternity matters, there are a number of provisions that allow a trial court to award attorneys fees where there is a financial imbalance between the parties, particularly where children are involved. This is likely due to the inherent policy that such litigation is necessary for the court to do its job and determine a child’s best interests.

With all appeals, a bad faith or frivolous appeal may subject the party to appellate sanctions which may include attorney’s fees.2 What has been undeveloped to this point is that, absent a bad faith appeal, whether a domestic litigant can seek legal fees for the appeal in the trial court before or after appeal based on the domestic statues.

The Indiana Court of Appeals, impliedly balancing the right to appeal and chilling effect on appeals where a trial court can order appellate fees, has decided Indiana law allows a domestic court to award appellate fees under the dissolution and paternity statutes.3 How this will play out in the future remains unclear.

  1. Kikkert v. Krumm, 474 N.E.2d 503, 504-05 (Ind.1985).
  2. Ind.App. Rule 66(E).
  3. Townsend v. Townsend, ___ N.E.3d ___ (2014, No. 31A01-1405-DR-207).
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