When the new Custody Act was passed in 2011, practitioners welcomed the statute authorizing the award of counsel fees, costs and expenses, as the statute provides that a court may award reasonable interim or final counsel fees, costs and expenses to a party if the court finds that the conduct of another party was obdurate, vexatious, repetitive or in bad faith. This new counsel fees statute, 23 Pa. C.S. Section 5339, was hoped to be the tool to defend against repeat filers in custody actions. Many believe that repeated custody litigation negatively impacts the best interest of the child. Section 5339 had not been analyzed by the appellate courts of Pennsylvania until the recent case of Chen v. Saidi, 2014 Pa. Super. 190 (September 2, 2014).

The Chen case pertains to a number of issues, including an appeal regarding an equitable distribution award. However, for purposes of this article, the portion of the appeal pertaining to the award of counsel fees pursuant to Section 5339 in the child custody matter will be addressed.

According to the opinion, Jeffar Saidi filed seven custody petitions over the course of seven years. Relying on Section 5339, the trial court entered an attorney fees award against Saidi. On appeal, Saidi argued that the trial court erred and abused its discretion in awarding Dong Yuan Chen an award of counsel fees.

The state Superior Court indicated that: "No case law exists regarding interpretation or construction of this statute." The court further highlights that no legislative comment exists with regard to Section 5339. The Superior Court focused on 42 Pa. C.S. Section 2503 of the Judicial Code, "which allows an award of counsel fees" with essentially identical language to Section 5339 but for the fact that Section 5339 contains the additional word "repetitive." In analyzing Section 5339, the Superior Court stated: "We must presume that the legislature did not intend any language of a statute to exist as mere surplusage."

According to the opinion, because this is a matter of first impression, the Superior Court looked to case law interpreting 42 Pa. C.S. Section 2503 for guidance. Pursuant to existing case law analyzing Section 2503, "A suit is vexatious, such as would support an award of counsel fees, if it is brought without legal or factual grounds and if the action served the sole purpose of causing annoyance." The Superior Court further highlighted that: "Section 2503(9) serves not to punish all those who initiate legal actions that are not ultimately successful, or which may seek to develop novel theories in the law, as such a rule would have a chilling effect on the right to bring suit for real legal harm suffered. Rather, the statute focuses attention on the conduct of the party from whom counsel fees are sought and on the relative merits of that party's claims."

According to the opinion, the trial court focused on the word "repetitive" in Section 5339 and "relied on a definition from Merriam-Webster's Dictionary: 'repeated many times in a way that is unpleasant.'" The trial court "opined that it was the intent of the legislature 'to award counsel fees under the new custody statute to deter repetitive filings that may affect the best interest of a child and require that the child constantly be placed in the middle of continued custody litigation.'"

In the opinion, the Superior Court analyzed the seven petitions filed by Saidi. The petitions ranged from a modification petition seeking primary physical custody, a petition seeking to modify the school holiday and summer break schedule, to a petition seeking to travel internationally with the child. The Superior Court highlighted the fact that one of the petitions was resolved by agreement and another petition was granted in part. Regardless of the fact that a number of the petitions sought to modify the custody schedule, the Superior Court found that each petition filed by Saidi sought "distinct relief pertaining to a variety of legitimate issues that typically arise in a custody matter." Because of this, the Superior Court held: "We cannot conclude the husband's actions rose to the level of 'repetitive' within the meaning of Section 5339." The Superior Court further stated that it could not "say that each of the petitions was without relative merit." Lastly, the Superior Court stated, "The trial court failed to explain how the filing of seven petitions to modify custody in the span of the seven-year proceeding legitimately affected the well-being of the child or how the filings in any way altered the status quo."

Therefore, the Superior Court reversed the trial court's award of counsel fees and concluded that such an award under Section 5339 was unwarranted and an abuse of discretion. Because the application of Section 5339 by the Superior Court in the Chen case was a case of first impression, it is important for the family law practitioner to be mindful of same. The Chen case sends a message that the mere fact repetitive filings exist in a case does not automatically warrant an award of counsel fees just because of the existence of the newly enacted Section 5339. However, the Chen case is clearly a fact-specific case and if the situation arises where a litigant repeatedly files actions that are not seeking "distinct relief pertaining to a variety of legitimate issues that typically arise in a custody matter," an award of attorney fees may be warranted.

Counsel Fees Statute Analyzed by Court in Child Custody Case.pdf

Michael E. Bertin is a partner at the law firm of Obermayer Rebmann Maxwell & Hippel. Bertin is co-author of the book "Pennsylvania Child Custody Law, Practice, and Procedure." Bertin is the immediate past chair of the family law section of the Philadelphia Bar Association, co-chair of its custody committee, and treasurer of the family law section of the Pennsylvania Bar Association and a member of its executive committee.

The information contained in this publication should not be construed as legal advice, is not a substitute for legal counsel, and should not be relied on as such. For legal advice or answers to specific questions, please contact one of our attorneys.

Reprinted with permission from the November 11, 2014 edition of The Legal Intelligencer © 2014 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 347-227-3382, reprints@alm.com or visit www.almreprints.com. # 201-11-14-06