440 P.3d 57
Okla.2019Background
- Parents (Angela and Matthew Antini) involved in interstate custody dispute after Matthew took their children from Maine to Oklahoma in 2014. New York divorce decree awarded Angela physical custody; Maine later exercised jurisdiction and ordered return of children.
- Matthew filed in Oklahoma to register the New York decree and seek custody; Angela filed a habeas petition and special appearance contesting Oklahoma jurisdiction.
- Oklahoma district court dismissed Matthew's registration and found Oklahoma lacked jurisdiction under the UCCJEA; Maine retained exclusive jurisdiction and granted Angela custody.
- Angela, represented by Legal Aid Services of Oklahoma (a pro bono/publicly funded provider), moved in Oklahoma for costs and attorney fees under Okla. Stat. tit. 43, § 551-312 (UCCJEA). The trial court denied attorney fees on the ground that fees are recoverable only when the prevailing party personally retained and paid counsel; it also denied transcription costs.
- The Oklahoma Court of Civil Appeals affirmed on attorney fees but reversed as to transcription costs. The Supreme Court granted certiorari.
Issues
| Issue | Plaintiff's Argument (Antini) | Defendant's Argument (Matthew) | Held |
|---|---|---|---|
| Whether § 551-312 permits awarding attorney fees to prevailing parties whose counsel were paid by a legal aid/public fund (i.e., pro bono representation) | § 551-312’s phrase “incurred by or on behalf of the party” includes fees incurred by counsel acting on the party’s behalf, regardless of who paid; denying fees to pro bono counsel undermines access to courts | Fees recoverable only if the party personally retained and paid counsel; statute should not be read to reimburse third-party/publicly funded counsel | The Court held § 551-312 mandates awarding reasonable attorney fees to prevailing parties even when legal services were rendered at no cost to the client; “on behalf of” covers pro bono/publicly-funded counsel |
| Whether transcription costs for the Maine proceedings are recoverable under § 551-312 | Transcription costs were necessary and reasonable for the Oklahoma court’s jurisdictional decision and thus recoverable | Trial court should decline awarding transcript costs, leaving such taxability to Maine | The Court held transcription costs were necessary and recoverable under § 551-312 and remanded for award |
| Whether trial court has discretion to deny fees under § 551-312 | Section uses mandatory “shall” and lists recoverable categories; burden shifts to non-moving party to show award would be “clearly inappropriate” | The statute should not be read to automatically require fees in all circumstances; some discretion should remain | Court concluded “shall” creates a mandatory right to fees and costs for prevailing parties unless the opponent shows an award would be clearly inappropriate |
| Whether reading an exception for pro bono counsel into the statute is appropriate | Legislative silence on exceptions means no carve-out for pro bono; courts must not create exceptions not written by Legislature | Statute ambiguous; absence of explicit language about third-party-paid counsel supports limiting recovery | Court refused to read such an exception into the statute and relied on plain text and legislative intent to allow fee awards to pro bono counsel |
Key Cases Cited
- Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (U.S. 2001) (definition of “prevailing party”)
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (fee awards should not be reduced because counsel are nonprofit or pro bono)
- Martinez v. Roscoe, 100 F.3d 121 (10th Cir. 1996) (no reason to distinguish attorneys paid by party vs. by public funds)
- Cuellar v. Joyce, 603 F.3d 1142 (9th Cir. 2010) (award of fees under ICARA to prevailing party represented pro bono justified to deter frivolous or obstructive conduct)
- Miller v. Wilfong, 119 P.3d 727 (Nev. 2005) (policy reasons support awarding fees to pro bono counsel in family law disputes)
- Vazquez v. Campbell, 146 P.3d 1 (Alaska 2006) (under UCCJEA, clients receiving free legal services may recover attorney’s fees)
- Hamilton v. Telex Corp., 625 P.2d 106 (Okla. 1981) (pro se prevailing attorneys may recover fees)