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Windham v. Windham

Supreme Court of Wyoming

April 28, 2015

BRIAN WINDHAM, Appellant (Plaintiff),
v.
BRANDI LEE WINDHAM, Appellee (Defendant)

Page 837

Appeal from the District Court of Big Horn County. The Honorable Robert E. Skar, Judge.

Representing Appellant: Christopher J. King of Worrall & Greear, P.C., Worland, Wyoming.

Representing Appellee: Rennie Polidora, Wyoming Coalition Against Domestic Violence and Sexual Assault, Laramie, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.

OPINION

FOX, Justice.

Page 838

[¶1] In this custody, visitation, and child support modification action, the district court granted Brian Windham sole custody, modified the visitation schedule, and required Brandi Windham to pay child support for the parties' three minor children, in an amount less than the statutory presumptive amount. The district court awarded expenses, pursuant to W.R.C.P. 37(a)(4)(A), incurred by Ms. Windham's pro bono attorney in her pursuit of discovery responses. The district court denied Mr. Windham's W.R.C.P. 11 motion for sanctions against Ms. Windham for seeking attorney's fees and expenses for the discovery violations. Mr. Windham appeals the court's child support deviation, denial of his Rule 11 motion, and award of expenses to Ms. Windham's attorney. We affirm.

ISSUES

[¶2] 1. Did the district court abuse its discretion when it deviated from Ms. Windham's presumptive child support obligation?

2. Did the district court err as a matter of law when it authorized the award of expenses under W.R.C.P. 37 that were not incurred by Ms. Windham?

3. Did the district court abuse its discretion when it denied Mr. Windham's Rule 11 motion for sanctions?

FACTS

[¶3] The parties were divorced in April 2012, in Big Horn County, Wyoming. The original divorce decree provided for joint legal and physical custody of the parties' three minor children. In February 2013, Mr. Windham filed a Petition to Modify Custody, Visitation and Support.

[¶4] Ms. Windham, whose attorney represented her pro bono,[1] was unsuccessful in her attempts to obtain discovery responses from Mr. Windham, and therefore filed a Motion to Compel Responses to Combined Discovery Requests. The district court ordered Mr. Windham to respond to the discovery requests and conditionally granted Ms. Windham's request for attorney's fees incurred in pursuing the motion to compel, explaining:

[T]he Court will want some authority . . . to grant legal fees in light of the fact that your client has not incurred that expense. . . . So at this point I am going to request that your fees and costs be reduced

Page 839

to appropriate affidavits with the necessary affidavits on the reasonableness of fees, but I want some legal authority for me to do it when your client hasn't had to pay for it.
. . . .
And then if necessary we'll hold a telephonic hearing to determine the issue of legal fees.

[¶5] Ms. Windham submitted her Argument in Support of Awarding Attorney's Fees to Nonprofit Civil Legal Services Providers, with attached Affidavit of Attorney's Fees. The affidavit stated in pertinent part:

2. As a nonprofit I do not charge an hourly rate for legal services. I am allowed to receive attorney's fees in qualified actions, such as this Motion to Compel. Any fees which may be awarded are placed in a separate litigation account. . . .
3. The rate that is used to calculate fees for the type of services provided in this case is $100.00 per hour, which is reasonable and ...

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