IN RE THE MARRIAGE OF LILLIANA CASTANO CARTER AND JEFFREY WILLIAM CARTER Upon the Petition of LILLIANA CASTANO CARTER, Petitioner-Appellee, And Concerning JEFFREY WILLIAM CARTER, Respondent-Appellant.
from the Iowa District Court for Polk County, Sarah Crane,
William Carter appeals the order awarding Lilliana Castano
Carter attorney fees and costs incurred during the
parties' divorce proceedings.
L. McCormally and Kolby P. Warren of McCormally &
Cosgrove, P.L.L.C., Des Moines, for appellant.
Alexander E. Wonio of Hansen, McClintock & Riley, Des
Moines, for appellee.
Considered by Potterfield, P.J., Doyle, J., and Carr, S.J.
William Carter appeals the order awarding Lilliana Castano
Carter $101, 746.13 in attorney fees and costs incurred
during the parties' divorce proceedings. The decision to
award attorney fees in dissolution cases is within the
discretion of the district court. See In re Marriage of
Francis, 442 N.W.2d 59, 67 (Iowa 1989). We will only
disturb an award of attorney fees if the court abused that
discretion. See id.
contends the district court abused its discretion in awarding
Lilliana attorney fees, advancing several arguments. He
claims Lilliana is not entitled to an award of attorney fees
because "she was ultimately unsuccessful in her
demands" and "protracted the proceedings." He
also claims the parties' respective financial positions
weigh against awarding Lilliana her attorney fees. Finally,
he argues the district court focused solely on his
noncompliance during the discovery process in deciding to
award Lilliana her attorney fees and claims the award was not
fair or reasonable. We disagree.
first reject Jeffrey's claim that Lilliana has no right
to an award of attorney fees because she was
"unsuccessful." Attorney fees are only limited to
the prevailing party in modification proceedings. See In
re Marriage of Johnson, 781 N.W.2d 553, 559-60 (Iowa
2010) (noting Iowa Code section 598.36 (2007) only allows an
award of attorney fees to the prevailing party in a
proceeding seeking modification of a decree). Because this
action involved an original dissolution proceeding rather
than a modification, success is not required.
court may consider a party's conduct to draw out or
frustrate the proceedings in deciding to award attorney fees.
See In re Marriage of Crosby, 699 N.W.2d 255, 259
(Iowa 2005) (considering husband's lack of cooperation in
selling the home and providing discovery in determining
district court acted within its discretion in awarding
wife's attorney fees); In re Marriage of Eilers,
526 N.W.2d 566, 579 (Iowa Ct. App. 1994) (considering
wife's conduct that "precipitated many of the
problems in this case" as a reason to deny her request
for attorney fees); In re Marriage of Dunkerson, 485
N.W.2d 483, 486 (Iowa Ct. App. 1992) (affirming district
court's award of trial attorney fees to wife where
husband's "representations created additional and
unnecessary increases in attorney services"). Jeffrey
claims Lilliana protracted the proceedings. But the district
court found Jeffrey was less than forthcoming about his
finances, which forced Lilliana's attorney and experts to
"wade through financial records" to find
information Jeffrey could have provided. The court properly
considered Jeffrey's conduct, which increased
Lilliana's attorney fees and expenses, in awarding
Lilliana attorney fees.
claims the parties' respective financial positions weigh
against an award of Lilliana's attorney fees. See In
re Marriage of Geil, 509 N.W.2d 738, 743 (Iowa 1993)
(stating an award of attorney fees is "based on the
parties' respective abilities to pay"). In assessing
the parties' respective abilities to pay, we consider
"the financial circumstances and earnings of each."
In re Marriage of Wessels, 542 N.W.2d 486, 491 (Iowa
1995). Jeffrey's financial circumstances were difficult
to determine given his endeavors as a venture capitalist and
his failure to provide information about how many companies
he has an interest in or their true value. As a result, the
district court declined to award Lilliana any portion of his
business interests but stated it would "consider these
business assets in the discussion of spousal support and
attorney fees." The evidence supports that decision.
Although Jeffrey claims that Lilliana has the greater ability
to pay her attorney fees because she received more liquid
assets, Lilliana received only her retirement accounts and an
equalization payment totaling $129, 400 to compensate her for
her share of the assets awarded to Jeffrey. Jeffrey admits
that his earning capacity is higher than Lilliana's, and
he has security investment accounts with funds valued over
$1, 000, 000. Although the court recognized the tax
consequences of withdrawing the funds would lessen the value,
it also expected that Jeffrey would use those funds to
satisfy equalizing payments and his spousal support
obligation. Thus, the record supports a finding that Jeffrey
is in a superior financial position than Lilliana and can pay
her attorney fees along with his own.
complains the award of attorney fees is excessive because the
court ordered him to pay $62, 930 in Lilliana's attorney
fees during the discovery process. The court ordered Jeffrey
to pay those fees as a discovery sanction. But the court
subtracted that amount from the total Lilliana's attorney
billed during the proceedings when it determined a reasonable
attorney fee award. The $101, 746.13 in attorney fees and
costs the court awarded Lilliana represents her remaining
attorney fees, her expert fees, and costs. Because the court
properly exercised its discretion in determining the attorney
fee award, we decline to disturb it on appeal.
asks for an award of her appellate attorney fees. The
decision to award appellate attorney fees is within our
discretion. In re Marriage of Sullins, 715 N.W.2d
242, 255 (Iowa 2006). We consider the needs of the party
requesting the award and the ability of the other party to
pay. See id. We also consider whether the requesting
party had to defend the trial court's ruling on appeal.
See id. For the reasons ...