Can the Court Award Fees, Should the Court Award Fees and How Much Fees Should the Court Award?

Can the Court Award Fees?

Indiana follows the American rule with regard to attorneys' fees. Under the American rule, attorneys' fees are only awarded if allowed by contract, statute, where a common fund applies (such as probate matters) and obdurate conduct occurs like putting forth a frivolous claim or defense. See State Bd. of Tax commissioners v. Town of St. John, 751 N.E. 2d 657 (2001). This CLE will address issues with regard to the various statutes since contracts will change from contract to contract. 

The court can award attorneys' fees under many statutes.  The following is a short list of the statutes under which a court can award attorneys' fees:

24-5-13-22 Costs and expenses in recovery actions (Consumer Sales)

26-2-7-5 Extent of liability for stopping payment or permitting dishonor of checks

29-3-9-9 Expenses of proceedings (Guardianships and Protective Proceedings)

31-14-18-2 Costs of maintaining action and attorney’s fees (Paternity Actions)

31-15-10-1 Costs and attorney’s fees; order for direct payment to attorney (any proceeding under dissolution of marriage or legal separation article) (This includes post judgment proceedings)

31-16-11-1 Costs of proceeding and attorney’s fees (Support of Children and Other dependents) (This includes post judgment proceedings)

31-17-2.2-1 Notice of intent to move   

31-17-4-3 Attorney’s fees, court costs, and litigation expenses (actions to modify or enforce parenting time)

31-17-4-8 Contempt

31-17-7-1 Costs and attorney’s fees; order for direct payment to attorney (Custody and Visitation)

31-18.5-3-13 Filing fees Uniform Family Support Act

32-28-3-14 Attorney’s fees (Mechanic's Liens Enforcement)

34-52-1-1 General recovery rule (Obdurate conduct statute)

34-50-1-6 Attorney’s fees and costs (Qualified Settlement Offers limited to $1,000.00)

34-57-5-12 Family Law Arbitration Fees ($95,000 fee upheld in Masters v. Masters, ___ N.E.3d ____, (Ind. Oct. 16, 2015) 02S04-1504-DR-156.

Marion County has local rules governing the awarding of attorney fees. See LR49-FR00-509 ATTORNEY FEES in Family Law Proceedings and LR49-PR00 Rule 411 for Probate fees.

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This post was written by Richard A. Mann of Richard A. Mann PC. If you would like to submit content or write an article for the Estate Planning & Administration Section page, please email Rachel Beachy at rbeachy@indybar.org.