The case of Tanner v. Allen recently made its second appearance in the Delaware Supreme Court. The first appeal resulted in a decision in which the Supreme Court upheld the Family Court order finding Mr. Tanner in contempt of that Court’s property division order. Following that appeal, on February 22, 2016, Ms. Allen filed a motion seeking reimbursement of a portion of the attorney’s fees incurred to enforce the property division orders. After considering 13 Del. C. § 1515 and Family Court Civil Rule 88 the Court granted the motion, finding that fees were appropriate because Mr. Tanner “exhibited excessively litigious behavior and dilatory conduct by refusing to comply with [the] Court’s Orders.” Tanner v. Allen, Del. Supr. 162, 2016, *3 (Oct. 21, 2016). Mr. Tanner then filed his second appeal.
In the appeal Mr. Tanner argued, inter alia, that the Family Court could not award Ms. Allen attorney’s fees because she is the higher-earning party. In an interesting footnote, the Supreme Court puts this argument to rest stating:
Tanner does not point to any authority suggesting that a disparity in income between parties precludes the Family Court from awarding fees to the higher-earning party if equitable considerations support such an award. In his Reply Brief, Tanner cites Smith v. Francisco for the proposition that, in order for the Family Court to award fees pursuant to Section 1515 [of Title 13], “there must be current evidence that the party from whom the fees are sought is in a position of financial superiority.” Reply Br. 1 (citing Francisco, 2001 WL 578571). Francisco did not construe Section 1515 and does not otherwise support Tanner’s assertion. In Francisco, this Court ordered the Family Court to explain why it awarded fees after a custody dispute pursuant to 13 Del. C. § 731. Francisco, 2001 WL 578571 at *1. The Family Court explained that one party, Smith, had been “litigious” and that “neither party [was] in a position of financial superiority over the other[.]” Id. This Court observed that the Family Court ignored the “potentially significant equitable factor” that “Francisco may be in a better financial position than Smith.” Id. at *2. This Court further noted that “the Family Court did not obtain any current information before concluding that neither party was in a position of financial superiority.” Id. Because this and other factors were ignored by the Family Court, this Court concluded that “the award was supported only by the fact that Smith was the losing party.” Id. Francisco does not set forth a rule that the Family Court can never award attorney’s fees to a party with greater income. Instead, this Court’s comments appear limited to the context of assessing the Family Court’s analysis in that case. Additionally, in contrast to the Family Court in Francisco’s general statement that Smith was “litigious[,]” the Family Court in this case specifically explained that its fee award was based on Tanner’s “excessively litigious behavior and dilatory conduct by refusing to comply with [the] [c]ourt’s Orders.” Order at 1.
The decision may be read in its entirety here.
Leslie Spoltore is a Partner with the law firm Fox Rothschild LLP. Leslie practices in Fox Rothschild’s Wilmington, Delaware office. You can reach Leslie at (302) 622-4203, or email@example.com.