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Pasternak v. Pasternak

Court of Appeals of Missouri, Eastern District, Southern Division

November 24, 2015

PAUL L. PASTERNAK, Appellant,
v.
DENISE M. PASTERNAK, Respondent

          Appeal from the Circuit Court of St. Francois County. Honorable Shawn R. McCarver.

         FOR APPELLANT: Christina L. Kime, Piedmont, Missouri.

         FOR RESPONDENT: Lawrence G. Gillespie, Gillespie, Hetlage & Coughlin, L.L.C., Clayton, Missouri.

         Philip M. Hess, Judge. Lisa S. Van Amburg, C.J., concurs. James M. Dowd, J., dissents in separate opinion.

          OPINION

         Philip M. Hess, Judge.

Page 874

         Introduction

         Paul Pasternak (Father) appeals the trial court's judgment awarding Denise Pasternak (Mother) $12,500 in attorney's fees. In two points on appeal, Father claims that the trial court erred in ordering Father to pay Mother's attorney's fees because (1) the judgment was prohibited by § 452.377.13,[1] which precludes the award of attorney's fees against any party who objects in good faith to the relocation of the child's principal residence, and (2) the judgment was not supported by substantial evidence. We affirm.

         Factual Background

         2013 Modification and Relocation Proceeding

         Mother and Father previously divorced and shared custody of their children. In September 2012, Mother filed a motion to modify child custody seeking sole legal and physical custody of the children. Father objected to the motion. In May 2013, before a hearing on the motion to modify, Mother filed notice of proposed relocation, seeking to relocate the parties' children from Farmington, Missouri to Silva, Missouri, approximately 50 miles away. Father objected to the proposed relocation and filed a counter-motion to modify, also seeking sole legal and physical custody of the children. In August 2013, the trial court granted the relocation and gave Mother sole legal custody of the children. Mother and Father retained joint physical custody, but the court modified the custody schedule. Mother requested attorney's fees for these trial proceedings, which the trial court denied, noting Father's good faith objection to the relocation.

         Father appealed the trial court's judgment regarding both relocation and custody (hereinafter, " 2013 appeal" ). After this Court's decision in August 2014, the case was transferred to the Missouri Supreme

Page 875

Court. The Supreme Court affirmed the trial court's judgment, concluding that substantial evidence supported relocation and modification of custody. See Pasternak v. Pasternak, 467 S.W.3d 264 (Mo. banc 2015).

         Motion for Attorney's Fees for 2013 Appeal

         In June 2014, Mother filed a motion requesting $23,750 in attorney's fees for the cost of the 2013 appeal.[2] The parties stipulated that their incomes, expenses, assets and liabilities were the same from the time of 2013 modification and relocation proceeding (hereinafter, " 2013 modification proceeding" ), and neither party presented any additional evidence. Mother's attorney testified that " probably a third of [the total bill] would go toward relocation, and the rest of it was just -- was maybe a mix." The trial court suggested that Mother's attorney submit a bill identifying his hours devoted to relocation, but the attorney stated that because he did not " necessarily identify what issues I [was] reviewing at any particular point," the one-third estimate was " as good as we're going to get."

         After the hearing, the trial court awarded Mother $12,500 in attorney's fees for the appeal. In its judgment, the trial court noted that Father did not challenge relocation alone in the 2013 appeal, but also raised points concerning custody modification, including his request for sole legal and physical custody. The trial court also considered " all relevant factors, including but not limited to, the merits of all aspects of [Father's] case on appeal." Father appeals the award of attorney's fees.

         Standard of Review

          We will reverse the trial court's award of attorney's fees only upon the showing of an abuse of discretion. Aubuchon v. Hale, 453 S.W.3d 318, 325 (Mo. App. E.D. 2014). " To demonstrate an abuse of discretion, the complaining party must prove that the award is clearly against the logic of the circumstances ...


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