In D.C. v. J.S., 151 Montgomery Co. L. Rep. 29 (2013), the court addresses whether an award of counsel fees is appropriate under the custody statute 23 Pa. C.S. § 5593, which awards counsel fees to a party if the court finds the conduct of another party was obdurate, vexatious, repetitive or in bad faith, when there is no existing case law interpreting the statutory definition of the meaning of the elements of the statute.
In this case, which included extended litigation over custody and support, the Master’s Report recommended that judgment be entered in favor of Mother and against Father for an amount of the marital estate and included an award of $5,000.00 of Mother’s attorney’s fees. Father argued that the court’s imposition of attorney’s fees in favor of Mother was improper as the elements of the statute were not statutorily defined by any existing case law.
Without any existing case law interpreting the statutory definition of the elements of the statute, the trial court looked to the Statutory Construction Act of 1972 which states that “when a word or phrase is not statutorily defined, such words and phrases shall be construed according to the rules of grammar and according to their common and appropriate usage.”
Father had filed seven Petitions to Modify Custody since the entry of the parties’ Agreed Custody Order, all of which were denied. The trial court used the dictionary definition of repetitive to establish the statutory definition. As a result, the court determined Father’s filings were repetitive pursuant the statute and that it was “not in the best interest of the child to constantly be placed in the middle of continued custody litigation.” As a result the award of Mother’s counsel fees was appropriate under the statute.
* Article Authored by Marisa M. Perini, Esq. Ms. Perini is an Associate at Kardos, Rickles, Hand & Bidlingmaier, P.C., and specializes in domestic law.