[Posted November 12, 2008] There’s only one published opinion from the Court of Appeals today, but in my mind, it takes a back seat to what would otherwise be a perfunctory remand order. Let’s start with the juicy stuff, shall we?

In September, the Supreme Court reversed the Court of Appeals in a social services appeal, DSS v. Cook. This was an appeal of the joint resolution of related custody and Child in Need of Services petitions. One of the issues in the case, as I reported it here, was a remand to the trial court for the calculation of attorneys’ fees to the grandparents of the child.

In September, the Supreme Court held that under the statute, entitlement to attorneys’ fees could not be decided based on the relative merits of the position taken by the losing litigant. Instead, the court held that the statute authorizing an award of fees turns only on the “relative financial ability of the parties.” The Supreme Court directed the CAV to remand the case to the trial court, for that court, in turn, to consider whether to award the grandparents attorneys’ fees for proceedings in the two appellate courts.

If you don’t normally swim in these waters, you might have glossed over some of that last paragraph. But in it lie the seeds of discord, as today we get a very rare sighting: Four of the judges essentially dissent from the remand.

[Okay; if you want to get picky about it, it’s technically a concurrence. But just read it and then tell me with a straight face that this four-page passage isn’t a dissent in sheep’s clothing. I’m going to call it a dissent, although the author, Judge Humphreys, appends at the end a statement that he respects and will comply with the directive to remand.]

It’s not that they don’t feel like sending the case back to the trial court; it’s just that that’s what they have been ordered to do by a higher court, and normally if that happens, the Court of Appeals just shrugs and complies. But today, the dissenting judges point out that the Law of Unintended Consequences may bedevil this particular remand. The dissenters note that if comparative wealth is the only factor to be considered, then the Departments of Social Services will virtually always be the wealthier party in each of these appeals, and will always have to pay. (The dissent doesn’t add, “no matter how damn-foolish the other party’s legal argument might be,” so I’ll add that little bon mot for them. That’s why publishing this web site is better than being a judge.)

There’s more. The court notes that the Supreme Court directs the trial court to determine appellate legal fees. It finds that, in at least one case in the past, the Supreme Court has determined legal fees on its own, without a remand. It also questions the authority of the originating court – JDR, in this instance and in its thousands of cousins – to award attorneys’ fees for proceedings other than those in that particular court. There’s a statute that grants unto JDR courts the ability to award fees “in cases properly before [them].” But once a case leaves for Appealdom, what authority does a court not of record have to direct the payment of fees? None, according to the dissenters’ views of the statute.

My two cents’ worth here is that the initial determination of the amount of fees in a trial court is perfectly permissible, and is a fairly typical procedure. I haven’t reviewed the one case cited where the Supreme Court did that on its own, but I recognize that trial courts are better equipped to determine the reasonableness of fee requests, particularly where evidence (including expert testimony) will be required. The Supreme Court’s order implicitly removes from the CAV’s bailiwick the right to award fees to the lawyers who stand in that appellate court, instead of giving the appellate court the discretion to either decide the fee petition or remand, as it sees fit. That deprivation of authority is one of the principal ingredients that give the court heartburn today.