767.241 Award of attorney fees and other fees and costs.

(1) Court authority. The court, after considering the financial resources of both parties, may do the following:

(a) Order either party to pay a reasonable amount for the cost to the other party of maintaining or responding to an action affecting the family and for attorney fees to either party.

(b) If one party receives services under s. 49.22 or services provided by the state or county as a result of an assignment of income under s. 49.19, order the other party to pay any fee chargeable under s. 49.22 (6) or the cost of services rendered by the state or county under s. 49.19.

(2) Preaction and postaction fees. Any amount ordered under sub. (1) may include sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.

(3) To whom paid. The court may order that the amount be paid directly to the attorney or to the state or the county providing services under s. 49.22 or 49.19, who may enforce the order in its name.

(4) Payment by state or county.

(a) Except as provided in par. (b), no court may order payment of costs under this section by the state or any county which may be a party to the action.

(b) The court may order payment of costs under this section by the department or its designee, whichever is appropriate, in an action in which the court finds that the record of payments and arrearages kept by the department or its designee is substantially incorrect and that the department or its designee has failed to correct the record within 30 days after having received information that the court determines is sufficient for making the correction.

History: 1977 c. 105; 1979 c. 32 s. 50; 1979 c. 352 s. 39; Stats. 1979 s. 767.262; 1983 a. 27; 1993 a. 481, 490; 1995 a. 201, 279, 404; 1997 a. 27, 35, 252; 2005 a. 443 ss. 99, 112; Stats. 2005 s. 767.241.

An allowance of $1,000 attorney fees on appeal, after the award of a generous property settlement, constituted a penalty for appealing. Molloy v. Molloy, 46 Wis. 2d 682, 176 N.W.2d 292 (1970).

Attorney fees on appeal depend on need, ability to pay, and whether there is a reasonable ground for the appeal. Klipstein v. Klipstein, 47 Wis. 2d 314, 177 N.W.2d 57 (1970).

An order for attorney fees is enforceable by contempt. The court cannot enter a judgment in favor of the attorney directly. Before a contempt order is issued, the defendant must have notice of an application by the spouse to whom the fees are payable. O'Connor v. O'Connor, 48 Wis. 2d 535, 180 N.W.2d 735 (1970).

Denial of the wife's motion for her husband to contribute to attorney fees to prosecute the wife's appeal was an abuse of discretion when the issues in the case were vigorously contested and in no way frivolous. Markham v. Markham, 65 Wis. 2d 735, 223 N.W.2d 616 (1974).

A circuit court does not have subject matter jurisdiction in a divorce action to determine attorney fees between an attorney and client who the attorney continues to represent in the divorce action. Stasey v. Stasey, 168 Wis. 2d 37, 483 N.W.2d 221 (1992).

Nonmarital assets may be considered in determining whether to order one party to contribute to the other's fees. Doerr v. Doerr, 189 Wis. 2d 112, 525 N.W.2d 745 (Ct. App. 1994).

Under Ondrasek, 126 Wis. 2d at 484, the overtrial doctrine may be invoked in family law cases when one party's unreasonable approach to litigation causes the other party to incur extra and unnecessary fees. The public policy that an innocent party who is the victim of overtrial should not be burdened with the payment of extra and unnecessary attorney fees occasioned by the other party is equally applicable with respect to guardian ad litem fees. Hottenroth v. Hetsko, 2006 WI App 249, 298 Wis. 2d 200, 727 N.W.2d 38, 05-1212.