Section 38. In any proceeding under this chapter, whether original or subsidiary, the court may, in its discretion, award costs and expenses, or either, to either party, whether or not the marital relation has terminated. In any case wherein costs and expenses, or either, may be awarded hereunder to a party, they may be awarded to his or her counsel, or may be apportioned between them.
Notes of Decisions
Cited in 69
cases (9 in the last 5 years), 1930–2026 · leading case: Cooper v. Cooper, 815 N.E.2d 262 (Mass. App. Ct. 2004).
Cooper v. Cooper, 815 N.E.2d 262 (Mass. App. Ct. 2004). · cites it 4דG. L. c. 208, § 38. We will not disturb an award that is “not incommensurate with an objective evaluation of the services performed.”
Krapf v. Krapf, 786 N.E.2d 318 (Mass. 2003). · cites it 2דThe defendant claims that the judge lacked authority in a declaratory judgment action to award the plaintiff appellate counsel fees pendente lite “pursuant to” G. L. c. 208, § 38. He does not claim that the amount of fees awarded was unreasonable.”
Cox v. Cox, 780 N.E.2d 951 (Mass. App. Ct. 2002). · cites it 3דMahlowitz, as attorney for the wife, presumably pursuant to G. L. c. 208, § 38, and G. L. c. 215, § 34A, 5 approximately $30,000 in counsel fees, a sum that was less than half of the fee *866 requested.”
Hoegen v. Hoegen, 43 N.E.3d 718 (Mass. App. Ct. 2016). “See G. L. c. 208, § 38. In the present case, it appears that the judge considered the motion and denied it, but he did not provide any explanation for the denial.”
Rauseo v. Rauseo, 740 N.E.2d 1063 (Mass. App. Ct. 2001). · cites it 3ד949 (1976); G. L. c. 208, § 38; G. L. c. 211 A, § 15; and G.”
Fuss v. Fuss (No. 1), 368 N.E.2d 271 (Mass. 1977). · cites it 2דFinally, the judge *67 awarded to James’s counsel attorneys’ fees amounting to $25,000, as well as costs and expenses amounting to $5,000, pursuant to G. L. c. 208, § 38, c. 209, § 33, c. 215, § 45, and common law authority.”
Heistand v. Heistand, 423 N.E.2d 313 (Mass. 1981). · cites it 2דIn the absence of the defendant’s specification, the judge based her determination on both the judicial discre *29 tion standard (G. L. c. 208, § 38) and the bad faith claim standard (G.”
Doe v. Roe, 585 N.E.2d 340 (Mass. App. Ct. 1992). · cites it 3דArguing that a judge may not award legal fees in the absence of statutory authorization, the defendant challenges the portion of the November 7, 1988 order which required the defendant to pay the plaintiff legal fees of $4,000.”
Freidus v. Hartwell, 954 N.E.2d 50 (Mass. App. Ct. 2011). · cites it 4דAs we conclude that the judge did not err by failing to award the wife contractual attorney’s fees (or statutory attorney’s fees pursuant to G. L. c. 208, § 38), we affirm the judgment.”
J.S. v. C.C., 912 N.E.2d 933 (Mass. 2009). “However, the statutory *666 authority to shift fees in marital custody disputes, G. L. c. 208, § 38, has been read to extend to nonmarital children.”
Krock v. Krock, 707 N.E.2d 839 (Mass. App. Ct. 1999). · cites it 4דFinally, Barbara argues that G. L. c. 208, § 38, which permits assessment of attorney’s fees as an incident to a divorce proceeding, cannot govern an award here.”
Schechter v. Schechter, 37 N.E.3d 632 (Mass. App. Ct. 2015). “130, 141 (2004), citing G. L. c. 208, § 38. If an award is within the range of reasonableness based on “an objective evaluation of the services performed” it will be affirmed on appeal.”
Wasson v. Wasson, 965 N.E.2d 882 (Mass. App. Ct. 2012). “The defendant argues that the attorney’s fees and costs awarded to the plaintiff were inappropriate and excessive because her claims were not frivolous and the plaintiff was equally responsible for the litigation.”
Wolcott v. Wolcott, 939 N.E.2d 1180 (Mass. App. Ct. 2011). · cites it 2דA judge has broad discretion in awarding attorney’s fees under G. L. c. 208, § 38, and, it follows, broad discretion to deny an award.”
Prenaveau v. Prenaveau, 964 N.E.2d 353 (Mass. App. Ct. 2012). “The father has requested an award of appellate attorney’s fees under authority of G. L. c. 208, § 38. Like the trial judge, we conclude that each party will struggle to meet the substantial fees and costs generated by this long and contentious litigation and that any shifting of…”
G.E.B. v. S.R.W., 661 N.E.2d 646 (Mass. 1996). “643 (1953) (award of attorney’s fees under G. L. c. 208, § 38 [1994 ed.]), may include work done on appellant’s behalf in defending an appeal); Frederick v.”
Kelley v. Kelley, 835 N.E.2d 315 (Mass. App. Ct. 2005). “130, 141 (2004), citing G. L. c. 208, § 38. Cf. O'Meara v. Doherty, 53 Mass.”
Pemberton v. Pemberton, 411 N.E.2d 1305 (Mass. App. Ct. 1980). “On the record before us, it cannot be found that Norman should have been excused from paying what was required to discharge the municipal liens and the amount representing the value of the stock, or that any change of circumstances had occurred (other than those already…”
Brooks v. Brooks, 837 N.E.2d 308 (Mass. App. Ct. 2005). · cites it 4ד” We conclude that the judge acted within her authority under G. L. c. 208, § 38, in awarding such fees and costs.”
Zildjian v. Zildjian, 391 N.E.2d 697 (Mass. App. Ct. 1979). “See G. L. c. 208, § 38. These two matters should be considered together, for "a spouse’s need for adequate legal representation in a lawsuit affecting the marital status is not materially different from those other needs .”
Kelley v. Kelley, 374 N.E.2d 580 (Mass. 1978). · cites it 2ד62, 65 (1930), in which we held that “[t]he provision of G. L. c. 208, § 38, giving the court authority, in proceedings under the chapter, to ‘award costs in its discretion,’ applies to taxable costs of suit and not to other expenses or counsel fees.”
Cooper v. Keto, 990 N.E.2d 76 (Mass. App. Ct. 2013). “The trial court also has discretion to award attorney’s fees pursuant to G. L. c. 208, § 38. In the instant case, the probate judge awarded the mother $90,263.”
Kendall v. Kendall, 687 N.E.2d 1228 (Mass. 1997). “The plaintiff also claims that she should have been awarded attorney’s fees pursuant to G. L. c. 208, § 38, because the defendant proceeded in a dilatory and vexatious manner.”
Goldman v. Roderiques, 349 N.E.2d 335 (Mass. 1976). “) And G. L. c. 208, § 38, as appearing in St. 1933, c.”
Freitas v. Freitas, 525 N.E.2d 438 (Mass. App. Ct. 1988). “Costs and expenses of litigation, including counsel fees, are allowed as an incident of a pending proceeding.”
Caldwell v. Caldwell, 461 N.E.2d 834 (Mass. App. Ct. 1984). “See G. L. c. 208, § 38. The.judge had before him an affidavit of the wife’s counsel detailing the time spent, hourly charges and expenses incurred.”
Hennessey v. Sarkis, 764 N.E.2d 873 (Mass. App. Ct. 2002). “There was, however, ample basis for the judge to exercise her discretion under G. L. c. 208, § 38, to order an award of attorney’s fees payable to the wife’s counsel in order to mitigate expenses incurred as a result of the husband’s obstructionist conduct.”
Feinstein v. Feinstein, 123 N.E.3d 781 (Mass. App. Ct. 2019). “We discern no abuse of discretion in the judge's implicit determination that the dispute, at least as presented to the court, was a financial dispute not falling within the ambit of the parenting coordinator provision of the agreement.”
Ventresca v. Town Manager of Billerica, 859 N.E.2d 897 (Mass. App. Ct. 2007). “Krock, supra at 533 (legal fees and costs allowed pursuant to G. L. c. 208, § 38).”
Hager v. Hager, 421 N.E.2d 1261 (Mass. App. Ct. 1981). · cites it 2דSee G. L. c. 208, § 38. The defendant’s appeals from other actions of the Probate Court do not present issues in addition to those treated below.”
Altman v. Johnson (In Re Johnson), 445 B.R. 50 (Bankr. D. Mass. 2011). “According to the Probate Court, on July 1, 2008, Thatcher filed a Motion for Attorney[’]s Fees pursuant to Mass. Gen. Laws ch. 208, § 38 in conjunction with her Complaint for Contempt regarding child support arrears.”
Krapf v. Krapf, 771 N.E.2d 819 (Mass. App. Ct. 2002). “The defendant argues that the judge erred in awarding the plaintiff attorney’s fees under G. L. c. 208, § 38, because this action was not a proceeding commenced under G.”
Edinburg v. Edinburg, 492 N.E.2d 1159 (Mass. App. Ct. 1986). “6 On October 19, 1982, Joseph filed a motion under G. L. c. 208, § 38, for an award of counsel fees to enable him to prosecute and defend the divorce actions.”
Crossman v. Crossman, 406 N.E.2d 1313 (Mass. App. Ct. 1980). · cites it 2דThe Probate Court had the power to award counsel fees under G. L. c. 208, § 38, only as an incident to a pending proceeding.”
Hano v. Hano, 367 N.E.2d 1190 (Mass. App. Ct. 1977). “Under the authority of G. L. c. 208, § 38, the probate judge ordered the plaintiff to pay $15,000 to his wife’s attorneys in satisfaction of their services rendered.”
Kennedy v. Kennedy, 499 N.E.2d 1224 (Mass. App. Ct. 1986). “Compare cases involving the *181 setting of fees under G. L. c. 208, § 38, “in the delicate setting of matrimonial litigation” where the question of fees is usually part of a determination of a fair division of marital assets.”
Vaida v. Vaida, 19 N.E.3d 423 (Mass. App. Ct. 2014). · cites it 2דFrom this judgment, the mother appeals, and the father requests *606 an award of attorney’s fees and costs in accordance with G. L. c. 208, § 38. 2. Discussion, a. The mother’s complaint for postminority support.”
Bisienere v. Buccino, 635 N.E.2d 265 (Mass. App. Ct. 1994). “The defendant attacks the trial judge’s award of $35,000 for attorney’s fees and costs incurred by the wife in the proceedings below.”
Murray v. Murray, 399 N.E.2d 886 (Mass. App. Ct. 1980). · cites it 2דThe wife’s “motion for rehearing” of the dismissal was denied, and the husband’s counsel was awarded fees and expenses in connection with the hearing on that motion.”
Wallace v. Wallace, 172 N.E. 914 (Mass. 1930). “Furthermore, the only purpose for which payments can be made under this statute is to enable the wife to “maintain or defend the libel.”
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