James H. Swanson and Josephine A. Swanson - Page 44

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               We must apportion the award of fees sought by petitioners              
          between the DISC issue, for which respondent was not                        
          substantially justified, and the Algonquin property issue, for              
          which respondent was substantially justified.  Based on the                 
          record, we find that for the period December 1992 until September           
          1993,29 a total of 312.9 hours was spent by counsel in connection           
          with the Court proceedings.  Of this amount, 158.8 hours were               
          devoted to the DISC issue, 139.8 hours to the Algonquin property            
          issue, and 14.3 hours to general case management.  Based upon the           
          $75-per-hour statutory rate, as adjusted by the COLA computed               
          from 1981, we find that petitioners are entitled to an award for            
          166.4 hours of fees paid to counsel.30                                      
               As for expenses other than fees, petitioners have asked for            
          total miscellaneous litigation costs in the amount of $6,512.33.            
          Based upon our evaluation of the total time spent on the DISC               
          issue, and our need to exclude miscellaneous expenses incurred              
          with respect to the Algonquin property issue, we find that                  



          29                                                                          
               Pursuant to petitioners' agreement with counsel, December              
          1992 was the month from which they agreed to pay $40,000 of                 
          unbilled fees incurred on their behalf.  According to the                   
          affidavits of counsel, September 1993 was the last month in which           
          fees were incurred to defend the DISC issue.  Thus, this is the             
          only period for which petitioners may recover fees in this                  
          matter.                                                                     
          30                                                                          
               We reach this figure based upon 158.8 hours devoted to the             
          DISC issue and 7.6 of general case management apportioned to the            
          DISC issue ((158.8 / (158.8 + 139.8) x 14.3 = 7.6).                         




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