Opinion
NO. 2016-CA-001255-ME
05-19-2017
JIMMY HOWARD MCGILL, JR. APPELLANT v. LAURA FAYE SMITH APPELLEE
BRIEF FOR APPELLANT: Michael R. Slaughter Louisville, Kentucky BRIEF FOR APPELLEE: Louis I. Waterman Lindsay I. Hart Allison S. Russell Prospect, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON FAMILY COURT
HONORABLE TARA HAGERTY, JUDGE
ACTION NO. 09-CI-502860 OPINION
AFFIRMING IN PART, REVERSING IN PART, AND REMANDING
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BEFORE: KRAMER, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. MAZE, JUDGE: Appellant, Jimmy Howard McGill, Jr., appeals from an order of the Family Division of the Jefferson Circuit Court which overruled his motion to designate him primary residential custodian of his minor daughters. He argues that the trial court erred when it refused to allow the children to testify in chambers regarding their wishes as to custody. Jimmy also appeals from orders requiring his payment of Appellee, Laura Smith's, attorneys' fees and overruling his motion to compel and overruling his motion to alter, amend, or vacate.
We observe no abuse of discretion in the trial court's decision to overrule Jimmy's motion for designation as primary parental custodian. The trial court gave appropriate consideration to the factors listed in Kentucky Revised Statutes (KRS) 403.270 and the best interests of the children. Additionally, the trial court acted within its discretion when it denied Jimmy's request to have the children testify in chambers. The law simply does not require a trial court to do so. Finally, without passing judgment on the trial court's assessment of Jimmy's conduct as a basis for an award of attorneys' fees to Laura, KRS 403.220 requires a disparity of income between the parties, and such a disparity did not exist in this case. Therefore, we affirm in part, reverse in part, and remand for further proceedings.
Background
This case finds its origins in divorce proceedings between Jimmy and Laura which were finalized in Arkansas in 2005. Three daughters were born of the marriage. One has emancipated; and the two children who are the subject of this case were ages fifteen and thirteen at the time of the trial court's January 2016 order. As a result of the divorce proceedings, Laura, who moved to Jefferson County from Arkansas, held sole custody of the children, and Jimmy enjoyed largely telephonic visitation while remaining in Arkansas.
On April 24, 2014, Jimmy filed a motion to have him designated as his minor daughters' primary residential custodian, asserting that this modification was "in their best interest and for their safety." An affidavit attached to his motion attested that the children had reported "many instances of verbal and mental abuse" by Laura and her husband. The affidavit also related the children's desire to reside with Jimmy in Arkansas. After an unsuccessful mediation, the parties proceeded to trial.
Over two trial dates in July and November 2015, the trial court heard evidence from several witnesses, including Leanne Gardner, a former therapist for the family, who testified that the children expressed their desire to reside with Jimmy, but that she did not believe it to be in their best interest. Dr. Shannon Voor, a licensed clinical psychologist, testified regarding her observations and conclusions following an Issue Focused Parental Evaluation she conducted. Both experts contested the seriousness of Jimmy's claim, made in his affidavit, that one of the children had contemplated suicide while living with Laura. Dr. Voor also testified that the children had expressed their wish to live with Jimmy. Dr. Voor ultimately recommended that the children live primarily with Laura.
In August 2015, between the two trial dates, Jimmy moved the trial court to hear the children's in camera testimony as to their wishes regarding residency. However, the trial court overruled this motion, holding that "it is not appropriate to put the children in the position to choose between their parents in a court proceeding."
Following both hearings, the trial court entered a January 19, 2016 order overruling Jimmy's motion to be designated primary residential custodian. In its order, the trial court acknowledged the wishes of the children to live with their father. However, the trial court concluded that it was in the children's best interest for Laura to remain primary residential custodian. The court based this, in part, on its finding that the children were thriving in Louisville. The court also voiced concern regarding Jimmy's conduct toward Laura and his children and past emotional issues referenced in the Arkansas dissolution case. The trial court overruled a motion to alter, amend, or vacate this holding.
In a June 3, 2016 order, the trial court further ordered Jimmy to reimburse Laura for the full amount of her attorneys' fees, $26,352.23. This order contained no reference to the parties' financial resources. However, in an order amending the June 3 order, the trial court noted that Jimmy's annual income was $32,500 and Laura's was $41,900 as reported in Dr. Voor's 2014 report. The court based its amended award on Jimmy's lack of "candor and cooperation" and its belief that his conduct had prolonged the proceedings. Nevertheless, the trial court reduced the award to $10,000. Jimmy now appeals from the January and June 2016 orders.
The amended order also confessed that the trial court had made the initial award based upon its belief that Laura was unemployed. --------
Standard of Review
Trial courts possess broad discretion over matters relating to custody. Dull v. George, 982 S.W.2d 227, 230 (Ky. App. 1998), citing Squires v. Squires, 854 S.W.2d 765, 770 (Ky. 1990). They enjoy similarly broad discretion over the fact and amount of awards of attorneys' fees. Neidlinger v. Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001). Accordingly, we will disturb the trial court's conclusions only if we hold them to be arbitrary, unreasonable, unfair, or unsupported.
Analysis
Jimmy appeals from several orders covering several issues. He first argues that his children had a right to testify as to their wishes for custody and that the trial court erred in denying his request that they be allowed to do so in chambers. Jimmy also argues that the trial court abused its discretion in imposing attorneys' fees to Laura; and he appeals the trial court's decision overruling his subsequent motion to alter, amend, or vacate its prior rulings on these, and other, issues. We address Jimmy's arguments in-turn.
I. Direct Testimony as to the Wishes of the Children
KRS 403.270(2) mandates that a trial court "shall determine custody in accordance with the best interests of the child...." The statute goes on to provide a non-exhaustive list of "relevant" factors the trial court "shall consider[.]" These include:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;KRS. 403.270(2)(a)-(e). Jimmy contends that KRS 403.270 compelled the trial court to hear this testimony. We disagree.
Jimmy bases his argument first on the assertion that the children in this case "have a right to be heard and listened to" regarding their wishes as to custody. He asserts this while maligning that in the view of Kentucky courts, "minors have no rights until they turn 18." To Jimmy's latter point, we will simply say that numerous sources in Kentucky law render it false. See, e.g., KRS 620.010 ("Children have certain fundamental rights which must be protected and preserved, including but not limited to, ... the right to develop physically, mentally, and emotionally to their potential; ... and the right to a secure, stable family.").
To Jimmy's former, more substantive point, KRS 403.270 confers no such "right" upon children. Of course, the wishes of children as to their custodian are important. We can safely presume that is precisely why the General Assembly placed them among the statutory factors for a trial court to consider. However, by law, those wishes are but a single factor among many a trial court must consider when determining the best interests of those who often prove poor judges of what serves their best interests.
"The General Assembly wisely left the decision to interview a child in chambers to the sound discretion of the trial court. ... 'The elementary principles of humanitarianism are so strongly against the placing of a child between its parents that we feel a trial court should have a wide latitude in protecting the child.'" Addison v. Addison, 463 S.W.3d 755, 764 (Ky. 2015), quoting Parker v. Parker, 467 S.W.2d 595, 597 (Ky. 1971). In this case, abundant evidence of the children's wishes entered the record through other means, including Dr. Voor's testimony as to statements the girls made to them and reports of the children's guardian ad litem. Hence, as in Addison, the testimony of the children would offer no new information as to the children's wishes. Rather, it would place the children between their parents, a potentially harmful experience of which several parties to this case warned the trial court. Therefore, we observe no abuse of discretion in the trial court's refusal to elicit from the children their wishes as to custody during direct testimony in chambers.
Jimmy also contends that the trial court failed to give appropriate weight to the wishes of the children and other factors in KRS 403.270. The record belies this argument. Regarding the children's wishes, the trial court acknowledged the children's expressions of unhappiness in living with their mother. However, the trial court found their wishes insincere given the circumstances of the case. In a complex and fact-intensive case, this was a judgment of credibility lying well within the trial court's discretion, and we shall not disturb that judgment.
Overall, the trial court's order was sufficient to warrant affirmation. The trial court specifically invoked KRS 403.270 and the best interests of the children in this case. The trial court expressed its concerns, based upon proceedings and evidence in the record, regarding the effect an award of custody to Jimmy would have on the children's emotional health and relationship with their mother. These, and other, provisions of the trial court's January 19, 2016 order demonstrate appropriate consideration of the factors listed in KRS 403.270, and no abused of discretion occurred.
II. Award of Attorney's Fees
Jimmy also argues the trial court abused its discretion in awarding Laura $10,000 in attorneys' fees in an order amending its prior award of more than $26,000. He primarily contends that the requisite factors did not exist for an award of attorneys' fees, including disparity of income between himself and Laura. We review the trial court's order for an abuse of discretion. See Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990) ("An award of attorney's fees is committed to the sound discretion of the trial court with good reason.").
A. Preservation of the Issue for Appeal
Laura contends that Jimmy failed to preserve this issue for appeal because he did not name Laura's counsel as a party to the appeal. Laura contends that this warrants dismissal, because Laura's counsel, as the recipient of the award of attorneys' fees, is an indispensable party to the appeal. We disagree.
Under our Civil Rules, the Notice of Appeal is the means through which a party invokes this Court's jurisdiction over a matter and over certain parties. It follows that "[t]he notice of appeal shall specify by name all appellants and all appellees...." Kentucky Rules of Civil Procedure (CR) 73.03(1). Failure to do so can create a jurisdictional defect this Court is powerless to correct and render us unable to review issues to which an unnamed appellant or appellee is a necessary party. See, e.g., Franklin Cnty. Fiscal Court v. Stewart, 757 S.W.2d 194, 195 (Ky. App. 1988). However, this is the not the case presently.
KRS 403.220 provides, in pertinent part:
[t]he court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment.In Neidlinger, supra, our Supreme Court made a vital procedural distinction based upon the language of this statute:
If the 'reasonable amount' is ordered paid directly to the attorney, the attorney 'may enforce the order in his own name' and, thus, is the real party in interest and a necessary and indispensable party to any appeal from that order. But if the 'reasonable amount' ... is ordered paid to the client, the client remains the primary obligor of the fees, thus is the real party in interest with to respect to an appeal from the order.52 S.W.3d at 519, quoting KRS 403.220 (internal citations omitted).
Jimmy's failure to name Laura's counsel as a party to this appeal does not bar our review of the order awarding attorneys' fees. The trial court's original and amended orders award the attorneys' fees in question to Laura, not her attorney. Therefore, Laura is the only indispensable appellee to this appeal as it concerns attorneys' fees, and Jimmy's Notice of Appeal named her. Having resolved this jurisdictional question, we proceed to the merits of Jimmy's argument concerning attorneys' fees.
B. Disparity of Incomes
It is evident from the language of KRS 403.220, supra, that consideration of the parties' financial resources is a mandatory prerequisite to any award of attorneys' fees under that statute. If the parties' resources "are substantially equal, each spouse will be required to pay his or her own attorneys' fees; if their resources are grossly disproportionate, the court may award attorneys' fees to the party with fewer resources." Rearden v. Rearden, 296 S.W.3d 438, 444 (Ky. App. 2009), citing Beckner v. Beckner, 903 S.W.2d 528, 530 (Ky. App. 1995). However, it should be noted that an award of attorneys' fees may be appropriate, notwithstanding KRS 403.220, when a violation of CR 11 has occurred, when a party obstructs discovery pursuant to CR 37, see Lampton v. Lampton, 721 S.W.2d 736, 739 (Ky. App. 1986), and for contempt of court.
The trial court's amended order awarding attorneys' fees based its award upon Jimmy's and Laura's respective incomes and the court's belief that Jimmy's lack of "candor and cooperation" had augmented the costs and fees Laura accrued. The trial court cited to the Supreme Court's decision in Gentry, supra, where a party's conduct became an additional basis for the court's award of fees and costs. In Gentry, the Court held that a finding of income disparity is all that is required to justify an award of attorneys' fees under KRS 403.220. 798 S.W.2d at 937. The Court went on to hold that an award of fees is appropriate where, in addition to a disparity of income, the record supports a finding that at least a portion of the fees were incurred because of "obstructive tactics" and a "refusal to cooperate in the proceedings." Id. at 938.
While examples of Jimmy's lack of candor or cooperation may not be as evident to this Court, the trial court was in the best position to observe this behavior, and we must defer to its fact-finding role in what was a complex and emotional case. See Gentry at 938. Because we are operating within the bounds of KRS 403.220, what is more important is whether the trial court's amended order ultimately made the requisite finding that an income disparity existed between the parties, and whether substantial evidence of record exists to support that finding. We answer both questions in the negative.
The trial court's amended order found that Laura earned more annually than Jimmy, but that their incomes were approximately equal. While this consideration of the parties' financial resources was appropriate under KRS 403.220, the disparity was in Jimmy's, not Laura's, favor; and it could be accurately said that their incomes were "substantially equal." See Rearden, 296 S.W.3d at 444. As even Gentry holds, an actual disparity must exist before an award based also upon a party's conduct can be made. No such disparity existed according to the evidence the trial court cited and relied upon for the award of attorneys' fees to Laura. Hence, we must reverse and remand. On remand, the court is free to gather additional information concerning the parties' financial resources and make an award if a disparity now exists and if the parties wish to pursue fees. The Court is also free to pursue an order of attorneys' fees outside of KRS 403.220 and pursuant to CR 37, if it believes it necessary and if the record supports such a measure.
Conclusion
For the aforementioned reasons, we affirm the trial court's January 19, 2016 order overruling Jimmy's motion to be designated primary residential custodian. However, we must reverse the trial court's August 12, 2016 order awarding Laura attorneys' fees. We remand to the trial court for further proceedings, if necessary.
ALL CONCUR. BRIEF FOR APPELLANT: Michael R. Slaughter
Louisville, Kentucky BRIEF FOR APPELLEE: Louis I. Waterman
Lindsay I. Hart
Allison S. Russell
Prospect, Kentucky