APPEAL FROM FAYETTE CIRCUIT COURT HONORABLE JO ANN WISE, JUDGE ACTION NO. 11-CI-00828
BRIEFS FOR APPELLANTS: Matthew R. Malone Lexington, Kentucky.
BRIEF FOR APPELLEES: Traci H. Boyd Lexington, Kentucky Tiffany Fleming Lexington, Kentucky.
BEFORE COMBS, MAZE AND NICKELL, JUDGES.
Appellants, Kevin and Kelli Nesselhauf (hereinafter "the Nesselhaufs"), appeal from the order of the Fayette Circuit Court awarding attorney's fees to Appellees, Gregory Baltimore and Ryan Haden, stemming from a custody matter to which they were parties. The Nesselhaufs contend that the trial court erred in awarding said fees. We find that the trial court's order constituted an abuse of discretion, as the court did not have jurisdiction over the issue of attorney's fees. Therefore, we reverse.
The Nesselhaufs' daughter, Lisa, is mother to two children, A.A. and A.H.; the former being Baltimore's child and the latter being Haden's. In February 2011, the Nesselhaufs sought custody of their grandchildren, as well as de facto custodian status pursuant to Kentucky Revised Statutes (KRS) 403.270. Baltimore and Haden objected to these requests and, in their responses to the Nesselhaufs' motions, prayed for awards of attorney's fees. Following an evidentiary hearing regarding the Nesselhaufs' motions on April 22, 2011, and upon motions for directed verdict by counsel for Baltimore and Haden, the trial court found insufficient evidence to support the Nesselhaufs' claims for custody and de facto custodian status. The trial court entered a written order granting directed verdict on May 10, 2011.
On June 27, 2011, Haden filed a motion seeking reimbursement of his attorney's fees from the Nesselhaufs. Three days later, Baltimore filed a motion seeking the same. In an order entered August 9, 2011, the trial court stated that it would hear evidence pertaining to the motions and held that KRS 403.220, contrary to the Nesselhaufs' objections, did not impose a timeliness requirement upon Baltimore and Haden. The trial court requested that the parties perfect the record regarding fees and scheduled a pretrial conference on the matter.
On January 5, 2012, the trial court ordered the Nesselhaufs to pay $2, 000 of Baltimore's attorney's fees and $5, 000 of Haden's. In its order, the trial court emphasized the disparity between the Nesselhaufs' income and the respective incomes of Baltimore and Haden. The court did not address the timeliness of the motions for attorney's fees. Following the trial court's refusal to alter, amend or vacate the substantive findings in its order, the Nesselhaufs now appeal that order to this Court.
Standard of Review
On appeal, the Nesselhaufs portray the present issue as one of statutory interpretation. Hence, they contend that the matter is strictly one of law and that this Court must review the trial court's order de novo. While we will indeed review the language of KRS 403.220, we disagree that this case presents an issue of statutory interpretation. Further, it has long been held that the decision whether to make an assignment of attorney's fees, "and . . . the amount to be assigned is within the discretion of the trial judge." Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004) (quoting Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001)). However, this case hinges on a question of law: Whether or not the trial court had jurisdiction to consider the motions for attorney's fees. Hence, we review that preliminary question de novo, showing the trial court's order no deference. Grange Mutual Insurance Co. v. Trude, 151 S.W.3d 803, 810 (Ky. 2004). Should we resolve that question in the affirmative, we will then review the substantive issue regarding attorney's fees for an abuse of discretion.
The Nesselhaufs' argument on appeal is two-fold. They first argue that KRS 403.220 itself implicitly bars actions for attorney's fees after a period of time has passed from entry of the final order. The Nesselhaufs also assert that the Kentucky Rules of Civil Procedure ("CR") rendered the motions untimely and beyond the trial court's jurisdiction. We discuss the ...