REVIEW FROM COURT OF APPEALS CASE NO. 2016-CA-001255-MR
JEFFERSON CIRCUIT COURT NO. 09-CI-502860
COUNSEL FOR APPELLANT: Louis Irwin Waterman Goldberg Simpson,
LLC Allison Spencer Russell Goldberg Simpson LLC, Megan Keane
Goldberg Simpson LLC.
COUNSEL FOR APPELLEE: Michael Richard Slaughter Westport, KY.
Laura Faye Smith, and Appellee, Jimmy Howard McGill, married
in 1994 and divorced in 2005 in Arkansas. The Arkansas trial
court awarded Laura with primary residential custody of their
three children, with Jimmy having unsupervised visitation.
Laura subsequently moved to Kentucky and filed the decree in
Jefferson Family Court in 2009. The parties' custody and
support action has since been in that court. The matter
currently before the Court arose when Jimmy filed a motion to
become the primary residential custodian of his and
Laura's two youngest daughters (the oldest having already
been emancipated). The Jefferson Family Court denied
Jimmy's motion for primary custody in an order dated
January 21, 2016.
the trial court's January 21 order, Laura made a motion
for attorney's fees. On June 3, 2016, the court ordered
Jimmy to pay the full amount of Laura's attorney's
fees, totaling $26, 352.23. Jimmy moved the court to alter,
amend or vacate both the January 21 order denying him primary
residential custody and the June 3 order awarding Laura's
attorney's fees. On August 12, 2016, the court denied
Jimmy's motion to alter, amend, or vacate its January 21
custody order. However, the court amended the June 3 order
awarding attorney's fees. Upon reviewing Laura's
annual income of $41, 900 t and Jimmy's annual
income of $32, 500, the court found it improper to order
Jimmy to pay Laura's full attorney's fees and reduced
the amount to $10, 000. Jimmy appealed this order to the
Court of Appeals. The Court of Appeals affirmed the trial
court's decision pertaining to the custody of the
children and Jimmy did not appeal that ruling to this Court.
However, the Court of Appeals reversed and remanded
Laura's award of attorney's fees determining that no
actual disparity existed between Laura's and Jimmy's
income to justify an award of attorney's fees to Laura
pursuant to KRS 403.220. The Court of Appeals held that the
trial court is free to issue an order for attorney's fees
pursuant to CR 37, if it believes it is necessary and if the
record supports such a measure. Laura asked this Court for
discretionary review, which we granted. We now reverse the
Court of Appeals.
order granting Laura's motion for attorney's fees,
the trial court cited KRS 403.220 and Gentry v.
Gentry, 798 S.W.2d 928, 938 (Ky. 1990). Jimmy moved the
court to alter, amend, or vacate its order awarding
attorney's fees. In its order on Jimmy's motion, the
trial court stated it was under the mistaken belief that
Laura was not employed. Therefore, the court believed Laura
had no income when it initially analyzed the parties'
financial resources. The court then stated that Laura's
annual income was actually $41, 900 and Jimmy's annual
income was $32, 500. The order stated that "it was
improper to order Respondent to pay Petitioner's full
attorney's fee" and went on to quote
Gentry, which states "many of the costs and
fees were unnecessary in the sense that a good deal of the
court's time and a substantial part of the costs and fees
assessed could have been avoided by candor and
cooperation." 798 S.W.2d at 936. Preceding the citation
to Gentry, the court amended the award of
attorney's fees to $10, 000 as a more appropriate sum.
asserts that "Jimmy, th[r]ough his actions, subjected
not only Laura but also the Minor Children to litigation and
an I FA [Issue Focused Assessment] all of which were very
expensive . . . ." Laura contends that Jimmy behaved in
such a way that would allow the court to sanction him through
an award of attorney's fees.
Gentry, the husband, Tom, argued that the trial
court erred by awarding attorney's fees and costs to his
wife, Kathy. This Court stated "[i]n this instance,
financial inequality justifies the award, KRS 403.220.
Tom's obstructive tactics and conduct, which multiplied
the record and the proceedings, justify both the fact and the
amount of the award." Gentry, 798 S.W.2d at
938. Further, "the circuit court found that a
significant portion of the attorney's fees was incurred
as a result of Tom Gentry's obstructive tactics and
refusal to cooperate in the proceedings." Id.
However, much of the discussion of attorney's fees in
Gentry seems to be based primarily upon an award of
expenses pursuant to CR 37.01, which deals with discovery.
The Court of Appeals held that the present case should be
remanded to the trial court to determine if attorney's
fees were justified pursuant to CR 37; however, the
parties' arguments are not based on discovery. Therefore,
that rule has no applicability here.
argues that the plain language of KRS 403.220 does not
require a financial imbalance for an award of attorney's
fees. She insists the statute merely requires the trial court
to consider the financial resources of both parties in
determining the reasonable amount for attorney's fees.
Jimmy contends that the requisite factors did not exist for
an award of attorney's fees. Further, he contends that
case law prohibits the court from awarding attorney's
fees based on KRS 403.220 without a finding of disparity of
income. The Court of Appeals held that: "[a]s 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 attorney's
fees to Laura." For the following reasons, we agree with
Laura and hold that the trial court need not find a financial
disparity before awarding attorney's fees-that it must
only consider the financial resources of the parties.
more than forty years, this Court has interpreted KRS 403.220
to require a disparity of income as the threshold requirement
in awarding attorney's fees. For example, in Sullivan
v. Levin, 555 S.W.2d 261, 263 (Ky. 1977), this Court
stated "[i]n other words, the allowance is authorized by
the statute [KRS 403.220] only when it is supported by an
imbalance in the financial resources of the respective
parties." In that case, the Sullivans divorced and
reconciled, and the wife's attorney brought an action for
his fees. The Court allowed the fees.
was overruled by Hale v. Hale,772 S.W.2d 628 (Ky.
1989), on the issue of whether attorney's fees could be
paid directly to counsel. However, Hale upheld
Sullivan's interpretation requiring a financial
imbalance in order for a court to award attorney's fees
pursuant to KRS 403.220. This Court held "[t]he
contention of the respondent is that KRS 403.220 is solely
for the benefit of the client and not the attorney; that its
purpose is simply to permit recovery of a part or ...