Matthew Dendekker v. Jeanette Dendekker ( 2021 )

RENDERED: AUGUST 20, 2021; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2019-CA-0769-MR
MATTHEW DENDEKKER APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
v. HONORABLE DEANA MCDONALD, JUDGE
ACTION NO. 11-CI-503843
JEANETTE DENDEKKER AND
GOLDBERG SIMPSON, LLC, REAL
PARTY IN INTEREST APPELLEES
OPINION
REVERSING AND REMANDING
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BEFORE: CALDWELL, DIXON, AND L. THOMPSON, JUDGES.
DIXON, JUDGE: Matthew Dendekker appeals the order of the Jefferson Circuit
Court, entered on March 11, 2019, requiring him to pay $1,725 toward Jeanette
Dendekker’s attorney fees. After careful review of the briefs, record, and law, we
reverse and remand.
FACTS AND PROCEDURAL BACKGROUND
The underlying case is a post-decree dissolution action. In October
2017, the matter came back before the trial court for hearing on Matthew’s motion
to modify custody. The motion was ultimately denied, but relevantly, Matthew
was ordered to pay $15,000 toward Jeanette’s attorney fees. At Matthew’s request,
an order was entered on August 8, 2018, establishing a payment schedule which
required Matthew to pay Jeanette’s counsel $400 on the first of each month.
On September 1, 2018, Matthew emailed Jeanette asserting that he
was owed a sum of money for unreimbursed medical bills, which the parties divide
evenly, and advising that he would be offsetting this debt from his monthly
attorney fee payment. Accordingly, on his own initiative, Matthew did not make
his ordered September 2018 payment of $400. Likewise, in October 2018,
Matthew again applied an offset and paid Jeanette’s counsel only $10.30 of the
required $400 payment. In response, Jeanette moved the court to find Matthew in
contempt and for attorney fees. Thereafter, Matthew made his payments as
ordered.
A hearing on the motion was held in February 2019. To combat
Matthew’s claim that an offset was appropriate, Jeanette presented evidence that
Matthew likewise owed her reimbursement for shared medical bills. Matthew
disputed the amount and further denied that he had received notice of Jeanette’s
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claimed expenses. Matthew stipulated that he had not made payments as required
by the August 2018 order but asserted that his actions were not the result of willful
disregard for the court’s order. Alternatively, Matthew claimed he was not aware
his actions were inappropriate, but rather, his sole intent was to recoup some of the
compensation he was owed. He cited the increased financial strain due to an influx
of medical bills as his motivation.
After the hearing, the court entered an order containing CR1 54.02
finality recitations and finding that Matthew was not in contempt, but pursuant to
KRS 2 403.220, he was ordered to pay Jeanette’s attorney $1,725 in fees related to
the contempt proceedings. Matthew moved to alter or amend the judgment
pursuant to CR 59.05. The court reaffirmed its ruling but modified the payment
schedule. This appeal timely followed. Additional facts will be discussed as they
become relevant.
STANDARD OF REVIEW
Matthew challenges the court’s award of attorney fees. We review for
an abuse of discretion. Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004). A
court abuses its discretion if its decision is “arbitrary, unreasonable, unfair, or
1
Kentucky Rules of Civil Procedure.
2
Kentucky Revised Statutes.
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unsupported by sound legal principles.” Commonwealth v. English, 993 S.W.2d
941, 945 (Ky. 1999).
ANALYSIS
KRS 403.220 provides that, “after considering the financial resources
of both parties[,]” a court may order one party to pay another party’s attorney fees.
Circuit courts have great discretion in determining whether to award fees and, if so,
in what amount. Smith v. McGill, 556 S.W.3d 552, 556 (Ky. 2018). This is
because circuit courts are “‘in the best position to observe conduct and tactics
which waste the court’s and attorneys’ time and must be given wide latitude to
sanction or discourage such conduct.’” Id. (quoting with approval Gentry v.
Gentry, 798 S.W.2d 928, 938 (Ky. 1990)).
Matthew first argues that the court failed to comply with KRS
403.220 where there was a dearth of evidence regarding the parties’ present
financial resources and there had been a change in circumstances since the court’s
2017 attorney fee award. In response, Jeanette argues the court’s compliance with
this requirement is evidenced by its reference to the prior underlying 2017 award
of attorney fees and the findings in support thereof.
We agree with Matthew that the court erred. As Matthew notes in his
brief, the most recent evidence regarding the parties’ financial resources was
obtained 16 months prior to the current proceedings. While this fact alone is not
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fatal to the court’s determination, the court denied a similar request for attorney
fees a mere three months before these proceedings, citing its recognition that the
parties’ financial positions may have changed and that it did not have the proper
information. Consequently, the court’s determination that it had sufficient
evidence to justify the attorney fee award at issue herein is inconsistent and
arbitrary where no further evidence was presented and Matthew’s timely claims of
change in circumstances remain unresolved. Therefore, we remand so that the
circuit court may reconsider its award pursuant to KRS 403.220. Given our
determination that the court abused its discretion, we need not address Matthew’s
remaining argument.
CONCLUSION
Therefore, and for the foregoing reasons, the order of the Jefferson
Family Court awarding attorney fees is REVERSED and REMANDED for further
proceedings.
ALL CONCUR.
BRIEF FOR APPELLANT: BRIEF FOR APPELLEES:
Michelle M. Chalmers Leland R. Howard II
Louisville, Kentucky Louisville, Kentucky
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