Daniel Heekin v. Nicole Heekin

RENDERED: JUNE 30, 2023; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2022-CA-0433-MR
DANIEL HEEKIN APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
v. HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 20-CI-501777
NICOLE HEEKIN APPELLEE
AND
NO. 2023-CA-0180-MR
NICOLE HEEKIN CROSS-APPELLANT
APPEAL FROM JEFFERSON FAMILY COURT
v. HONORABLE DERWIN L. WEBB, JUDGE
ACTION NO. 20-CI-501777
DANIEL HEEKIN CROSS-APPELLEE
OPINION
AFFIRMING IN PART,
REVERSING IN PART,
AND REMANDING
IN APPEAL NO. 2022-CA-0433-MR; AND
REVERSING AND REMANDING
IN APPEAL NO. 2023-CA-0180-MR
** ** ** ** **
BEFORE: COMBS, EASTON, AND ECKERLE, JUDGES.
ECKERLE, JUDGE: The appeal and cross-appeal arise from a judgment and post-
judgment orders of the Jefferson Family Court in the dissolution of the marriage of
Daniel Heekin (Husband) and Nicole Heekin (Wife). In his direct appeal, Husband
argues that the Family Court erred in finding that he had dissipated marital assets
and abused its discretion in its award of maintenance and in its orders setting his
parenting time. In her cross-appeal, Wife argues that the Family Court abused its
discretion by setting aside its earlier award of attorney fees to her prior counsel.
In the direct appeal, we conclude that the Family Court did not clearly
err in finding that Husband dissipated marital assets and by charging that
dissipation against him in its division of other marital property. We further
conclude that the Family Court did not abuse its discretion by awarding Wife
permanent, prospective, open-ended maintenance. However, the Family Court
failed to make sufficient findings to justify its retroactive award of maintenance to
Wife. Furthermore, the Family Court’s findings are not sufficient to determine a
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reasonable basis for its decision to reduce Husband’s parenting time. Hence, we
affirm in part, reverse in part, and remand for additional findings on these issues.
In the cross-appeal, we conclude that the Family Court lacked a
reasonable basis to set aside its prior award of attorney fees to Wife’s former
counsel. However, there was no evidence of record which would allow the Family
Court to find that those fees were reasonable, and the Family Court did not so find.
Hence, we reverse the Family Court’s denial of attorney fees, and we remand this
matter for an additional hearing and findings as set forth below.
I. Facts and Procedural History
Husband and Wife were married in July 2012 and separated in August
2020. Wife was born and raised in Malta, and the parties resided there for a short
time after the marriage. Two children were born during the marriage: J.H. (born
2016) and E.H. (born 2018). J.H. has extraordinary medical needs and
developmental delays, and he requires extensive individual care.
Husband works as an accountant/auditor, most recently for KPMG,
L.L.C. Wife works part-time as a clinical counselor and therapist. In addition,
Wife was the primary caretaker for both children, including J.H.’s special needs.
However, there was testimony that Husband has also provided at-home care for
J.H. when Wife was absent.
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Husband filed a petition for dissolution of the marriage on August 5,
2020. Shortly after the filing of the petition, Wife filed motions for temporary
child support and maintenance. The Family Court conducted hearings on the
motions in early 2021. Shortly thereafter, the Family Court made findings and
entered an award of temporary child support. However, the Family Court did not
rule on Wife’s motion for temporary maintenance.
In December of 2021, the matter proceeded to a bench trial on the
remaining issues of division of marital property; custody, visitation, and support of
the parties’ children; and Wife’s request for permanent maintenance. Thereafter,
on January 31, 2022, the Family Court entered findings of fact, conclusions of law,
and an order on the disputed issues. Among other things, the Court addressed each
party’s allegations that the other improperly transferred marital funds during the
period of separation. The Family Court found that Wife had transferred
$57,229.00 from a joint account, and that Husband had transferred $40,573.00
from an investment account. The Family Court did not characterize the former
transfer as a dissipation, but stated that it would “balance equity in other assets to
account for the undisputed transfers of marital funds.” On the other hand, the
Family Court characterized the latter transfer as a dissipation and charged that
amount against Husband’s equity in the marital residence.
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On the issue of maintenance, the Family Court found that Wife was
unable to support herself at the level established during the marriage either through
marital property apportioned to her or through appropriate employment. The Court
noted that Wife’s responsibilities as primary caretaker for J.H. left her unable to
work full-time. Consequently, the Family Court awarded her open-ended
maintenance of $3,000.00 per month. The Court designated that the award would
be retroactive to September 20, 2020, which was the date of Wife’s motion for
temporary maintenance.
The Family Court previously entered an agreed order of joint custody
and a parenting schedule for both children. The Court addressed Wife’s motion to
modify the parenting schedule to eliminate Husband’s overnight stay with the
children on Wednesday. The Family Court granted the motion, finding that
Husband “has demonstrated a lack of knowledge of or an unwillingness to comply
with the medical needs of the children, especially J.H.” Finally, the Family Court
directed Husband to pay $30,000.00 of Wife’s attorney fees directly to her prior
counsel.
Both parties filed motions to alter, amend, or vacate this order. CR1
59.05. On April 1, 2022, the Family Court granted the motions in part and denied
1
Kentucky Rules of Civil Procedure.
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them in part. On the division of marital assets, the Family Court addressed
Husband’s objections to the Court’s finding that he had dissipated marital assets in
the investment account. The Court found that Husband withdrew $40,573.00 from
the account and used the funds for his attorney fees, trips, dates, and some of his
living expenses. Because Husband had access to other assets for these expenses,
the Family Court found that they were not justified and amounted to a dissipation
of marital assets. Likewise, the Court found that Wife had transferred $57,229.00
from a joint account and used these funds for personal expenses and attorney fees.
The Court again declined to characterize this as a dissipation but found that the
amounts spent on attorney fees were not marital in nature.
On the issue of maintenance, the Family Court expanded its findings
regarding Wife’s ability to work full-time and support herself. The Court stated
that it awarded open-ended maintenance because Wife is unable to work full-time
while also serving as primary caretaker for J.H. The Court also noted that
Husband has a considerably greater earning capacity and does not have the
obligations of caretaking for the children.
The Family Court reiterated its prior decision to eliminate Husband’s
Wednesday-night timesharing. The Court found that regular overnight visits
during the school week would be overly disruptive. The Court also noted the
testimony that Husband does not have adequate equipment for J.H.’s home therapy
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and that he does not have appropriate knowledge of the child’s exercises. The
Family Court also stated that Husband “has made no effort to obtain the necessary
equipment or receive the training that he needs to adequately work with the
children while they are in his care.” Thus, the Court denied Husband’s request to
reinstate Wednesday-night overnight parenting time.
Finally, the Family Court vacated its award of attorney fees to Wife’s
counsel, “as it appears that [Wife] is contesting the same.” This appeal and cross-
appeal followed. Additional facts will be set forth below as necessary.
II. Dissipation of Marital Assets
In his appeal, Husband first argues that the Family Court erred by
finding that he had dissipated $40,573.00 from the investment account and
charging that amount against his interest in the marital residence. Although he
admits to removing those funds from the investment account, he argues that Wife
failed to prove his intent to deprive her of marital assets or that the funds were
expended for a non-marital purpose. Rather, he contends that he merely used the
funds in the same manner that Wife used the $57,229.00 that she took from the
parties’ joint accounts.
A court may find that a party dissipated marital assets when it is
satisfied by a preponderance of the evidence that marital property was expended
during a period when the parties were separated or dissolution was impending, and
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there is a clear showing of intent to deprive the other spouse of his or her
proportionate share of marital property. Brosick v. Brosick, 974 S.W.2d 498, 502
(Ky. App. 1998). The concept of dissipation does not categorically prohibit either
party from expending marital funds during a period of separation. Obviously,
separated spouses often must meet ordinary and sometimes extraordinary expenses
without the benefit of dual incomes. Furthermore, since all property acquired
during the marriage until the date of the decree is presumed marital pursuant to
KRS2 403.190(3), most expenditures during a period of separation will involve
marital funds.
Rather, the rule in Brosick merely places such expenditures under
special scrutiny to ensure that one party is not unfairly deprived of marital assets
through the other party’s unilateral actions. “Once the party alleging dissipation
establishes a prima facie case, the burden of proof shifts to the party charged with
the dissipation to produce evidence sufficient to show that the expenditures were
appropriate.” Brosick, 974 S.W.2d at 502. If a party is proven to have dissipated
marital assets, “the court will deem the wrongfully dissipated assets to have been
received by the offending party prior to the distribution.” Id. at 500.
2
Kentucky Revised Statutes.
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We review the Family Court’s factual findings of dissipation for clear
error. CR 52.01; Reichle v. Reichle, 719 S.W.2d 442, 444 (Ky. 1986). Findings
are not clearly erroneous if they are supported by substantial evidence. Moore v.
Asente, 110 S.W.3d 336, 354 (Ky. 2003). Substantial evidence means “evidence
of substance and relevant consequence having the fitness to induce conviction in
the minds of reasonable men.” Owens-Corning Fiberglas Corp. v. Golightly, 976
S.W.2d 409, 414 (Ky. 1998) (citations omitted). It is within the province of the
Family Court as the fact-finder to determine the credibility of the witnesses and the
weight given to the evidence. Frances v. Frances, 266 S.W.3d 754, 756 (Ky.
2008).
In this case, both Husband and Wife admitted that they transferred
marital assets during their separation. Both Husband and Wife spent the funds on
living expenses and legal fees. In addition, Husband spent some of his funds on
travel and other personal expenses. The Family Court concluded that Wife’s living
expenses were marital in nature because she had no other funds to support herself
and the children. However, the Court also found that their respective legal
expenses, as well as Husband’s living and personal expenses, were not valid
marital expenditures. The Court specifically noted that Husband had access to
other income and assets for these expenses while Wife did not. Thus, the Family
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Court inferred Husband’s intent to deprive Wife of these assets by the absence of
an appropriate reason for the expenses.
Husband admitted to non-marital expenditures during the period of
separation. Those expenditures clearly deprived Wife of marital assets.
Consequently, Husband had the burden of proving that the expenditures were
appropriate. Husband argues that he provided sufficient accounting to meet this
burden. He testified that he paid about $40,000.00 in attorney fees out of the
investment account. In addition, he provided receipts for $3,290.00 for dates and
travel. Husband states that he used some funds for living and moving expenses,
although he does not indicate the amount or source of those expenditures.
Husband further testified that, at the time he removed the assets from the
investment account, he did not have access to any additional funds to meet these
expenses.
It appears from the evidence that Husband spent most of the allegedly
dissipated funds on his attorney fees. After considering the expenditures and the
resources of both parties at the relevant times, the Family Court determined that
Husband failed to prove that the expenses were justified. Although the evidence
would have supported a different conclusion, we cannot find that the Family Court
clearly erred by characterizing Husband’s actions as dissipation.
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III. Maintenance
Husband next raises several issues relating to the Family Court’s
award of maintenance to Wife. KRS 403.200 provides that a court may grant
maintenance to either party in a divorce action only if it finds that the party seeking
maintenance “[l]acks sufficient property, including marital property apportioned to
him, to provide for his reasonable needs; and . . . [i]s unable to support himself
through appropriate employment[.]” KRS 403.200(1). Under this statute, a trial
court must first make relevant findings of fact and then determine maintenance
considering those facts. Perrine v. Christine, 833 S.W.2d 825, 826 (Ky. 1992).
“In order to reverse the trial court’s decision, a reviewing court must find either
that the findings of fact are clearly erroneous or that the trial court has abused its
discretion.” Id. Once the trial court finds that maintenance is appropriate, the
amount and duration of maintenance is left to the sound discretion of the trial
court. Gentry v. Gentry, 798 S.W.2d 928, 937 (Ky. 1990).
Husband does not object to the sufficiency of the Family Court’s
findings that Wife was entitled to permanent maintenance. Rather, he raises
several issues concerning the amount and duration of the Family Court’s award.
First, Husband argues that the Family Court abused its discretion by making its
maintenance award retroactive to the date that Wife filed her motion for temporary
maintenance. Although KRS 403.160 permits an award of temporary maintenance,
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the purpose of such an award is to preserve the status quo between the spouses
while the dissolution proceeding is pending. Horvath v. Horvath, 250 S.W.3d 316,
318 (Ky. 2008). Consequently, temporary maintenance terminates with the entry
of the dissolution decree.
In Horvath, the trial court entered an award of temporary maintenance
in the amount of $1,700.00 per month. Husband consistently made those
payments. However, he was also in the process of selling his interest in a business.
Since he anticipated that this interest would be deemed marital, the Husband
increased his monthly payments to reflect the payments that he was receiving.
However, the trial court characterized all of these payments as a division of marital
property rather than maintenance. Consequently, that court concluded that the
husband still owed $1,700 per month in maintenance arrears from the date of the
order to the date of judgment. Id. at 317.
On review, this Court disagreed with that trial court’s characterization
of the amount owed as an arrearage; but concluded that it did not affect the total
amount that the husband owed. Id. at 317-18. But on discretionary review, our
Supreme Court reversed. The Court held that the husband was entitled to make his
temporary maintenance payments from any source, including marital property. Id.
at 318. The Court concluded that the husband clearly satisfied his temporary
maintenance obligation, and therefore, the trial court erred by characterizing the
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amounts owed as an arrearage. Id. The Court also observed that the husband was
genuinely aggrieved by this error because interest accrues on the arrearage as a
matter of law. Id.
Unlike in Horvath, the Family Court in this case did not enter a
temporary maintenance order. The Court simply designated its award of
permanent maintenance to be retroactive to the date that Wife filed her motion for
temporary maintenance. Consequently, this is not a case where the Family Court
impermissibly extended the temporary maintenance award beyond the entry of the
decree.
We also agree with Wife that Kentucky law permits the Family Court
to grant a retroactive award of maintenance from the filing of the motion to the
entry of judgment. Mudd v. Mudd, 903 S.W.2d 533, 534 (Ky. App. 1995).
However, the maintenance statutes generally contemplate prospective relief.
Pursley v. Pursley, 144 S.W.3d 820, 828-29 (Ky. 2004). Thus, retroactive relief is
usually appropriate only when circumstances delay a case from being submitted for
decision. Mudd, 903 S.W.2d at 534 (citing Ullman v. Ullman, 302 S.W.2d 849,
850 (Ky. 1957)).
And as previously noted, the purpose of temporary maintenance is to
preserve the status quo between the spouses while the dissolution proceeding is
pending. Horvath, 250 S.W.3d at 318. Thus, Wife’s motion for temporary
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maintenance involves a distinct inquiry from her request for permanent
maintenance in the decree. Finally, maintenance payments become vested when
accrued. Pursley, 144 S.W.3d at 828. Consequently, pre-judgment interest
accrues on past-due payments on the date when they were due, even when the
arrearage is retroactively imposed. Id. (citing KRS 360.010).
In this case, the Family Court’s retroactive award imposed a
maintenance arrearage of $48,000.00 on Husband. The Family Court’s findings do
not indicate that it considered the effect of that arrearage or the statutory interest on
its overall division of marital property. In addition, the Family Court did not set
out any reasons why a retroactive award of permanent maintenance was
appropriate considering the significant delay between Wife’s filing of her motion
for temporary maintenance and the entry of the final decree. In the absence of
such findings, the Family Court abused its discretion by making the retroactive
award. Therefore, we must remand this matter for additional findings to address
the reasons for making the award retroactive to the date of Wife’s motion for
temporary maintenance.
Husband also argues that the Family Court abused its discretion by
awarding permanent, open-ended maintenance to Wife. But in this matter, the
Family Court made extensive findings justifying the award. In its order denying
Husband’s CR 59.05 motion, the Court found that Wife is unable to work full-time
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due to her obligations as primary caretaker for the children, particularly their
disabled child. The Court also found that Husband “has not been involved with the
day-to-day care and medical appointments of the children, so he has been able to
work full time and excel at his career, earning $218,000.00 for the year 2021.”
The Court went on to find,
Even though the parties have only been married for nine
(9) years, the situation with their children is
extraordinary. It is not a matter of simply allowing
[Wife] enough time to be able to be in a position to
provide for herself, but rather the Court must also
consider her capacity to work while also caring for their
disabled children. Certainly, if circumstances change
and/or this becomes no longer the case, the award would
be modifiable. As such, the Court believes that an open-
ended award of maintenance is appropriate.
Although Husband disagrees with these findings, he has not shown
that they are clearly erroneous or fail to consider the applicable factors of KRS
403.200(2). The Family Court also properly noted that its award of maintenance is
modifiable upon a showing of a substantial change in circumstances. As a result,
we cannot find that the Family Court’s award of prospective, permanent, open-
ended maintenance constituted an abuse of its discretion. Therefore, we affirm this
portion of the maintenance award.
IV. Parenting Time
In his final argument on appeal, Husband argues that the Family Court
abused its discretion by eliminating his overnight parenting time with the children
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on Wednesday nights. He contends that this reduction granted him less than
“reasonable” parenting time, as required by KRS 403.320(1).
KRS 403.320(1) provides that “[a] parent not granted custody of the
child . . . is entitled to reasonable visitation rights unless the court finds, after a
hearing, that visitation would endanger seriously the child’s physical, mental,
moral, or emotional health.” Reasonable visitation is “decided based upon the
circumstances of each parent and the children, rather than any set formula.” Drury
v. Drury, 32 S.W.3d 521, 524 (Ky. App. 2000). In determining the best interests of
the children, a trial court is in the best position to resolve the conflicting evidence.
Frances, 266 S.W.3d at 758-59. Thus, matters involving visitation are peculiarly
within the discretion of the trial court. Drury, 32 S.W.3d at 526.
However, this discretion is circumscribed by the provisions of KRS
403.270(2), which provides, in pertinent part, as follows:
The court shall determine custody in accordance with the
best interests of the child and equal consideration shall be
given to each parent and to any de facto custodian.
Subject to KRS 403.315, there shall be a presumption,
rebuttable by a preponderance of evidence, that joint
custody and equally shared parenting time is in the best
interest of the child. If a deviation from equal parenting
time is warranted, the court shall construct a parenting
time schedule which maximizes the time each parent or
de facto custodian has with the child and is consistent
with ensuring the child’s welfare.
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The statute goes on to provide a list of factors for the court to consider
in determining the best interest of the child. If the court determines that a
deviation from equal parenting time is appropriate, it must set forth a parenting
time schedule maximizing the time each parent has with the child and “consistent
with ensuring the child’s welfare.” KRS 403.270(2).
A reduction in a parent’s visitation schedule is considered a restriction
of that visitation only if the new schedule is not reasonable. See Kulas v. Kulas,
898 S.W.2d 529, 530 (Ky. App. 1995). Wife never sought to restrict Husband’s
visitation, only to modify it based upon the needs of the children. Under KRS
403.320, a trial court has the flexibility to modify visitation under such
circumstances when it is shown to be in the best interests of the children.
Pennington v. Marcum, 266 S.W.3d 759, 769-70 (Ky. 2008).
In this case, the Family Court granted Husband parenting-time every
Wednesday from 5:00 p.m. to 8:00 p.m., every other Thursday from 5:30 p.m. until
8:30 p.m., and every other weekend from Friday at 5:00 p.m. until Sunday at 10:00
p.m. The Court also granted him extensive holiday and summer-vacation
parenting time. Although the Court eliminated overnight visitation on
Wednesdays, Husband has not shown that this single modification renders the
schedule as less than reasonable.
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Husband also argues that the Family Court clearly erred in finding
that overnight weekday visitation would be overly disruptive to the children and
that he was unable or unwilling to provide the care and equipment that the children
need for such visitation. He cites to testimony from the children’s therapists, and
notes that none of them testified that he lacked the knowledge or equipment
necessary to meet the children’s needs. In reaching a contrary conclusion, the
Family Court primarily relied on Wife’s testimony regarding her observations of
the children when they returned from visits with Husband.
In both its initial order and its order denying Husband’s CR 59.05
motion, the Family Court found that Husband “is unable to meet the children’s
needs on a regular basis pursuant to Caskey v. Caskey, 328 S.W.3d 220 (Ky. App.
2010).” However, this conclusion is at odds with the Family Court’s grant of
alternate weekend, holiday, and summer parenting time. Clearly, he is able to meet
the children’s needs at those times.
Moreover, Caskey involved a situation where the child was assaulted
while in the mother’s care, and the mother was indicted for allowing the child to be
abused. Id. at 222. There was also extensive evidence of the mother’s neglect of
the needs of the child. Id. at 222-23. This Court reversed the trial court’s denial of
the motion to modify custody and visitation, concluding that it amounted to a
manifest abuse of discretion under the circumstances. Id. at 223-24.
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The circumstances of the current case present a far less dire situation
than those in Caskey. It only concerns a single overnight, mid-week visitation.
There are no allegations that the children have been harmed while in Husband’s
care. Wife concedes that Husband is a suitable person for custody and care of both
children at other times. Indeed, the Court had no objections to Husband having
overnight, weekend parenting time, even though the same concerns would appear
to apply. At the very least, the Family Court’s findings that Husband is unable “to
meet the children’s needs on a regular basis” is overstated.
This leaves us with the Family Court’s conclusion that Husband’s lack
of knowledge and equipment would make Wednesday-night parenting time “overly
disruptive” to the children. We would normally defer to the Family Court’s wide
discretion in scheduling matters. But in this case, the Family Court’s findings are
not sufficient to determine whether it adequately considered the appropriate factors
when it eliminated Husband’s Wednesday-night parenting time. Moreover, as
discussed above, KRS 403.270(2) requires more specific findings when deviating
from equal parenting time. Consequently, we must reverse this single holding and
remand for additional factual findings setting out whether mid-week overnight
parenting time with Husband would be in the best interests of the children.
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V. Cross-Appeal – Attorney Fees
In her cross-appeal, Wife argues that the Family Court abused its
discretion by setting aside its prior award of $30,000.00 in attorney fees. As an
initial matter, we note that the Family Court previously awarded attorney fees
directly to Wife’s former counsel, Louis Waterman (Waterman). However,
Waterman is not a party to this appeal. Under the rule set forth in Neidlinger v.
Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001), overruled on other grounds by Smith
v. McGill, 556 S.W.3d 552 (Ky. 2018), the attorney would be an indispensable
party to Wife’s appeal from the Family Court’s order setting aside the award of
attorney fees to him.
But recently, the Kentucky Supreme Court noted that this rule has
been altered by the adoption of the Kentucky Rules of Appellate Procedure (RAP).
Mahl v. Mahl, ___ S.W.3d ___, 2023 WL 3113308 (Ky. Apr. 27, 2023) (finality
endorsement granted May 18, 2023). Based on RAP 2(A)(2) and 10(B), strict
compliance for naming an indispensable party is no longer required. Mahl, 2023
WL 3113308, at *8. Although it is not clear how these new rules affect the relief
available on appeal, we conclude that Wife is entitled to challenge the denial of her
attorney fees even though Waterman is not a party to this appeal.
KRS 403.220 authorizes a trial court to order a party to pay a
“reasonable amount” of the other party’s attorney fees after considering the
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financial resources of the parties. In Smith v. McGill, 556 S.W.3d 552 (Ky. 2018),
the Kentucky Supreme Court overruled prior case law requiring that there be a
disparity in the financial resources of the parties in favor of the payor. Id. at 556.
“While financial disparity is no longer a threshold requirement which must be met
in order for a trial court to award attorney’s fees, we note that the financial
disparity is still a viable factor for trial courts to consider in following the statute
and looking at the parties’ total financial picture.” Id. Other factors the trial court
should consider include the following:
(a) Amount and character of services rendered. (b)
Labor, time, and trouble involved. (c) Nature and
importance of the litigation or business in which the
services were rendered. (d) Responsibility imposed. (e)
The amount of money or the value of property affected
by the controversy, or involved in the employment. (f)
Skill and experience called for in the performance of the
services. (g) The professional character and standing of
the attorneys. (h) The results secured.
Rumpel v. Rumpel, 438 S.W.3d 354, 363 (Ky. 2014) (quoting Sexton v. Sexton, 125
S.W.3d 258, 272-73 (Ky. 2004)).
Following the bench trial, Wife’s current counsel, Louis P. Winner
(Winner), filed an affidavit setting that she had incurred $74,429.67 in attorney
fees through representation by his firm, and $101,622.92 in attorney fees through
representation by Waterman’s firm. Based on this affidavit, Wife’s combined
attorney fees are $176,052.59. The affidavit also stated that Wife still had an
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outstanding balance of $44,583.00 owed to Waterman. On the other hand, Wife’s
tendered factual findings set out attorney fees of $71,025.17 to Winner’s law firm
and $57,039.00 to Waterman’s firm, which should result in attorney fees totaling
$128,064.17.
In its initial findings, the Family Court found that Husband had
incurred attorney fees and costs totaling $73,923.25, while Wife had incurred
attorney fees and costs totaling $172,647.00.3 The Court also found that Wife had
outstanding attorney fees owed to Waterman in the amount of $44,583.00. The
Family Court considered Husband’s substantially greater wealth and resources.
But the Court also pointed out that Wife had incurred more than twice the attorney
fees and costs than Husband. Based upon these significant disparities, the Family
Court directed Husband to pay $30,000.00 of Wife’s fees to her attorney.
In his petition for rehearing, Husband noted that neither Winner nor
Waterman provided detailed billing records. Consequently, Husband argued that
Winner’s affidavit lacked sufficient detail to determine whether Wife’s fees were
reasonable. He also argued that the Family Court failed to make sufficient findings
under the factors set out in Sexton. Husband also pointed out that Wife had used
3
This total is not consistent with the amounts set forth either in Winner’s affidavit or in the
tendered findings, and the Family Court did not state how it arrived at this figure. While neither
party has challenged the factual finding, this disparity is moot in light of our conclusion below
that this matter requires additional factual findings.
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marital funds to pay her attorney fees while the matter was pending. In addition,
he asserted that Wife’s prosecution of the dissolution matter often had been
vindictive. Finally, Husband asserted that Wife testified that she was contesting
the majority of her fees to Waterman, and “she did not expect to pay them.”
However, Husband’s motion did not include a citation to the record for this
assertion. As noted above, the Family Court relied on this latter ground in setting
aside its award of $30,000.00.
Wife argues that there was no evidence in the record to support this
assertion that she was contesting the attorney fees owed to prior counsel. We
agree. Neither the parties nor the Family Court cite to any evidence or testimony
supporting this claim. Likewise, there is no evidence that Wife did not incur
attorney fees to Waterman or the amount of any fees are in dispute. And even if
Wife may challenge the total amount of attorney fees that she owes to Waterman,
Husband lacks standing to assert that potential dispute as a basis to avoid the
imposition of attorney fees. Under the circumstances, we must conclude that the
Family Court abused its discretion by setting aside the award of attorney fees on
this basis.
In his reply brief, Husband argues that this Court should affirm the
Family Court’s order setting aside the award of attorney fees due to the absence of
any findings that Wife’s fees were reasonable. “Where the prevailing party seeks
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only to have the judgment affirmed, it is entitled to argue without filing a cross-
appeal that the trial court reached the correct result for the reasons it expressed and
for any other reasons appropriately brought to its attention.” Commonwealth,
Corrections Cabinet v. Vester, 956 S.W.2d 204, 205-06 (Ky. 1997). As noted
above, Husband brought this matter to the attention of the Family Court when he
filed his CR 59.05 motion. He also requested more specific findings pursuant to
CR 52.02. Finally, as the prevailing party on this issue below, Husband could not
have raised this issue in his direct appeal. Therefore, we conclude that he is
entitled to raise this issue in response to Wife’s cross-appeal from the Family
Court’s order setting aside the award of attorney fees.
It is well-established that any award of attorney fees is subject to a
determination of reasonableness by the Trial Court. Capitol Cadillac Olds, Inc. v.
Roberts, 813 S.W.2d 287, 293 (Ky. 1991). Our domestic-relations statutes and
case law have never required the same level of documentation as required for other
awards of attorney fees. But at a minimum, the Family Court must establish a
“lodestar” figure, consisting of the counsel’s reasonable hours, multiplied by a
reasonable hourly rate. Meyers v. Chapman Printing Co., Inc., 840 S.W.2d 814,
826 (Ky. 1992). Once that determination is made, the Family Court must
determine the reasonableness of those fees using the Sexton factors.
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In this case, Winner’s affidavit only provided his own hourly rate but
did not indicate the number of hours that he expended while representing Wife.
Moreover, there was no evidence of the hourly rate or hours billed by Waterman –
only the total amount billed by his firm. In the absence of such evidence, the
Family Court had no basis to calculate a lodestar figure. Furthermore, the Family
Court made no findings under the Sexton factors that the fees charged were
reasonable.
The Family Court has wide discretion to award attorney fees under
KRS 403.220. Smith, 556 S.W.3d at 556. But without adequate proof or findings,
this Court cannot afford meaningful appellate review of any award. Under the
circumstances, we must remand this matter for an additional hearing and findings
on the amount and reasonableness of the claimed attorney fees.
VI. Conclusion
Accordingly, in Appeal No. 2022-CA-0433-MR, we affirm the orders
of the Jefferson Family Court with respect to its rulings on dissipation of marital
assets and the award of prospective maintenance. We reverse those orders with
respect to the Family Court’s rulings on retroactive maintenance and the parenting
time schedule. We remand those matters to the Jefferson Family Court for
additional findings and entry of a new judgment as set forth in this Opinion.
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In Appeal No. 2023-CA-0180-MR, we reverse the order of the
Jefferson Family Court denying Wife’s motion for attorney fees, and we remand
that matter to the Family Court for an additional hearing and findings as set forth in
this Opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT/CROSS- BRIEFS FOR APPELLEE/CROSS-
APPELLEE: APPELLANT:
Melanie Straw-Boone Louis P. Winner
Michele L. McKinney Sidney M. Vieck
Louisville, Kentucky Louisville, Kentucky
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