Mitchell v. Mitchell, Ky COA, Civil Procedure, Attorney Fees

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Mitchell v. Mitchell, 2009-CA-001856-MR

Published:   Reversing

County: Fayette

         Appellant appealed from Circuit Court Order awarding Appellee attorney fees, expert fees, and costs incurred as a result of his motion to modify maintenance.  The CA agreed with argument that TC lacked jurisdiction to enter the Order and reversed.

         Parties were divorced in 1990 after 24-year marriage.  In the divorce agreement, Appellant agreed to pay $3,000 a month in maintenance until Appellee remarried or one of the parties died.  The agreement provided that if Appellee became more employable due to education she received with appellant’s financial assistance, this could be grounds for modification.  Appellee earned a bachelor’s degree in 1995.  In October, 2008, Appellant filed a motion to modify maintenance.

         June 9, 2009, Appellee filed a motion for attorney fees and costs related to her defense of the motion to modify maintenance.  On June 22, 2009, TC heard testimony on both motions.

         On June 30, 2009, TC entered order finding that Appellant failed to establish sufficient grounds to support modification and denied the motion, and indicated the ruling was final and appealable.  No appeal was taken.  Appellee’s motion for fees was not addressed.

         On July 1, 2009, Appellee’s attorney emailed the judge’s law clerk inquiring how to proceed with respect to the motion for fees, and on July 8, 2009 the clerk responded “I am on this, give me a day or two.”

        On August 13, 2009, the judge’s secretary informed Appellant about the ex parte communication between Appellee’s attorney and the law clerk.  Appellant’s counsel was advised that Appellee’s counsel had been instructed to file an attorney fee affidavit.  Appellant’s attorney would then have a week to file a response, after which the judge would hear arguments on the motion for fees on September 4, 2009.

        Appellant filed an objection to the TC’s consideration of the motion for fees, arguing that the court lacked jurisdiction to award fees and costs at this juncture and that such an award was unwarranted.  On September 4, 2009 the TC heard arguments from counsel, and on September 16, 2009 awarded Appellee $19,161.80 in attorney fees.  The TC found Appellant’s objection  on “technical jurisdictional grounds” to be without merit and stated “… the June 9 motion was not ruled on until this date.”  Thereafter, Appellant filed this appeal.

        Appellant argued on appeal that the TC lacked jurisdiction to rule on Appellee’s motion for fees and costs, that Appellant was prejudiced by the TC staff’s ex parte communication with Appellee’s counsel, and that the award of fees and costs was unwarranted.

         CA agreed with Appellant that the TC’s order denying his motion to modify was final and therefore the TC had lost jurisdiction to enter the subsequent order awarding fees because Appellee failed to timely request additional findings and modification of the Order pursuant to CR 52.02.  The CA concluded the Order was inherently final because the case addressed a single claim which was the motion to modify maintenance.  Appellee’s motion for fees did not constitute a separate claim.

          Because the Order was final, there was a ten-day window during which the TC could modify or Appellee could move for modification of the ruling to include findings and a ruling on her motion for attorney fees.  Appellee did not file a proper post-judgment motion.  The ex parte communication between Appellee’s counsel and the judge’s law clerk was insufficient to toll the time for amendment.  Therefore, entry of the order awarding Appellee attorney fees constitutes reversible error. 

         Appellant’s remaining two arguments were not addressed because the decision on the jurisdictional argument is determinative of the case as a whole.

 Digested by Sandra G. Ragland, Diana L. Skaggs + Associates

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