Post-Divorce Attorney Fees - Published Opinion from Ky Court of Appeals

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HENCYE V. WHITE, ET AL.

A Domestic Violence Order had been entered against Husband, after which Wife filed a post-divorce motion requesting a parenting coordinator. Extensive litigation followed, including several motions for contempt and requests for attorney fees. Despite the fact that no active custody motion was before the court, Husband pursued numerous discovery requests, many of which were focused on obtaining financial information from Wife’s boyfriend and later husband (herein “boyfriend”). Husband requested attorney fees for Wife’s and boyfriend’s failure  to comply with discovery in the amount of $24,847.91. The trial court ordered Wife to pay $8,000 towards Husband’s attorney fees. Wife appealed and Husband cross-appealed.

The Court of Appeals held that the circumstances of this case do not justify any award of attorney fees. The American Rule, upheld in Rumpel v. Rumpel, requires parties’ to pay their own fees and costs. Rumpel v. Rumpel, 428 S.W.3d 354, 360 (Ky. 2014). There are two narrowly construed exceptions to the American Rule pertinent herein.

KRS 403.220 allows for an award of attorney fees based on disparity in income between the parties. In this case, the trial court did not make any finding that there was a disparity in income. Additionally, the trial court failed to consider other relevant factors including Husband’s obtrusive tactics and conduct.

CR 37.01 allows courts to require a party who fails to respond to discovery to pay for the other party’s reasonable expenses incurred in obtaining discovery, but makes an exception for when the parties’ refusal is “substantially justified” or when “other circumstances make an award of expenses unjust.” In this case, Husband was not entitled to attorney fees to compel discovery because he should not have been permitted to conduct the discovery in the first place. The Court of Appeals cites the ruling in Combs v. Daugherty, which prevents a party post-decree from engaging in discovery when no motion is pending. Combs v. Daugherty,170 S.W.3d 424, 426 (Ky. App. 2005). There was no pending motion when Husband made his discovery requests. Thus, the Court of Appeals concludes the sole purpose of the requests was to harass Wife and boyfriend.

Finally, the Court of Appeals notes that the trial court could not order Wife to pay attorney fees for boyfriend’s noncompliance with discovery. Thus, the Court of Appeals reversed the $8,000 award of attorney fees rendering Husband’s cross-appeal moot.

Digested by Elizabeth M. Howell.

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