Published: Opinion Reversing and Remanding
County: Fayette
Published: Opinion Reversing and Remanding
County: Fayette
The parties divorced in 1990, ending a 24-year marriage. Their agreement provided the wife $3000.00 per month in maintenance which was subject to modification if she became more employable as a result of education she received from husband’s financial assistance. In October, 2008 husband filed a motion to modify maintenance after wife received a bachelor’s degree in social work from the University of Kentucky. In June, 2009, wife filed a motion for attorney fees, expert fees, and costs incurred to defend the motion for modification.
On June 22, 2009, family court heard testimony on both motions, and on June 30, 2009 entered an order finding insufficient grounds for modification of maintenance. The order did not mention wife’s motion for fees and costs. On July 1, 2009, wife’s attorney emailed the judge’s clerk regarding the fees and on August 13, 2009 the judge’s secretary informed husband’s attorney that wife was going to file an affidavit concerning fees and that husband would have one week to respond, after which there would be a hearing.
At the hearing on September 4, 2009 husband objected on the grounds that family court no longer had jurisdiction over wife’s motion. On September 16, 2009 the trial court granted wife’s motion and awarded $19,161.80 in attorney fees and held that husband’s objection was without merit.
Husband appealed to Court of Appeals, which held family court lacked jurisdiction to grant wife’s motion and reversed award of attorney fees. Wife then appealed from Court of Appeals’ decision and discretionary review was granted.
Husband contended that trial court’s granting of fees to wife was an amendment to its decision denying his motion to modify maintenance. Since wife’s motion was not granted within 10 days following denial of husband’s motion, he asserted that CR 52.02 divested family court of jurisdiction. The Supreme Court disagreed, however, finding that CR 52.02 applied only to the amendment of judgments. The ten day time limit would apply only if the order denying husband’s motion to modify was a final judgment.
The finality of a judgment depends upon whether a case involves a single claim or multiple claims. If the case involves a single claim, all rights of all parties must be adjudicated in order to be final. CR 54.01. Multiple claims involve the application of CR 54.02(1) which states a final judgment may be granted on less than all claims only if it is determined there is no just cause for delay. Absent such determination, the decision is interlocutory and subject to revision at any time before entry of judgment adjudicating all claims.
The Supreme Court found that wife’s motion for attorney fees was a separate motion by a party opposed to the initial action, and more akin to a counterclaim. Different facts supported each motion in that husband relied on wife’s attainment of a bachelor’s degree and the basis for wife’s claim was the financial disparity of the parties.
Holding that the motions of each party constituted separate claims for the purposes of CR 54.02, the Supreme Court reversed the opinion of the Court of Appeals and remanded to that court for consideration of the merits of husband’s appeal of the trial court’s order awarding attorney fees to wife.
Digested by Sandra G. Ragland, Diana L. Skaggs + Associates.
