Opinion
NO. 2012-CA-001782-ME
02-14-2014
KENNETH ROBERT AVERILL APPELLANT v. KARI LEANN AVERILL APPELLEE
BRIEF FOR APPELLANT: Kenneth Averill, Pro Se Paducah, Kentucky BRIEF FOR APPELLEE: Stephanie J. Perlow Murray, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM CALLOWAY FAMILY COURT
HONORABLE ROBERT DAN MATTINGLY, JR., JUDGE
ACTION NO. 09-CI-00563
OPINION
AFFIRMING IN PART
AND REVERSING IN PART
BEFORE: CAPERTON, LAMBERT, AND MOORE, JUDGES. LAMBERT, JUDGE: Kenneth Averill, proceeding pro se, has appealed from the September 20, 2012, order of the Calloway Family Court denying his motion to modify timesharing and ordering him to pay his former wife, Kari Averill, $3,825.00 in attorney fees for his violation of Kentucky Rules of Civil Procedure (CR) 11. We affirm the portion of the order denying the motion to modify timesharing, but reverse the portion awarding attorney fees.
This dissolution action originated in McCracken Family Court, where a petition for dissolution of marriage was filed in April 2005. On January 25, 2007, the McCracken Family Court awarded the parties joint custody of their minor son, Nolan, who was born on September 7, 2000. Kari was named as the primary residential custodian. In November 2008, the case was transferred to the Calloway Family Court upon Kari's move from Paducah with Nolan. We note that the certified record does not contain any of these documents. Rather, the abbreviated record begins with Kenneth's pro se motion to modify timesharing, the subject of this appeal.
On May 25, 2012, Kenneth filed his motion to modify timesharing between himself and Kari, stating that there had been significant changes in Nolan during the past year. Kenneth stated that Nolan, eleven years old at the time, had consistently asked to live with him and wanted to return to his previous school and friends in Paducah. Kenneth also stated that Nolan's academic performance had declined to an unacceptable level, including Ds and Fs on his report card. Furthermore, Nolan's rebellions against Kari had been escalating. Kenneth included an affidavit in which he detailed Nolan's school performance problems and homework procedures and stated that it would be in Nolan's best interest to change the current timesharing and for the court to allow Nolan to live with him. Other affidavits from a teacher and from counselor Shelby Kneer detailed Kenneth's academic plan for Nolan and the problems with Nolan's current situation living with Kari.
In her response, Kari disputed that there had been a change in circumstances sufficient to justify the family court altering the primary residential custodian pursuant to Kentucky Revised Statutes (KRS) 403.320. She indicated that the court had considered several motions and held several hearings regarding the primary residential custodian, but had always kept her as the primary residential parent. In the latest motion, Kari stated that Kenneth had provided the same reasons - that Nolan wanted to live in Paducah and return to St. Mary School - but also included a new argument that Nolan's grades had drastically fallen, which Kari denied. She argued that Nolan was well-established with her in the new community as well as at his school, church, and sports teams. Kari also requested an award of her attorney fees and costs for defending against Kenneth's motion.
In June 2012, the family scheduled a hearing for August 22, 2012. The family court warned the parties that if Kenneth's motion was harassing or not supported by proof, it could result in Kenneth having to pay all of Kari's attorney fees. The court instructed Kari's attorney to keep track of her hours. Twenty days before the hearing date, Kari filed a motion to modify custody from joint to sole custody based upon Kenneth's "continued harassing, obsessive, uncooperative nature in the dealings" with her and with regard to Nolan. Kari again requested an award of attorney fees.
Prior to the hearing, attorney Casey J. Naber entered an appearance as counsel for Kenneth. Also prior to the hearing, Kari moved to strike the testimony of Ms. Kneer because her counseling sessions with Nolan were in violation of the court's joint custody order (Kenneth did not confer with Kari about making an appointment for Nolan) and due to bias. The court ruled that Ms. Kneer would be permitted to testify so long as she was qualified to do so and instructed that she would not be permitted to testify to any hearsay unless she had been hired for therapeutic reasons, not litigation purposes.
The court commenced the hearing on August 22, 2012. The first witness to testify was Angela Farmer, who was called out of order on behalf of Kari. Ms. Farmer is the assistant director of St. Mary School System. She testified that Nolan had not been enrolled for the 2012-2013 school year. Ms. Farmer said Nolan had applied for a private school assistance fund through a third party, which was a first step in the enrollment procedure, but he had not been enrolled in the school.
Due to its length, the hearing was held over two days, August 22 and September 17, 2012.
Kenneth's first witness was Kari, who testified on cross-examination. Kenneth questioned Kari regarding Nolan's grades, which she agreed had declined since the 3rd grade. For 5th grade, Nolan's average grade for Reading was 90, his Math average was 77, his Science average was 89, his Social Studies average was 81, and his Language Arts average was 77. For 4th grade, his term grades were in the B range. Nolan's standardized test scores were better than his school grades. Kari wanted to have Nolan tested for ADHD in 4th grade, but had never done so due to conflicts with Kenneth. Her explanation for Nolan's declining grades was that Nolan believed his grades did not matter at his current school because he was going to be changing school the next year. Kari would check his assignments in his planner, help him when needed, and follow up on Infinite Campus reports. She would discipline him for not completing his homework assignments when he failed to write them in his planner. Nolan had not had tutoring since the 4th grade because it conflicted with Kenneth's visitation. Kari testified that Nolan played the tuba in band and had been signed up for sports in the past. She denied that she had prevented Kenneth's visitation that year; the last year she did that was during the 4th grade. Regarding counseling, Kari had difficulties contacting Ms. Kneer and told Mrs. Kneer that she could not see Nolan unless she was present.
Kenneth also called Ms. Kneer to testify. Ms. Kneer is an MSW licensed clinical social worker. Kenneth contacted Ms. Kneer via email the prior November to see his son due to his mood and his problems in school. She saw Kenneth a few times before she began seeing Nolan, which was at the beginning of the year. Her first session with Nolan was in March when she saw Nolan and Kenneth together. She believed she had permission from the court to see Nolan. Kari was notified at some point, and Ms. Kneer and Kari began to coordinate sessions. She saw Nolan four or five times, and the last two included Kari. Ms. Kneer canceled the subsequent session when she received a certified letter from Kari requesting that the sessions end.
Because the sessions began without the parents acting jointly, the family court found that the consultation was not started for purposes of therapy and therefore would not allow Ms. Kneer to testify to what Nolan told her as an exception to the hearsay rule.
Ms. Kneer's opinion as to Nolan's mood and disposition initially was that he was struggling at school, as he was being held in for recess, was not always turning his work in, and was getting poor grades. Ms. Kneer screened Nolan for ADHD, and the result was that he had some symptoms of ADHD -inattentiveness - but did not have enough symptoms to be diagnosed as ADHD or to start on medication. Ms. Kneer informed Kari of this. Ms. Kneer believed that Nolan's best interests would be served by returning to school in Paducah due to his problems and unhappiness at the current school. The family court explored other reasons affecting Nolan's mood, including the problems between his parents.
The next witness to testify was Kenneth. He filed his motion to modify due to Nolan's deteriorating grades over the last three years. He stated that Nolan was not happy in his current living situation, noting the constant yelling, fighting, and turmoil with his mother. His friends were in Paducah, where he was most happy. Kenneth expected Nolan's grades to be all As based upon his high test scores and Nolan's stated desire to be on the academic team at St. Mary. Kenneth believed extracurricular activities such as sports would be very beneficial to Nolan, but Nolan did not have enough time to participate in any of this during the limited time Kenneth had with him during visitation. He did not have any problems with Nolan's studies or with his behavior while he was with him. Kenneth notified Kari of all sessions with Ms. Kneer except the first one and believed that Kari changed her mind about Nolan seeing Ms. Kneer when it became apparent that her recommendation would be for Nolan to return to Kenneth. Kenneth wanted Nolan to be able to excel in sports and academics, which he would not be able to do if he stayed with Kari.
Kari began her cross-examination of Kenneth, but this was suspended in order for Kari to call Andrea Wheatley to testify. Ms. Wheatley is a 5th grade teacher at North Calloway Elementary School. Nolan was one of her homeroom students the prior year and was in her Language Arts class. Ms. Wheatley testified about Nolan's grades in Citizenship and Language Arts. In Citizenship, his marks improved over the terms until all marks were satisfactory. This was generally the case for 4th graders transitioning to the 5th grade. She notified both parents about Nolan's grades and his focus in class, and she spoke with Kari several times. They discussed his study habits at home and how to improve his organizational skills at school and at home. His end-of-term grades showed improvement. He excelled in some areas and was average in others. For example, he was a strong reader, but writing was not one of his strengths. She considered Kari to be an involved parent who was concerned that Nolan would succeed. She never observed that Kari and Nolan did not get along, and they seemed to have a normal relationship. On cross-examination, Ms. Wheatley confirmed that each term grade is separate. Upon questioning by the court, Ms. Wheatley stated that Nolan appeared to be a happy and normal boy struggling with normal 5th grade issues.
The family court decided to interview Nolan in chambers. Nolan was eleven years old and had just started 6th grade. He said middle school was going pretty well, and that he liked it better than elementary school. He liked to play sports, and played basketball when he went to his father's house on weekends. When asked to list good things about his mother, Nolan stated that they watched movies together. He reported that they sometimes get along well, but sometimes did not. His mother would yell at him, paddle him, and ground him. Nolan reported that he and his father did a lot of things together, including basketball, sports, and taking trips. He got along with him most of the time. He denied that his father told him that if he made bad grades at his current school, he would be able to live with him. His father told him that would be bad, not an advantage. He did not try to make bad grades and stated that 5th grade was tough, harder than 4th grade. Nolan stated that his current situation - living with his mother and visiting with his father - was good, but he would rather live with his father and attend St. Mary. With his father, he would get to do a lot more, and it was easier doing homework with him. His father would help him, while his mother would just tell him the directions. He had more friends in Paducah, which he agreed was strange because he had lived away from there for awhile. Nolan stated that his father never pressured or bribed him to say he wanted to live with him. Nolan was upset with his mother for moving him away from Paducah; she did not tell him, but just picked him up from his father's one day and said he was moving schools. He did not like being left out of the decision. He stated that it would not bother him to change schools because his friends went to St. Mary. He had remained involved with sports teams in Paducah through a church league with his dad. He reiterated that he really wanted to go to St. Mary and live with his father. He had always wanted to do this and had never changed his mind.
The family court described Nolan as a "straight-shooter" and believed he would tell the court how he felt despite what anyone might have told him to say. The court described Nolan as believable and likeable, and observed that he was adamant about what he wanted to do. However, the court stated it would listen to the rest of the testimony and noted that other factors would be considered, not just Nolan's wishes, although it did not find that Kenneth provided enough support related to Nolan's grades to alter the primary residential custodian.
The hearing resumed on September 17, 2012, and Kari continued her cross-examination of Kenneth. She questioned Kenneth about a diluted drug screening ordered a year earlier, Nolan's grades and sports activities, whether she had given Kenneth additional visitation time, Kenneth's contact with Nolan, his recent marriage, and his past addictions to pain killers and alcohol. On redirect examination, Kenneth stated that he still had concerns about Nolan's grades, including science. Upon questioning from the court, Kenneth stated that he would be paying the tuition for St. Mary, which was about $5,000.00 per year. Half of the yearly tuition would be subsidized by the church, and Kenneth believed that Nolan would get a scholarship for the rest of the tuition. Kenneth might have to pay about $100.00 to $200.00 per month out-of-pocket. He stated he had the financial ability to pay that amount and that money would not be an issue.
Kari was the last witness to testify. She testified that it was her responsibility to be Nolan's mother, not his friend. Kari described how she helped Nolan with his homework; she would explain to Nolan how to do it, but would not do it for him. She thought Kenneth did Nolan's homework for him, which concerned her. She also expressed her concern that Kenneth did not discipline Nolan and would be his friend rather than his father. She believed Nolan wanted to live with Kenneth because he was fun. She was concerned that Kenneth would not be able to deal with the stresses of raising a child, as he had not done this for seven years. She described Nolan as immature and irresponsible, and stated that she was always grounding him. Regarding his grades, Nolan had two As, two Bs, two Cs, and one F in Science. She was working with the teacher to address Nolan's grades, noting that many students were in this predicament due to the new standards that had been put in place. Kari expressed concern about Kenneth's truthfulness, how he made decisions, his lack of cooperation, and that he might be using drugs again after hearing reports from his sister that he had been sick. She believed it would be detrimental for Nolan to move away from the routine she had set up for him. Nolan relied on her stability and structure, and this helped him succeed. Kari believed she should continue to be Nolan's primary caregiver; it was what he was used to and was best for him. She did not believe that Nolan would be alright in Kenneth's care.
At the conclusion of the testimony, the court orally denied Kari's motion to change custody based on her failure to include an affidavit. The court also permitted the parties to make closing arguments related to Kenneth's motion to modify timesharing. Kenneth pointed out that Nolan had not been interviewed in the past; this was the first time his wishes were heard by the court. He suggested that Nolan be given a trial period to see if the new school worked.
On September 18, 2012, counsel for Kari filed an affidavit in support of a motion for attorney fees from the filing of Kenneth's motion to modify timesharing in June 2012 through the date of the hearing. The amount totaled $3,825.00.
On September 20, 2012, the family court entered an order denying Kenneth's motion to modify timesharing, denying Kari's motion to modify custody, and awarding attorney fees to Kari. The family court held that there was insufficient evidence for it to conclude that a modification of the current timesharing arrangement - with Kari designated as the primary residential parent - was necessary to serve the best interest of the child. The court included extensive findings of fact supporting this determination, including that Kenneth "failed to submit evidence that there have been significant changes in Nolan over the past year or that Nolan's academic performance has declined to an unacceptable level over the last year or that Nolan has shown rebellion with Kari which has escalated over the last year as he alleged in his pro-se motion[.]" However, the court did make a finding that "Nolan desires to reside primarily with Ken and attend school at St. Mary's in Paducah, Kentucky." The court also awarded CR 11 sanctions, finding that Kenneth's motion to modify timesharing "was not well grounded in fact and that he failed to make a reasonable inquiry as to the allegations he set forth in his motion to justify his request to modify time sharing. The only allegation he made in his motion which was well founded was his son's expressed desire to live with him." The court went on to state:
Both parties have filed numerous pleadings in both McCracken Family Court and Calloway Family Court since the case began in 2009. Ken's filing yet another unsubstantiated motion to be heard and litigated is in conformity with his past litigation behavior and was anticipated by the court. The court has given both parties fair and reasonable past warnings that attorney fees can be awarded against a party who files motions for "improper purposes." It is concluded that Ken's filing of the motion was designed more toward harassment and a needless increase in the cost of litigation. The court acknowledges that his son has expressed a continued desire to reside with him and attend school in Paducah, but there are more factors to consider than the wishes of a child, these factors have previously been litigated and weighed in the determination of custody.The court awarded Kari attorney fees and costs in the amount of $3,825.00, which the court stated were associated with Kenneth's motion for modification of timesharing. The court then stated that "[t]he judgment is deemed to be reasonable in light of Ken's testimony that money was not an issue for him after being questioned by the court as to how he planned to pay the tuition for St. Mary."
On October 1, 2012, Kenneth filed a pro se motion to alter, amend or vacate the family court's ruling, arguing that his motion was well-grounded in fact specifically with regard to Nolan's academic issues and that the court erred in refusing to admit Ms. Kneer's complete testimony. He also disputed the court's finding that he had filed the motion for improper purposes or harassment. Regarding the award of attorney fees and costs, Kenneth contended that the family court took his statement concerning tuition out of context; he indicated that he stated that the church would pay part of Nolan's tuition, he would pay part, and another part may come from a scholarship.
On the same day, Kenneth filed another motion to alter, amend or vacate through his attorney. In this motion, Kenneth argued that modification would be in the best interest of the child and disputed several of the family court's conclusions and findings related to structure, Nolan's grades, discipline, and Kenneth's possible relapse. He also argued that the motion was not filed for an improper purpose, but was well-grounded in fact, specifically related to Nolan's expressed desire to live with Kenneth and his declining grades, meaning that the award of attorney fees and costs was improper. In response, Kari contended that the motion was without reasonable foundation, but merely expressed Kenneth's opinion of how the family court should have ruled. Furthermore, Kari pointed out that she had requested attorney fees and costs, despite Kenneth's claim that she had not done so. On October 10, 2012, the family court denied both motions to alter, amend, or vacate, and this pro se appeal by Kenneth now follows.
On appeal, Kenneth argues that that family court erred in giving too much weight to Kari's testimony, in failing to properly consider the factors in KRS 403.270(2), and in awarding CR 11 sanctions. In her brief, Kari argues that the family court properly denied Kenneth's motion and awarded sanctions. Kari also contends that Kenneth's brief violates CR 76.12 by failing to include a reference to the specific page or time in the video record for several statements of fact and by including information that was not in the record in his statement of the case. We have taken this into consideration as we review Kenneth's brief.
In general, an appellate court may set aside a lower court's findings made pursuant to CR 52.01 "only if those findings are clearly erroneous." Moore v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (footnote omitted.) To determine whether findings of fact are clearly erroneous, we must decide whether the findings are supported by substantial evidence: " '[S]ubstantial evidence' is '[e]vidence that a reasonable mind would accept as adequate to support a conclusion' and evidence that, when 'taken alone or in the light of all the evidence, ... has sufficient probative value to induce conviction in the minds of reasonable men.' " Id. (footnotes omitted.)
The standard of review in the area of child custody and visitation is well-settled in this Commonwealth. The party seeking modification of custody or visitation/timesharing has the burden of filing a motion before the court, and the decision to modify is within "the sound discretion of the trial court." Pennington v. Marcum, 266 S.W.3d 759, 769 (Ky. 2008). KRS 403.320(3) provides for the modification of visitation and is applicable in cases where a party seeks modification of timesharing, as in this case. The statute permits modification "upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian, and that the modification is necessary to serve the best interests of the child." See also Pennington, 266 S.W.3d at 769 ("Since 'serious endangerment' or 'best interests' is not defined, it is left to the sound discretion of the trial court whether the party opposing relocation has met his burden on either a modification of custody or visitation/timesharing."). Regarding the best interests standard, "any factual findings are reviewed under the clearly erroneous standard; any decisions based upon said facts are reviewed under an abuse of discretion standard." Young v. Holmes, 295 S.W.3d 144, 146 (Ky. App. 2009). With this standard in mind, we shall review Kenneth's arguments on appeal.
For his first argument, Kenneth contends that the family court placed too much weight on Kari's testimony. He states that the family court relied exclusively on Kari's testimony as the basis for the denial of his motion to modify timesharing, including her methods of discipline, her suspicions of Kenneth's drug use, Nolan's opportunity to establish friendships in the Calloway community, and Kenneth's ability to parent Nolan.
In Moore v. Asente, supra, the Supreme Court of Kentucky confirmed that under CR 52.01, the trial court has the exclusive task to judge the credibility of the witnesses:
Regardless of conflicting evidence, the weight of the evidence, or the fact that the reviewing court would have reached a contrary finding, "due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses" because judging the credibility of witnesses and weighing evidence are tasks within the exclusive province of the trial court. Thus, "[m]ere doubt as to the correctness of [a] finding [will] not justify [its] reversal," and appellate courts should not disturb trial court findings that are supported by substantial evidence.Id. at 354 (footnotes omitted). Here, the family court weighed the testimony introduced at the hearing and concluded that Kari's testimony was more credible. We find no error in the family court's assessment, as its findings of fact were supported by substantial evidence introduced through Kari.
Next, Kenneth contends that the family court failed to properly consider the factors set forth in KRS 403.270(2) to determine the best interest of the child, including Nolan's stated wish to live with his father.
As Kari states in her brief, the proper statute to apply when determining whether to modify timesharing is KRS 403.320(3), which states that "[t]he court may modify an order granting or denying visitation rights whenever modification would serve the best interests of the child[.]" KRS 403.270(2), in turn, provides a list of all relevant factors a court must consider in order to decide what is in the best interests of the child:
(a) The wishes of the child's parent or parents, and any de facto custodian, as to his custody;Regarding the best interests standard, "any factual findings are reviewed under the clearly erroneous standard; any decisions based upon said facts are reviewed under an abuse of discretion standard." Young, 295 S.W.3d at 146. "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
(b) The wishes of the child as to his custodian;
(c) The interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child's best interests;
(d) The child's adjustment to his home, school, and community;
(e) The mental and physical health of all individuals involved;
(f) Information, records, and evidence of domestic violence as defined in KRS 403.720;
(g) The extent to which the child has been cared for, nurtured, and supported by any de facto custodian;
(h) The intent of the parent or parents in placing the child with a de facto custodian; and
(i) The circumstances under which the child was placed or allowed to remain in the custody of a de facto custodian, including whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence as defined in KRS 403.720 and whether the child was placed with a de facto custodian to allow the parent now seeking custody to seek employment, work, or attend school.
Here, the family court heard and took into consideration the wishes of Kari, Kenneth, and Nolan; Nolan's relationship with both of his parents; Nolan's adjustment to his school, home, and community; and the mental and physical health of the parties, all pursuant to KRS 403.270(2). Kenneth makes much of the family court's statement at the end of the first day of the hearing that it did not believe the matter was whether one parent was better than the other and that Nolan wanted to be in Paducah with Kenneth. The family court stated that it would consider Nolan's wishes, but it also noted that Kari had not yet introduced all of her evidence, including her own testimony on direct examination. Kari's testimony provided the family court with substantial evidence to support a finding that a modification of timesharing would not be in Nolan's best interests, especially in light of the family court's finding that the decline in Nolan's grades was not enough to establish the need for modification.
Because a de facto custodian was not involved, the family court did not have to consider those factors.
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Kenneth's last argument is that the family court erred in awarding CR 11 sanctions to Kari, arguing that his motion to modify timesharing was not unfounded and that Kari had not requested CR 11 sanctions. Rather, Kari had requested an award of attorney fees in her response to his motion to modify, which he argued was not justified. Kari argued that the award of attorney fees was proper.
CR 11 provides for the imposition of sanctions against attorneys or parties who sign pleadings or other documents in violation of the rule:
The signature of an attorney or party constitutes a certification by him that he has read the pleading, motion or other paper; that to the best of his knowledge,
information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. . . . If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney's fee. The Court shall postpone ruling on any Rule 11 motions filed in the litigation until after entry of a final judgment.
In Clark Equipment Co., Inc. v. Bowman, 762 S.W.2d 417 (Ky. App. 1988), this Court addressed the imposition of CR 11 sanctions, describing this as "a procedural rule designed to curb abusive conduct in the litigation process" and stating that CR 11 sanctions are intended only for "exceptional circumstances." Id. at 420 (citation omitted). The Court went on to state that "even if a case is meritless, Rule 11 has no application unless it is demonstrated that a party or his lawyer has signed a paper in violation of the Rule." Id. (internal citation and quotation marks omitted). "Considering the punitive nature of sanctions and the impact sanctions may have on a party or an attorney's career and personal well-being, a trial court should not impose sanctions without a hearing and without rendering findings of fact." Id. at 420-21 (internal quotation marks and footnote omitted). "The test to be used by the trial court in considering a motion for sanctions is whether the attorney's conduct, at the time he or she signed the allegedly offending pleading or motion, was reasonable under the circumstances." Id. at 420 (citations omitted). Related to our standard of review, Clark Equipment provides that in cases where sanctions are imposed, "our role requires a multi-standard approach, that is, a clearly erroneous standard to the trial court's findings in support of sanctions, a de novo review of the legal conclusion that a violation occurred, and an abuse of discretion standard on the type and/or amount of sanctions imposed." Id. at 421 (footnote and citations omitted). But cf. Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110 S.Ct. 2447, 2460-61, 110 L.Ed.2d 359 (1990) (applying an abuse of discretion standard to an appellate court's review of all aspects of a district court's Rule 11 determination).
KRS 403.220 provides the statutory authority for the award of costs and attorney fees in a dissolution action:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for attorney's fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.In Bailey v. Bailey, 399 S.W.3d 797, 803 (Ky. App. 2013), this Court addressed the application of this statute:
Under Kentucky Revised Statutes (KRS) 403.220, a family court has broad discretion in awarding attorney's fees in a dissolution proceeding. See Tucker v. Hill, 763 S.W.2d 144, 145 (Ky. App. 1988) ("The allocation of
court costs and attorney's fees is entirely within the discretion of the trial court."). Generally, the only factor that a court is required to consider when awarding attorney's fees is the financial resources of the parties. See Poe v. Poe, 711 S.W.2d 849, 852 (Ky. App. 1986).
In the present case, the family court warned the parties that if Kenneth's motion was harassing or not supported by proof, it could result in Kenneth having to pay all of Kari's attorney fees. In its order, the family court found that Kenneth's motion was not well-grounded in fact, that he failed to make a reasonable inquiry into the allegations he set forth in his motion, that both parties had filed numerous pleadings in both McCracken and Calloway Family Courts, that it had given the parties fair warning that it would award attorney fees for motions filed for improper purposes, that Kenneth's motion was meant to harass Kari and increase the cost of litigation, and that the amount of attorney fees and costs awarded were reasonable based upon his statement during the hearing that "money was not an issue for him after being questioned by the court as to how he planned to pay the tuition for St. Mary."
We do not agree with the family court that sanctions or attorney fees in the amount of $3,865.00 were warranted in this case. We must agree with Kenneth that his motion was not completely unfounded; the family court stated in its order that Kenneth's allegation that Nolan wished to live with him was well-founded based upon his interview of the child during the first day of the hearing. Likewise, there was some indication that Nolan's grades had dropped, although the hearing produced evidence that the drop was not established to the extent that a modification of timesharing could be supported. Furthermore, some of the fees claimed by Kari's attorney were for her own motion to modify custody, which was denied because it was not supported by an affidavit or approved to be heard by the court. And under KRS 403.220, we must also agree with Kenneth that the family court used his statement - that money was not an issue for him - out of context. He made this statement when the court asked him about the tuition for St. Mary. While the total amount was $5,000.00 per year, Kenneth told the family court that the church would be subsidizing half of that amount and that he believed Nolan would receive a scholarship to pay for the remainder. Kenneth might have to pay between $100.00 and $200.00 per month, which he did have the financial ability to pay. Kenneth did not make a blanket statement that money was not an issue for him, as the family court found in its order. Therefore, we hold that the family court's award of $3,825.00 in attorney fees constitutes an abuse of discretion because it was not based upon a fair consideration of Kenneth's financial resources pursuant to KRS 403.220, but was taken out of context from Kenneth's statement about tuition at St. Mary.
For the foregoing reasons, the portion of the Calloway Family Court's order denying Kenneth's motion to modify timesharing is affirmed, and the portion of the order awarding $3,825.00 in attorney fees and costs is reversed.
ALL CONCUR. BRIEF FOR APPELLANT: Kenneth Averill, Pro Se
Paducah, Kentucky
BRIEF FOR APPELLEE: Stephanie J. Perlow
Murray, Kentucky