McKIDDY v. ALARKON
2011 OK CIV APP 63
| Okla. Civ. App. | 2011Background
- Mother and Father never married; they are parents of a child born in 2002.
- Mother filed a petition in 2002 seeking paternity, custody, support, and visitation.
- Father admitted paternity in 2002 and sought joint custody; a Decree of Paternity in 2003 awarded Mother legal custody and Father visitation.
- Over time, custody remained with Mother but visitation schedule evolved, including a 2007 modification.
- In 2009, after a series of motions and hearings, the parties memorialized a visitation arrangement in a journal entry.
- Mother then sought attorney's fees; the trial court awarded $8,750, which Father challenged on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is § 110(E) applicable to attorney's fees here? | McKiddy argues § 110 applies to awards in dissolution actions. | Alarkon contends § 110 is inapplicable because the parties were never married. | § 110 is inapplicable; not controlling. |
| Do other statutory provisions support the award of fees? | Mother was prevailing and entitlements may arise under other statutes. | Father disputes reliance on alternative statutory bases and prevailing party concept. | One or more statutory provisions support the award; court did not abuse discretion. |
| Was the attorney's fees award proper under the American Rule and related exceptions? | Fees may be awarded when statutory exceptions apply or prevailing-party principles are met. | Fees should not be awarded absent applicable statute or contract. | The record supports the award under statutory exceptions; no abuse of discretion found. |
| Did the absence of a transcript undermine review of the fee award? | Record shows sufficient basis for award; transcript not strictly required for affirmance. | Without a transcript, the basis for the award cannot be reviewed. | Court presumed the award was proper in light of the record and statutory support; no abuse found. |
Key Cases Cited
- Spencer v. Oklahoma Gas & Electric Co., 2007 OK 76 (OK) (attorney fees award review for abuse of discretion; statutory factors)
- Tibbetts v. Sight `n Sound Appliance Centers, Inc., 2003 OK 72 (OK) (reasonableness, discretion in fee awards)
- Keota Mills & Elevator v. Gamble, 2010 OK 12 (OK) (stips cannot control court's legal action; strict construction of statutes)
- Weston v. Independent School District No. 35 of Cherokee County, 2007 OK 61 (OK) (affirmance where statutory basis supported award despite no transcript)
- Hester v. Hester, 1983 OK 50 (OK) (no transcript; approval of part of judgment)
- Stroud National Bank v. Owens, 2006 OK CIV APP 37 (OK CIV APP) (no transcript; presumption of no error without record)
- Galarza v. Galarza, 2010 OK CIV APP 19 (OK CIV APP) (affirmation of fee award where record indicates support)
- The Matter of BTW, 2010 OK 69 (OK) (statutory interpretation guiding judicial intent in fees context)