556 S.W.3d 552
Mo. Ct. App.2018Background
- Laura Smith and Jimmy McGill divorced (Arkansas, 2005); Laura was awarded primary residential custody of three children; Jimmy had visitation. Laura later moved to Kentucky and filed the decree there; custody/support matters proceeded in Jefferson Family Court.
- Jimmy sought primary custody of the two youngest daughters; the Jefferson Family Court denied his motion (Jan 21, 2016).
- After the custody decision, Laura moved for attorney’s fees. The trial court initially ordered Jimmy to pay $26,352.23 in fees, then amended the award to $10,000 after learning Laura earned $41,900 vs. Jimmy’s $32,500.
- Jimmy appealed only the attorney’s-fee award to the Court of Appeals, which reversed, holding that under KRS 403.220 prior Kentucky precedent required a showing of financial disparity before awarding fees. The Court of Appeals remanded to consider CR 37 sanctions if appropriate.
- Laura sought discretionary review. The Kentucky Supreme Court granted review and reinstated the trial court’s award, overruling the line of cases requiring a disparity finding as a threshold to award fees under KRS 403.220.
- Separately, an Arkansas court declined to exercise continuing, exclusive jurisdiction, finding Kentucky the more convenient forum for the children’s matters.
Issues
| Issue | Plaintiff's Argument (Smith) | Defendant's Argument (McGill) | Held |
|---|---|---|---|
| Whether KRS 403.220 requires a finding of financial disparity before awarding attorney’s fees | KRS 403.220’s plain language does not require disparity—court must only consider parties’ financial resources | Past Kentucky precedent requires a disparity as a threshold; no disparity existed here, so fees improper | The court held no disparity requirement; trial court need only consider the parties’ financial resources before awarding fees (reversing Court of Appeals) |
| Whether conduct-based sanctions under CR 37 are the exclusive basis for awarding fees for obstructive litigation conduct | Fees may be awarded under KRS 403.220 for reasons including conduct; trial court may consider conduct when setting amount | Court of Appeals suggested remand to consider CR 37; McGill argued fees based on conduct required CR 37 finding | The court rejected limiting relief to CR 37; conduct is a relevant factor and trial courts have discretion to account for conduct when awarding fees under KRS 403.220 |
| Forum/jurisdiction for children’s matters | (N/A to fee question) | Arkansas court should retain continuing jurisdiction | Arkansas court declined to exercise continuing, exclusive jurisdiction, finding Kentucky more convenient for the children |
Key Cases Cited
- Gentry v. Gentry, 798 S.W.2d 928 (Ky. 1990) (trial court may consider obstructive tactics and conduct when awarding fees; deference to trial court’s assessment of conduct and fee amount)
- Sullivan v. Levin, 555 S.W.2d 261 (Ky. 1977) (earlier interpretation requiring financial imbalance to justify fees under KRS 403.220)
- Bishir v. Bishir, 698 S.W.2d 823 (Ky. 1985) (affirming fee awards where record supports findings about parties’ financial resources)
- Hale v. Hale, 772 S.W.2d 628 (Ky. 1989) (addressed direct payment of fees to counsel and upheld prior interpretation linking KRS 403.220 to financial imbalance)
- Neidlinger v. Neidlinger, 52 S.W.3d 513 (Ky. 2001) (reiterated that KRS 403.220 authorized fee awards only when a disparity in financial resources exists)