Richard GAVIN v. Jody GAVIN
94-672
Supreme Court of Arkansas
January 17, 1995
890 S.W.2d 592
Casey Jones, for appellee.
DAVID NEWBERN, Justiсe. Richard Gavin, the appellant, and Jody Gavin, the appellee, were divorced. Ms. Gavin petitioned the Chancellor to award attorney‘s fees for services rendered to her by her attorney after the decree was entered. Mr. Gavin contested the petition on the ground that the fеes sought were for services rendered with respect to matters other than the obtaining of alimony, maintenance, or support. From the abstraсt before us, all we know is that the Chancellor entered two orders after the date of the decree, each awarding Ms. Gavin an attorney‘s fee of $1500 with interest at 10% per annum.
Mr. Gavin appeals from those orders contending the Chancellor lacked authority to award attorney‘s fees othеr than with respect to the obtaining of alimony, maintenance, or support and that the 10% interest rate was in excess of the amount allowed by
1. The attorney‘s fee award
Mr. Gavin‘s abstract states that when the Chancellor considered the matter there was “colloquy between the attorneys and the court regarding the proрriety of post-decree fees in matters not involving alimony, maintenance, or support.” There is, however, nothing in the abstract from which we can dеtermine that the fees were awarded for other than alimony, maintenance, or support. All we know is that fees were awarded after the decree of divorce was rendered.
As a general rule, attorney‘s fees are not allowed in the absence of a statute permitting their allowance. Chrisco v. Sun Industries, Inc., 304 Ark. 227, 800 S.W.2d 717 (1990); Damron v. University Estates, Phase II, 295 Ark. 533, 750 S.W.2d 402 (1988). We have held, however, that a chancellor has considerable discretion to award attorney‘s fees in a divorce case. See, e.g., Wilson v. Wilson, 294 Ark. 194, 741 S.W.2d 640 (1987). We and the Court of Appeals have recognized that a chancellor has inherent power and jurisdiction to allow attorney‘s fees in matters not specifically covered by statute, including contempt proceedings, for example. Feazell v. Feazell, 225 Ark. 611, 284 S.W.2d 117 (1955); Payne v. White, 1 Ark. App. 271, 614 S.W.2d 684 (1981).
We decline to reverse the fee awards with nothing before us showing the attorney‘s services for which the fees were awarded.
2. Interest
Mr. Gavin argues the Chancellor awarded 10% interest on the attorney‘s fee orders pursuant to
We assume the reference to
Interest on any judgmеnt entered by any court or magistrate on any contract shall bear interest at the rate provided by the contract or ten percent (10%) pеr annum, whichever is greater, and on any other judgment at ten percent (10%) per annum, but not more than the maximum rate permitted by the Arkansas Constitution, Article 19, § 13.
We pointed out in McElroy v. Grisham, 306 Ark. 4, 810 S.W.2d 933 (1991), that Article 19 has nothing to do with interest on a judgment amount.
Ms. Gavin has not filed a supplemental abstract. In her argument on this point, she “agrees that interest should nоt exceed the allowable rate of interest at the time of judgment, which was 8%.” She asks us to modify the judgment rather than reverse it.
We are reluctant to decline to modify the order in view of Ms. Gavin‘s agreement that it should be modified. On the other hand, we are being asked to “fly blind,” and we are more reluctant to modify the Chancellor‘s order when we hаve nothing in the abstract before us and no convincing argument which supports the modification.
When a party makes a concession of a point on appeal, we do not just accept it without discussing the basis for it. See, e.g., Southwestern Distilled Products Inc. v. State, 203 Ark. 524, 160 S.W.2d 208 (1941); Estes v. Estes, 202 Ark. 73, 148 S.W.2d 1075 (1941). Nor is an issue decided simply because both parties to a lawsuit аllege the same conclusion of law. See Trace X Chemi-cal, Inc. v. Highland Resources, Inc., 265 Ark. 468, 579 S.W.2d 89 (1979).
In view of the lack of any basis to establish the 8% interest rate suggested by Ms. Gavin and the lack of any convincing argument that the rate is controlled by
Affirmed.
BROWN, J., dissents.
ROBERT L. BROWN, Justice, dissenting. I respectfully dissent and would consider the issue of the attorney‘s fee award on the merits — not on the basis of a deficient abstract.
The abstract clearly states, as the majority opinion admits, that the trial court and the attorneys debated whether an attorney‘s fee was appropriate for work dоne after the divorce decree for matters not involving alimony, maintenance, or support. Our statutes provide for post-decree attorney‘s fees only for enforcement of awards in those limited categories. See
Further, when the parties agree on аn interest rate to apply post-decree, I question the existence of a remaining case or controversy. Though the reasoning of the mаjority opinion about some basis for a concession is logical, the parties did not argue on appeal that the interest rate was in dispute. A ready inference