CARA SWORD WHEELER v. GORDON LEE WHEELER AND MARTHA ROSENBERG
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RENDERED:
April 27, 2001; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-002762-MR
CARA SWORD WHEELER
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE REBECCA M. OVERSTREET, JUDGE
ACTION NO. 96-CI-04099
v.
GORDON LEE WHEELER AND
MARTHA ROSENBERG
APPELLEES
OPINION
REVERSING
** ** ** ** **
BEFORE:
BARBER, JOHNSON AND SCHRODER, JUDGES.
JOHNSON, JUDGE:
Cara Sword Wheeler has appealed from an order of
the Fayette Circuit Court entered on November 3, 1998, that
required her to pay an attorney’s fee to her former husband’s
attorney.
Having concluded that the award of an attorney’s fee
was an abuse of discretion, we reverse.
Cara and Gordon Lee Wheeler were married on August 14,
1993, and the marriage was dissolved by decree on October 7,
1998.
The parties have a daughter, who was born April 26, 1993,
and a son, who was born on July 20, 1995.
Cara filed a petition
for dissolution of marriage on December 2, 1996, and the case
commenced a long and tortuous journey that has not reflected well
upon our civil justice system.
We have reviewed the videotape of the numerous hearings
before the trial court, which basically consisted of arguments by
counsel; but the deficient condition of the written record has
made our review of this matter difficult.
The written record
offers very little insight into the events which led up to many
of the trial court’s orders.
At a hearing held on August 28, 1998, Cara’s attorney
argued a motion to allow her to take the deposition of Gordon’s
mother in order to ascertain the financial resources provided to
him through a trust or other sources.
In responding to Cara’s
counsel’s argument, Gordon’s counsel, for the first time on the
record, stated that she did not understand why they were
proceeding as if they were going to trial when they had “an
enforceable agreement.”
The trial court responded by stating,
“[i]t looks enforceable to me.
I’ve looked at what was in the
record. There’s letters from both sides.”1
Cara’s counsel then
advised the trial court, “I’m saying the client has authorized us
to proceed no further with it.”
The trial judge responded,
1
Gordon’s response to Cara’s motion to take additional proof
had included evidence of settlement negotiations that included
copies of Gordon’s attorney’s letter dated August 12, 1998, to
Cara’s attorney and Cara’s attorney’s response of that same date.
The letters indicated that they had been transmitted by
facsimile.
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“[s]orry she’s stuck with it, overrule the motion.”
The trial
court then entered an order on September 9, 1998, which not only
denied Cara’s “motion to allow the deposition and testimony of
Sallie Wheeler[,]” but also “sustained” Gordon’s “request to
enforce the settlement agreement between the parties.”
On September 4, 1998, the trial court conducted a
hearing concerning Gordon’s “motion to award tax dependency
exemptions.”
The attorneys argued their respective positions,
but the trial court received no evidence.
This hearing
demonstrated a gap that existed in the parties’ purported
agreement.
The property settlement agreement that Gordon
proposed allotted one child to each parent as a tax dependent,
but significantly the letters exchanged by their attorneys made
no reference to this issue.
The trial court granted Gordon’s
motion and ruled that each party could claim one child each as a
tax dependent.
Following the bench ruling on the tax dependency
question, Gordon’s counsel, Martha Rosenberg, raised with the
trial court her concerns that she had not received the signed
property settlement agreement from Cara’s attorney, Melissa Cain.
Ms. Cain responded that she had met with her client that morning
and that Cara “had a couple of fine points that needed to be
smoothed out” and she “will be getting those to Ms. Rosenberg
today.”
Ms. Rosenberg again expressed her concern to the trial
court, and the trial judge stated, “[i]t needs to be entered as
it is.
I don’t know what the fine points are, but if you all
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don’t agree on them, I’ve already ruled that it’s to be entered
as it is.”
At a hearing on September 18, 1998, the saga continued
with a new twist.
Cara’s counsel had filed a motion to withdraw,
Gordon’s counsel had filed a motion to compel Cara to sign the
property settlement agreement, and Cara, pro se, had filed a
“motion to suspend action and amend or vacate prior orders.”
In
response to Gordon’s counsel’s expressed concern that the case
not be delayed any further, the trial judge indicated that Gordon
need not be concerned because “[w]hen I sustain a motion to
withdraw, it does not delay anything.
to get out.
I simply allow the lawyer
It’s a civil proceeding, there’s no requirement that
an attorney be in.
If an attorney comes in, they come in under
what we are operating on right now.
There’s no changes.”
The trial court then proceeded to address the motion to
compel.
First, Gordon’s counsel argued in favor of the motion to
compel and expressed her opposition to Cara’s motion to suspend.
Before allowing Cara, who was pro se, to respond, the trial judge
began the following colloquy:
Judge Overstreet:
I’ve already heard, I feel
like, some of this Ms.
Wheeler based on previous
motions that have been
filed. This case needs to
get over with. I’m going
to sustain the motion to
withdraw, sustain the
motion to compel and
overrule that motion to
suspend. Obviously, you
can continue. If you want
to hire more lawyers you
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can. That’s up to you.
But, I’m going to simply
overrule your motion at
this time because the
court has previously
ordered that you need to
sign these documents and I
want the documents signed
right now.
Ms. Rosenberg: (Turned to Cara and attempted
to hand her the proposed
agreement).
Cara Wheeler:
I can’t sign that document
your Honor because I did not
agree to the terms contained
in it.
Judge Overstreet:
Let’s get it entered
without her signature.
The only other alternative
would be to hold her in
contempt, which I could
do, but the important
thing is to get that thing
entered.
Ms. Rosenberg: Judge, I think it may be
somewhat necessary to hold a
short hearing as to what the
agreements are. We can do
that right now if the court’s
ready to go.
Judge Overstreet: How long is short?
Cara Wheeler:
Your Honor, I really need to
be taking my daughter to
kindergarten. . .
Bobby Wombles: Your Honor, if I might
interject. Since she now no
longer has counsel, I will
shortly file an appearance for
her, but I need a couple of
weeks to look at that. I
suggest that any hearing be
held in two weeks.
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[Discussion ensued concerning the almost twoyear length of the proceedings].
Judge Overstreet: Well, we’ll continue it to
October 2nd. We’ll have a
hearing that day. It’ll be
a five-minute hearing.
That’s all it’s going to
be. So don’t be coming in
here with a bunch of
witnesses, because I don’t
have time.
The trial court entered an order on September 23, 1998,
which followed its pronouncement from the bench at the hearing on
September 18, that the law firm of Andrews and Associates be
allowed to withdraw as Cara’s attorneys, and which also stated
that “the Firm of Andrews and Associates is adjudged to have a
lien upon any funds the Petitioner may receive pursuant to KRS
376.460.”
At the hearing on October 2, 1998, Cara’s former
attorneys, David M. Andrews and his associate, Melissa G. Cain,
were subpoenaed by Gordon to testify concerning the proposed
agreement.
It was established through Ms. Cain’s testimony that
prior to August 12, 1998, the parties’ counsel exchanged
telephone calls in an effort to settle the case.
While the
parties’ attorneys exchanged faxes on August 12, concerning an
agreement on the issues of custody, child support and division of
property, the testimony of Ms. Cain demonstrated that differences
still remained between the parties concerning the details of a
$250,000 life insurance policy on Gordon with the children as
beneficiaries and the exchange of tax information.
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Ms. Cain
confirmed that she had communicated to Cara that the agreement
consisted of 11 sentences and that Cara had objected to various
terms and conditions in the ten-page proposed agreement prepared
by Ms. Rosenberg.
While the testimony by attorney Cain at the
October 2nd hearing was the first and only testimony ever
provided concerning the proposed agreement, the matter was
treated by the trial court as if it had already been heard and as
if it were before the court on a motion to reconsider.2
The
trial judge announced from the bench, “I’ll overrule the motion
to set aside the actions of the court.”
This ruling from the
bench was followed by the entry of a decree of dissolution dated
October 2nd and entered on October 7, 1998.
Finally, we arrive at the issue of the trial court’s
award of attorney’s fees.
At the October 2nd hearing, Ms.
Rosenberg, Gordon’s attorney, raised the issue of her attorney’s
2
Cara was not present at the October 2nd hearing. Gordon’s
counsel made note of her absence in light of the fact that the
September 18th hearing had been continued due to Cara’s need to
take her daughter to kindergarten. Cara’s new counsel, Mr.
Wombles, explained that his client was not there because they
believed the only purpose for the hearing was to enter a decree.
This is a curious comment since Mr. Wombles was present at the
September 18th hearing and had asked for a continuance of two
weeks. Mr. Wombles also filed a motion on September 28th
entitled “motion to set aside order entered on September 18th and
motion to reconsider orders previously entered.” There was no
order entered on September 18th, although there was one entered
on September 30th which ordered “[t]he Respondent’s motion to
compel execution of the Property Settlement Agreement is hereby
SUSTAINED and the Petitioner is hereby directed to immediately
execute the Property Settlement Agreement tendered to her by
Respondent’s counsel.” Again, this is noteworthy because
evidence concerning the proposed agreement was not even heard by
the trial court until October 2nd.
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fees.
The trial judge asked attorney Rosenberg if she had an
affidavit and she responded that she had a copy of the billing
statement.
Cara’s counsel objected because he had not received a
copy of Ms. Rosenberg’s billing statement and the matter was
continued for one week.
On October 6, 1998, Ms. Rosenberg filed an affidavit
which incorporated a two-page summary of her work on the case.
The summary included 66 different entries, which totaled 25.65
hours at $150.00 per hour for a total of $3,847.50.
Before the
hearing, Cara’s counsel filed a motion to take Ms. Rosenberg’s
deposition.
At the hearing on October 9th, an associate of Ms.
Rosenberg’s appeared on her behalf and indicated that Ms.
Rosenberg was requesting an attorney’s fee of $3,500.00, and that
she opposed being deposed.
The trial court denied the motion to
take Ms. Rosenberg’s deposition, but continued the hearing for
one week so Ms. Rosenberg could be present.
On October 16th, Ms. Rosenberg appeared at the hearing.
She had filed a second affidavit which provided more details
concerning the work she had performed.3
Cara’s counsel continued
to object to the award of an attorney’s fee.
His grounds
included the fact that the agreement “forced upon Ms. Wheeler”
included a provision that “each party shall be responsible for
payment of his or her own attorneys fees,” and that many of the
3
The first affidavit included 41 entries entitled “phone,”
while the second affidavit supplemented those entries with
reference to an individual, e.g. “phone with client” or “phone
with M. Cain.”
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charges listed on the billing statement were not related to Ms.
Rosenberg’s efforts to enforce the agreement.
Without hearing
any testimony from Ms. Rosenberg and without allowing Cara’s
counsel to question her, the trial court ruled that her
attorney’s fee request would be approved with the exception of
four entries on August 10th and 11th for a total of 1.4 hours.
An order was entered on November 3, 1998, ordering that
“Respondent’s motion for attorney fees is hereby granted in an
amount calculated for work performed on behalf of Respondent from
August 12, 1998 through October 2, 1998 as reflected in the
billing statement submitted by Respondent’s attorney in the
amount of $3,637.50.
This appeal followed.4
In this appeal, our review is limited to determining
whether the trial court abused its discretion in awarding the
attorney’s fees to Ms. Rosenberg.
This issue has become somewhat
confused because Cara has continued to argue as a ground for
relief from the order awarding attorney’s fees that the trial
court abused its discretion when it “erred in enforcing the
agreement prepared by Ms. Rosenberg.”
In his brief, Gordon
states “that Appellant has waived any challenge to the trial
court’s entry of the Decree of Dissolution by virtue of the
4
This appeal originally included Cara’s former attorneys
Andrews and Associates, David M. Andrews and Melissa Cain, as
appellees. The attorneys had filed a lien for the $6,746.95 in
attorneys’ fees that they claimed were still owed them against
the $30,000.00 in settlement proceeds due Cara. By agreement,
these appellees were dismissed as parties by this Court on May
18, 1999.
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Notice of Abandonment of Certain issues filed on or about
February 23, 1999.”
Unfortunately, this Court’s records do not
reflect the filing of such a document.
However, a copy is
attached to Gordon’s brief; and in her reply brief, Cara
acknowledges filing it.5
Cara states that she “only wants this
Court to understand that the forcing of the ‘agreement’ on her
was an abuse of discretion by the lower court, and as such, she
had a right to object.
If she had a right to object, then the
awarding of the attorney fees for not signing the agreement was
an abuse of discretion.”6
5
The “Notice of Abandonment of Certain Issues” states:
Comes now the Appellant, Cara Sword
Wheeler, by and through her undersigned
counsel, and notifies all parties to the
Appeal that the Appellant is abandoning
certain issues presently being appealed as
follows:
1.
That the Appellant abandons any
issue concerning the granting of a
divorce between the parties.
2.
That the Appellant abandons any
issues concerning a division of the
marital and non-marital property of
the parties.
3.
That all other issues shall be
pursued, and in particular, the
issue of the granting of attorney
fees and or the reasonableness of
said attorney fees, and all matters
related to attorney fees.
6
Cara claims she “had a twofold purpose for abandoning these
two narrow issues. First of all, the lower court placed her in
an untenable position by keeping her funds from her unless she
(continued...)
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Since the trial court’s award of attorney’s fees was
based on its determination that the parties had reached an
enforceable agreement on August 12, 1998, and that Cara was
unreasonable in refusing to sign the agreement, we believe it is
necessary to compare the attorneys’ correspondence with the
agreement approved by the trial court.
In Ms. Rosenberg’s letter
to Ms. Cain, she stated, in pertinent part, as follows:
This letter is to confirm the oral offer
of settlement made to you on the morning of
August 10, 1998 by my client to Cara. As you
may recall Cappy is offering to settle this
matter with a lump sum payment to Cara in the
amount of $30,000.00 with Cara assuming any
outstanding debt that she claims to be owed
on medical bills or other items that she
presented in her deposition of August 4,
1998. Cara would receive the vehicle in her
possession, free and clear as well as any
personal property in her possession. Custody
and visitation will remain as previously
agreed and child support shall be based on
the parties[’] actual income and daycare
costs and therefore it is anticipated to
remain similar to what it is currently. It
appears from the deposition that Cara’s
income is actually higher than previously
calculated and daycare will be less beginning
with the school year. Cappy will not agree
to pay for private school or education for
Cara. As I am sure you are aware, the Court
does not have the power to order either
considering the income of the parties and the
short duration of the marriage. Cappy is
offering the $30,000.00 with the belief that
same can be utilized for the children’s
education since the parties did not acquire
marital property worth anywhere close to this
6
(...continued)
consented to drop the appeal regarding a reversal of the entire
divorce. Secondly, she did not want to unduly delay the entry of
the divorce, itself, so the parties could get on with their
lives.”
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amount. Each party will be responsible for
his/her individually incurred attorney fees.
Ms. Cain responded to Ms. Rosenberg as follows:7
Per our telephone conversation of
earlier today, this is to confirm that we
would agree to settle this matter on the
following terms:
a.)
Cappy pays Cara a lump sum of
$30,000 (Thirty Thousand Dollars);
b.)
Cappy pays child support to Cara in
the monthly amount of $809.00;
c.)
Cappy maintains an insurance policy
on himself, naming the children as
beneficiaries, and in the amount of
$250,000, until the youngest child
(Dolphy) reaches the age of 21
years;
d.)
Cara is to retain the Van, free and
clear of any debts regarding same,
and all other personal property in
her possession;
e.)
Cappy retains all personal property
in his possession;
f.)
The Parties exchange tax returns
yearly, within two weeks of filing
same;
Ms. Cain sent Cara the following memorandum:
Martha Rosenberg conferred w/ Cappy and
they accepted our terms for settlement.
Specifically, the terms for settlement are as
follows:
1.
2.
7
Cappy pays you $30,000[.]
Cappy pays you child support @
$809/month[.]
Page 2 of this letter is not in the record.
-12-
3.
Cappy keeps life insurance on self
for childrens’ benefit until Dolphy
reaches age 21[.]
4.
You keep health insurance on kids-You pay first $100 of unreimbursed
medical expenses and the remainder
is split between you and Cappy
proportionately. (The clause where
you pay the first $100 of
unreimbursed medicals is, as I
thought, in accord with the
statute.)
5.
You keep van, with no
responsibility for debt associated
with same (except, of course,
tax/license, etc.)[.]
6.
You keep all personal property in
your possession; Cappy keeps all
personal property in his
possession.
7.
You and Cappy exchange tax returns
every year, within two weeks of
filing same with government.
8.
Custody/visitation per our earlier
agreed order[.]
9.
You pay off marital debts we set
forth at your deposition (I will
call some of the creditors to see
if they will negotiate payment-accept less than full amount)[.]
10.
Each pays his or her own attorney
fees[.]
11.
If either party defaults, the
breaching party pays the nonbreaching party’s attorney
fees/costs.
I will be talking with you tomorrow!!!
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The provisions of the proposed property settlement
agreement that have been identified by the parties as
objectionable to Cara include the provisions underlined below:
3. CUSTODY. Wife shall be awarded sole
care, custody and control of the minor
children born of the marriage, namely, Cara
Lee Wheeler, born April 26, 1993, and Gordon
Adolphus Wheeler, born July 20, 1995, subject
to reasonable visitation with Husband as more
specifically set forth in paragraph 4 of this
agreement.
Husband and Wife shall consult in an
effort to mutually agree in decisions
regarding the children’s general health,
welfare and education, as far as possible, so
that they may adopt a mutually harmonious
policy in regard to the children’s
upbringing. It is agreed that Husband and
Wife shall consult with one another and
consider the opinion of the other parent
prior to making major decisions concerning
said children, however, in the event the
parties are unable to agree on an issue
concerning the children, the Wife shall be
the final decision maker [emphasis added].
Neither Husband nor Wife shall attempt
or condone any attempt to estrange the
children from the other party or injure or
impair the mutual love and affection between
parent and child. At all times Husband and
Wife shall both encourage and foster sincere
respect for the other parent [emphasis
added].
Each party shall keep the other party
advised as to any serious illness or major
developments with said children. Each of the
parties agree to keep the other currently
advised as to his or her residential address,
business address, telephone numbers and
whereabouts while on vacation or out of two
with the children [emphasis added].
Each party shall be entitled to
reasonable telephone conversations at
reasonable times when each child is subject
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to the control of the other party [emphasis
added].
Each party shall be entitled to full
access to the children’s medical, dental,
psychological and school records [emphasis
added].
. . .
6.
CHILD SUPPORT. . . .
Husband shall be obligated to provide child
support on behalf of the minor children until
such time as the children reach the age of
eighteen (18) years or graduate from high
school, whichever occurs last, but in no
event shall continue beyond the year in which
the child reaches his or her nineteenth
(19th) birthday [emphasis added].
. . .
Each party hereby agrees to exchange W-2
and 1099 income information each year, with
said statements to be provided within two
weeks of receiving their W-2 and 1099
statements, as well as exchanging the cost of
work related daycare and medical and dental
insurance costs for the purpose of reevaluating child support [emphasis added].
7. TAX DEPENDENCY EXEMPTIONS. Wife shall be
entitled to claim Cara Lee as her dependent
on her state and federal income tax returns
each and every year beginning in the tax year
1998 and Husband shall be entitled to claim
Adolphus as his dependent on his state and
federal income tax returns each and every
year beginning with the tax year 1998. Both
parties agree to execute all forms necessary
claiming the appropriate child as a dependent
on his or her tax returns [emphasis added].
. . .
11. LIFE INSURANCE. It is agreed by and
between the parties that Husband shall obtain
a term life insurance policy on his life,
with a death benefit in the amount of
$250,000.00. Said policy shall name Cara Lee
and Adolphus as equal beneficiaries or a
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trustee on their behalf shall be designated
as a trustee beneficiary to provide for the
children’s health, education and welfare in
the event of the early demise of Husband. It
is agreed by and between the parties that
Husband shall maintain said term life policy
on his life until such time as the youngest
child reaches the age of twenty-one (21)
years [emphasis added].
. . .
20. INCORPORATION AGREEMENT. Both parties
agree that this document, in the event a
Decree of legal separation or of dissolution
is granted by the Fayette Circuit Court,
shall be incorporated by reference into said
Decree and there shall be no modification or
alteration of its terms except for terms
concerning child custody, support and
visitation or by written document signed by
both parties [emphasis added].
Cara objected to the provisions in the proposed
agreement which related to consultation with one another
concerning the children; telephone conversations with the
children; child support terminating in no event “beyond the year
in which the child reaches his or her nineteenth (19th)
birthday”; tax dependency exemptions; a trustee on the children’s
behalf to administer the $250,000.00 in life insurance proceeds;
and the exchange of W-2’s and 1099’s instead of tax returns.
Gordon has emphasized the insignificance of Cara’s objections
concerning the agreement’s language that the “Husband and Wife
shall both encourage and foster sincere respect and affection in
both parents” and that the agreement “shall be incorporated by
reference into said Decree.”
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Having thoroughly reviewed the procedural history of
this case and the factual basis for the trial court’s award of an
attorney’s fee, we will now summarize the law.
Kentucky Revised
Statutes 403.220, in relevant part, provides:
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 [emphasis
original].
KRS 403.220 makes it clear that the decision to award attorney’s
fees and costs in dissolution actions is entirely within the
trial court’s discretion.
As this Court said in Glidewell v.
Glidewell,8 “[i]t is well settled that an allocation of attorneys
fees in a divorce action is entirely within the trial court’s
discretion.”
“‘Abuse of discretion in relation to the exercise
of judicial power implies arbitrary action or capricious
disposition under the circumstances, at least an unreasonable and
unfair decision.’” . . . “The exercise of discretion must be
legally sound.”9
We hold that the trial court abused its discretion in
awarding the attorney’s fee because the record clearly shows that
the trial court made its determination that the parties had
reached an enforceable agreement based solely on correspondence
8
Ky.App., 859 S.W.2d 675, 679 (1993).
9
Kuprion v. Fitzgerald, Ky., 888 S.W.2d 679, 684 (1994).
-17-
between the attorneys and before receiving any evidence from the
attorneys or the parties.
The trial court first indicated its
determination to enforce the agreement at the hearing on August
28, 1998, which concerned whether there was a need for additional
discovery.
Then, on September 4, at the hearing on the dispute
over tax dependency exemptions, the trial court reiterated that
it had “already ruled that it’s to be entered as it is.”
The
abuse of discretion exacerbated at the September 18th hearing,
when the trial court told Cara, whose counsel had just been
allowed to withdraw, that she could “hold her in contempt” and
told her, “I want the documents signed right now.”
These
unwarranted comments were followed by Ms. Rosenberg’s reminder
that “it may be somewhat necessary to hold a short hearing as to
what the agreements are.”
It is apparent to this Court from our
review of the record that Cara expressed some genuine concerns
about the language in the proposed agreement and that some of the
terms included in the proposed agreement were not included in the
attorneys’ correspondence.
Based on the record before us, we hold that the trial
court abused its discretion by awarding an attorney’s fee in this
matter and the judgment of the Fayette Circuit Court is reversed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Bobby G. Wombles
Lexington, KY
Martha A. Rosenberg
Lexington, KY
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