ANNE HAYES LAMBERT; DAVID L. YEWELL; AND THE LAW FIRM OF KAMUF, YEWELL AND PACE v. STEVEN WILSON LAMBERT
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RENDERED: MARCH 25, 2005; 2:00 p.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2001-CA-002335-MR
ANNE HAYES LAMBERT;
DAVID L. YEWELL; AND
THE LAW FIRM OF
KAMUF, YEWELL AND PACE
v.
APPELLANTS
APPEAL FROM DAVIESS CIRCUIT COURT
HONORABLE THOMAS O. CASTLEN, JUDGE
CIVIL ACTION NO. 99-CI-01507
STEVEN WILSON LAMBERT
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
JUDGE.1
BARBER AND VANMETER, JUDGES; AND HUDDLESTON, SENIOR
HUDDLESTON, SENIOR JUDGE:
David L. Yewell and the law firm of
Kamuf, Yewell and Pace appeal from a series of orders and a
decree of dissolution in which Daviess Circuit Court denied his
former client’s request for attorney’s fees and costs stemming
1
Senior Judge Joseph R. Huddleston sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and KRS 21.580.
from an action for dissolution of marriage.
Statutes
(KRS)
403.220
provides
that
a
Kentucky Revised
court
may
award
attorney’s fees in a dissolution action after considering the
financial resources of both parties.
Because the circuit court
did not abuse its discretion in refusing to award attorney’s
fees in this case, we affirm.
Anne Hayes Lambert (“Hayes”) and Steven Wilson Lambert
(“Steve”) were married in 1986.
filed
a
petition
to
dissolve
On December 17, 1999, Steve
the
marriage.
Hayes
retained
attorney David L. Yewell to represent her in the dissolution
action.
According to Yewell, the only payment he received for
his services was $2,500.00 lent to Hayes by her mother.
On January 14, 2000, Hayes moved the court to require
Steve to place a reasonable amount into an escrow account to pay
toward
her
attorney’s
Following
a
Relations
Commissioner
advance
hearing
$1,000.00
attorney’s fees.
the
virtually
fees
on
and
May
3,
other
2000,
recommended
to
Hayes
for
that
litigation
the
expenses.
court’s
Steve
litigation
be
Domestic
ordered
expenses
to
and
Yewell claims that this sum went directly to
destitute
Hayes
to
cover
her
necessary
expenses, and that he did not receive any of it.
living
On August 11,
2000, the court ordered Steve to pay Hayes $527.90 to cover the
cost of two depositions.
Her request for attorney’s fees was
-2-
denied
“at
this
point
in
the
case.”
No
further
award
of
attorney’s fees or litigation expenses was made.
The main point of contention in the dissolution action
was the valuation and disposition of the marital estate that
consisted
primarily
properties
with
a
of
numerous
value,
heavily
according
mortgaged
to
one
rental
much-disputed
financial statement, of over $1.5 million, and two businesses
owned by Steve -- Lamco Properties, Inc., a holding company for
the rental properties, and Steve Lambert Remodeling, Inc.
From the outset of the dissolution proceedings, Steve
urged
that
the
properties
should
not
be
appraised
but
immediately sold, the mortgages and debts of the marriage paid,
and the net proceeds divided equally.
Hayes, on the other hand,
argued that appraisals were necessary because Steve was planning
to repurchase the properties through friends and family at a
reduced price.
Although the court gave Hayes leave to have the
properties appraised, the appraisal was never performed.
The
dissolution proceedings were lengthy due to these disputes over
the disposition of the estate, and also to the fact that Hayes
was unable to participate at certain hearings because she is
allegedly an alcoholic.
There is also evidence in the record
that Hayes had recurring disputes with Yewell.
Ultimately, Steve failed to meet the mortgage payments
on the properties due to a high number of rental vacancies and,
-3-
according to Yewell, his refusal to use non-marital property to
satisfy the debts.
As a result, foreclosure actions took some
of the properties, and the remainder were sold by order of the
court with the result that there were no significant proceeds of
the marital estate.
25, 2001.
A decree of dissolution was entered on July
On the issue of attorney’s fees, the court ruled
that:
Each party shall pay his or her own attorney fees and costs
from the division of proceeds herein.
The time each party
spent and/or devoted to this action varied by his or her
decision as to how they wanted to present this case.
With
the division of the marital property equally between the
parties, it is only equitable that each party bear their
own
costs
and
attorney
fees
from
their
share
of
the
September
19,
proceeds.
An
order
finalizing
the
decree
was
entered
on
2001.
Three appeals were filed in this case.
The first,
filed on October 16, 2001, named Hayes, Yewell and his law firm
as
appellants,
only.
while
the
two
subsequent
appeals
named
The appeals were consolidated on July 7, 2003.
Hayes
Yewell
was replaced as Hayes’ attorney of record on April 1, 2004.
The
only brief filed in these consolidated appeals is one on behalf
of Yewell and his law firm in 2001-CA-002335-MR.
-4-
The remaining
appeals,
2003-CA-000556-MR
dismissed
by
separate
and
2003-CA-001226-MR,
order.
The
sole
issue
will
on
be
appeal,
therefore, is whether the circuit court erred in refusing to
award attorney’s fees.
KRS 403.220 permits a court to award attorney’s fees
in a dissolution action.
The statute authorizes the court
from time to time after considering the financial resources
of both parties [to] 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.
A circuit court may, therefore, “order one party to a
divorce action to pay a ‘reasonable amount’ for the attorney’s
fees of the other party, but only if there exists a disparity in
the relative financial resources of the parties in favor of the
payor.”2
Yewell
between
Hayes
unreasonable.
require
that
argues
and
Steve
that
the
made
“huge
the
financial
court’s
order
disparity”
unfair
and
He maintains that it is unrealistic to expect or
one
spouse
be
required
2
to
litigate
against
Sexton v. Sexton, 125 S.W.3d 258, 272 (Ky. 2004), quoting Neidlinger v.
Neidlinger, 52 S.W.3d 513, 519 (Ky. 2001).
-5-
the
other
in
a
dissolution
action
without
comparative
financial
means.
Although Kentucky case law supports an award of fees
if there is a gross imbalance or significant inequality in the
financial resources of the parties,3 the ultimate determination
remains within the broad discretion of the circuit court.
[E]ven
if
a
disparity
exists,
whether
to
make
such
an
assignment and, if so, the amount to be assigned is within
the
discretion
mandatory
about
of
the
it.
trial
Thus,
judge.
a
trial
There
is
court’s
nothing
ruling
on
attorney fees is subject to review only for an abuse of
discretion.
the
trial
The test for abuse of discretion is whether
judge’s
decision
was
arbitrary,
unreasonable,
unfair, or unsupported by sound legal principles.4
In this case, the circuit court justified its decision
not to award attorney’s fees on the ground that it had divided
the proceeds of the estate evenly.
The court also alluded to
the fact that the strategy adopted by the parties had to some
extent determined the length and cost of the divorce action.
Such strategic decisions which may “multipl[y] the record and
the
proceedings”
are
proper
considerations
3
“justify[ing]
both
See, e.g., id. at 273; Beckner v. Beckner, 903 S.W.2d 528, 530 (Ky. App.
1995).
4
Sexton, supra, note 2, at 272 (internal quotation marks and citations
omitted).
-6-
the fact and the amount of the award.”5
The equitable solution
arrived at by the court in this case cannot be deemed an abuse
of discretion.
Furthermore, there is insufficient evidence in
the record to support the view that there was such a significant
disparity in the financial resources of the parties to warrant
reversal
of
the
circuit
court’s
refusal
to
award
attorney’s
fees.
Based on the record before us, we conclude that the
circuit court’s refusal to award attorney’s fees was reasonable
and fair.
Thus, that portion of the decree challenged in this
appeal is affirmed.
ALL CONCUR.
BRIEF AND ORAL ARGUMENT FOR
APPELLANTS DAVID L. YEWELL
and THE LAW FIRM OF
KAMUF, YEWELL AND PACE
BRIEF AND ORAL ARGUMENT FOR
APPELLEE:
Candy Yarbray Englebert
Owensboro, Kentucky
David L. Yewell
Owensboro, Kentucky
NO BRIEF FOR APPELLANT
ANNE HAYES LAMBERT
5
Id. at 273, quoting Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990).
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