Opinion
NO. 2020-CA-0369-ME
01-08-2021
C.W. APPELLANT v. C.D.B. APPELLEE
BRIEF FOR APPELLANT: D. Bailey Walton Bowling Green, Kentucky BRIEF FOR APPELLEE: C.D.B. Bowling Green, Kentucky
NOT TO BE PUBLISHED APPEAL FROM WARREN CIRCUIT COURT
HONORABLE CATHERINE R. HOLDERFIELD, JUDGE
ACTION NO. 18-AD-00044 OPINION
REVERSING AND REMANDING
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BEFORE: ACREE, DIXON, AND MCNEILL, JUDGES. ACREE, JUDGE: C.W. appeals the Warren Circuit Court's order awarding C.D.B.'s motion for attorney's fees in the amount of $3,000. We reverse and remand.
BACKGROUND
On April 3, 2018, C.W. filed a petition to terminate the parental rights of her son (D.D.W.), so she could adopt D.D.W.'s child, her grandchild. On April 25, 2018, after determining D.D.W. was indigent, the circuit court entered an order appointing C.B.D. as D.D.W.'s legal counsel.
Beginning July 14, 2018, and thereafter, Kentucky law limited attorney fees to $500 for indigency representation. 2018 Kentucky Laws Ch. 159 § 35 (2018) (amending Kentucky Revised Statutes (KRS) 199.502). There was no prior statutory limit. Additionally, since that date, attorney fees are to be paid by the Finance and Administration Cabinet if the petitioner is a blood relative or fictive kin. Id.
On December 6, 2019, after completing the three-day termination hearing, C.D.B. filed a motion for attorney's fees. His affidavit attested to the accuracy and validity of his charges. The total amount was $4,287.50. The circuit court granted the motion.
C.W. filed a motion to alter, amend, or vacate the attorney fee award claiming KRS 199.502(3)(b), as amended, applied. Therefore, she argued, attorney's fees were limited to $500 and C.D.B. should be paid by the Finance and Administration Cabinet.
The circuit court ruled that this provision of the statute was not in effect when C.D.B. was appointed. The court additionally found the new provisions of the statute were not retroactive.
However, the revision itself indicated to the circuit court the Kentucky legislature's intention to limit attorney's fees in this type of case in the future. Based on that reasoning, the circuit court amended its order awarding attorney's fees but concluded it was equitable to require the Finance and Administration Cabinet to pay $500, and for C.W. to pay $3,000. This appeal followed.
ANALYSIS
Two separate orders factor into this Court's review. The first is the April 25, 2018 order appointing C.D.B. to represent D.D.W. because of his indigency. On that date, no statute categorically required appointment of counsel, or entitled D.D.W. to court-appointed representation.
The appointment was at the circuit court's discretion as a question to be decided in the context of D.D.W.'s constitutionally-protected due process rights. Although the Supreme Court of the United States declined to say "that the Constitution requires the appointment of counsel in every parental termination proceeding[,]" it expressly left "the decision whether due process calls for the appointment of counsel for indigent parents in termination proceedings to be answered in the first instance by the trial court, subject, of course, to appellate review." Lassiter v. Department of Social Services of Durham County, N.C., 452 U.S. 18, 31-32, 101 S. Ct. 2153, 2162, 68 L. Ed. 2d 640 (1981). The order appointing C.D.B. as D.D.W.'s attorney, therefore, stands independently of the order and issue of awarding attorney's fees. We now address that order separately.
"[W]ithout a sound basis in contract or statute, a trial court may not award attorneys' fees." Seeger v. Lanham, 542 S.W.3d 286, 295 (Ky. 2018). To be clear, C.W. did not challenge the general propriety of awarding attorney's fees against her (i.e., the prevailing party) on any ground other than that the award violates KRS 199.502(3)(b), as amended. Consequently, this review is restricted to that question - whether the statute applied - because "[t]he Court of Appeals is without authority to review issues not raised in or decided by the trial court." Mark D. Dean, P.S.C. v. Commonwealth Bank & Tr. Co., 434 S.W.3d 489, 495 (Ky. 2014) (quoting Regional Jail Authority v. Tackett, 770 S.W.2d 225, 228 (Ky. 1989) (internal quotation marks omitted)).
Interpretation of a statute, such as KRS 199.502, and its application to the facts of the case are questions of law to be reviewed de novo, affording no deference to the statutory interpretations of lower courts. Hauber v. Hauber, 600 S.W.3d 204, 207 (Ky. 2020).
Neither the amount of C.D.B.'s fees nor the attorney fee obligor was an issue before the circuit court until the filing of a motion for an award. That occurred on December 6, 2019. The revisions to KRS 199.502(3)(b) governing attorney's fees in adoptions pursuant to that statute had been enacted some seventeen (17) months earlier. The circuit court should have applied the statute because it was in effect and applicable when the award was pursued and the order entered.
For the foregoing reasons, the Warren Circuit Court's February 6, 2020 order is reversed and remanded with instructions to enter an order awarding C.D.B. attorney fees not to exceed $500, to be paid by the Finance and Administration Cabinet, in accordance with KRS 199.502(3)(b).
ALL CONCUR. BRIEF FOR APPELLANT: D. Bailey Walton
Bowling Green, Kentucky BRIEF FOR APPELLEE: C.D.B.
Bowling Green, Kentucky