Opinion
NO. 2012-CA-001712-MR
03-21-2014
JEFFREY B. FORTWENGLER APPELLANT v. SHANNON DOYLE FORTWENGLER APPELLEE
BRIEF FOR APPELLANT: William D. Tingley Louisville, Kentucky NO BRIEF FILED FOR APPELLEE.
NOT TO BE PUBLISHED
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE DONNA DELAHANTY, JUDGE
ACTION NO. 09-CI-500277
OPINION
VACATING
BEFORE: ACREE, CHIEF JUDGE; MAZE AND STUMBO, JUDGES. STUMBO, JUDGE: Jeffrey Fortwengler appeals from an order awarding Shannon Fortwengler $500 in attorney fees. We find the award of attorney fees was in error and vacate.
The parties to this action were divorced in October of 2009. On September 5, 2012, Appellant filed a motion requesting that the court order Appellee to cease putting the medical bills for their minor children in his name and for an award of attorney fees. Appellee filed her response on September 19, 2012, and also filed a motion for attorney fees in which she argued that Appellant's motion was frivolous. On September 26, 2012, the trial court granted Appellant's motion and awarded him $250 in attorney fees. On the same day, the trial court granted Appellee's motion finding that Appellant's motion was frivolous. That order awarded Appellee $500 in attorney fees. On October 2, 2012, Appellee filed a motion to set aside the order awarding Appellant attorney fees. Three days later, Appellant appealed the order awarding Appellee $500 in attorney fees.
The entire record for these divorce proceedings is not before us, only a partial record. It appears as though Appellant was responsible for the medical insurance for the children, but it is unclear why the medical bills were required to be in Appellee's name.
An award of attorney fees is "within the discretion of the court depending on the circumstances of each particular case." Kentucky State Bank v. AG Services, Inc., 663 S.W.2d 754, 755 (Ky. App. 1984). "The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
In this case, the trial court awarded Appellee attorney fees because it found that Appellant's motion was frivolous, however; that same trial court granted Appellant's motion and awarded him attorney fees. It is only logical that a court would not grant a motion and award attorney fees if said motion was frivolous. While we suspect the order was signed in error, the trial court's order awarding Appellee $500 in attorney fees was an abuse of discretion. It is unreasonable and unsupported by sound legal principles to call a motion frivolous, yet still grant the motion and award attorney fees.
For the foregoing reasons we vacate the order of the trial court.
ALL CONCUR. BRIEF FOR APPELLANT: William D. Tingley
Louisville, Kentucky
NO BRIEF FILED FOR APPELLEE.