Opinion
NO. 2015-CA-000987-MR
04-15-2016
MEGHAN MCLEOD APPELLANT v. BRENDAN J. MCLEOD APPELLEE
BRIEFS FOR APPELLANT: Mark W. Dobbins Sandra F. Keene Louisville, Kentucky BRIEF FOR APPELLEE: Grant M. Helman Stuart A. Scherer Louisville, Kentucky
NOT TO BE PUBLISHED APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN M. GEORGE, JUDGE
ACTION NO. 12-CI-501803 OPINION
AFFIRMING
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BEFORE: COMBS, DIXON AND STUMBO, JUDGES. STUMBO, JUDGE: Appellant, Meghan McLeod, appeals from an order of the Jefferson Family Court which amended a judgment with respect to the valuation of the parties' business property. That order also awarded Appellant $5,000 in attorney fees. Appellant argues that the trial court should not have amended its judgment and should have awarded her additional attorney fees. We find no error and affirm.
Appellant and Brendan McLeod, Appellee, were married. Appellant filed a petition for dissolution of Marriage on May 24, 2012. A three-day trial was held on June 3, 5, and 17 of 2014 to resolve the issues of the dissolution. One such issue was the division of value of two office condominiums partly owned by the parties. At trial, Appellant had an expert real estate appraiser testify regarding the value of the property. Appellee provided no expert testimony regarding the value of this property. On October 21, 2014, the trial court entered its findings of fact, conclusions of law and judgment in the case. The trial court ultimately used Appellant's expert appraisal values when rendering its judgment as to the condos. The values were $225,000 for one condo and $250,000 for the other condo, for a total of $475,000. The trial court also specifically reserved the issue of attorney fees in order for the parties to submit attorney fee affidavits.
Unbeknownst to the trial court and parties, on October 13, 2014, Appellee's business partner entered into a sales contract with a buyer who was willing to purchase both condos for a total of $355,000. That sale closed on October 27, 2014. Unaware of the sale, on October 29, 2014, Appellee filed a motion requesting that the trial court amend its judgment and find that the most equitable way to split this property is to wait for it to be sold and allow him six months to effectuate such a sale. Appellee then became aware of the sale and on November 6, 2014, filed a motion pursuant to CR 60.02(b) and (f) and asked to be relieved from the judgment as it pertained to the condos. In the motion, Appellee discussed how his partner sold the condos and requested that the $355,000 selling price be considered, and substituted as, the fair market value.
Kentucky Rules of Civil Procedure.
A hearing was had on this issue on April 16, 2015. On April 29, 2015, the trial court entered an order in which it amended the judgment and found that the fair market value of the two condos was $355,000 and stated it was "the amount a buyer was willing to pay on the open market." That same order also addressed, for the first time, the issue of attorney fees. The trial court found that there was only a "slight disparity" in the parties' financial circumstances. The court awarded Appellant $5,000 for attorney fees and costs.
On May 11, 2015, Appellant filed a motion to reconsider. The motion argued that the trial court erred in amending its judgment regarding the fair market values of the condos and that the court should have awarded her more attorney fees. On May 26, 2015, the trial court entered an order stating that the "voluntary sales price, which is the best evidence of the property's value, became available shortly after the Judgment was entered, justifying modification of the Court's Findings of Fact under CR 60.02." The order also denied the motion as it pertained to the increase in attorney fees. This appeal followed.
Appellant's first argument on appeal is that the trial court erred in altering its judgment pursuant to CR 60.02.
On motion a court may, upon such terms as are just, relieve a party or his legal representative from its final judgment, order, or proceeding upon the following grounds: (a) mistake, inadvertence, surprise or excusable neglect; (b) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59.02; (c) perjury or falsified evidence; (d) fraud affecting the proceedings, other than perjury or falsified evidence; (e) the judgment is void, or has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (f) any other reason of an extraordinary nature justifying relief. The motion shall be made within a reasonable time, and on grounds (a), (b), and (c) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this rule does not affect the finality of a judgment or suspend its operation.CR 60.02.
The decision to grant or deny a motion under CR 60.02 or CR 59.05 rests within the trial judge's sound discretion. Accordingly, we apply an abuse of discretion standard of review to a family court's rulings on CR 59.05 and CR 60.02 motions. The test for abuse of discretion is "whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles."Copas v. Copas, 359 S.W.3d 471, 475 (Ky. App. 2012) (internal citations omitted).
We do not believe the trial court abused its discretion in altering its judgment.
CR 60.02 affords the trial court the discretion to reopen a judgment or order for the consideration of newly discovered evidence, which was unavailable to the court at the time of judgment. It does not, however, allow for a judgment to be reopened and altered on the basis of facts which occurred after the judgment was entered.West Vale Homeowners' Ass'n, Inc. v. Small, 367 S.W.3d 623, 628 (Ky. App. 2012). Here, a contract for the sale of the condos was entered into eight days before the underlying judgment in this case was entered. We believe this constituted newly discovered evidence pursuant CR 60.02(b). Because a tentative deal was reached prior to the entry of the judgment and the property was sold close to the entry of the judgment, we cannot say that the trial court's decision to alter its judgment was arbitrary or unreasonable.
Appellant's other argument on appeal is that the trial court's award of attorney fees and costs was insufficient. The trial court has the authority to award one party attorney fees in dissolution actions pursuant to KRS 403.220. KRS 403.220 states:
Kentucky Revised Statutes.
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. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
Appellant argues that the $5,000 award of attorney fees only amounted to less than 10% of her attorney fees and costs. She claims that she should have been given a larger award because Appellee's financial circumstances were superior, that Appellee did not incur the cost of an expert property appraiser, and that Appellee refused to cooperate throughout the proceedings.
Under [KRS 403.220] . . . a trial court is authorized "to 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." . . . The purpose of the fee-shifting statute . . . is simply to ensure the fairness of domestic relations proceedings: "to prevent one party to a divorce action from controlling the outcome solely because he or she is in a position of financial superiority," and "to equalize the status of the parties to a dissolution proceeding . . . in an effort to eliminate the inequities resulting from the termination of the relationship." To that end, if the parties' resources are disparate, the trial court enjoys a broad discretion under the statute to allocate costs and award fees, including "wide latitude to sanction or discourage" "conduct and tactics which waste the court's and attorneys' time."Rumpel v. Rumpel, 438 S.W.3d 354, 363 (Ky. 2014) (internal citations omitted).
Here, the trial court specifically found that there was only a slight disparity in the parties' financial circumstances. The trial court found that Appellant earned $70,732 per year and that Appellee was capable of earning $77,099 per year. In addition, Appellant was awarded $38,497 worth of marital assets and Appellee was awarded $27,905 worth of marital assets. While obstructive and uncooperative tactics can be considered in awarding attorney fees, id., the primary issue to take into account is the disparity in financial resources. Here, the parties' financial resources were similar. The trial court did not abuse its discretion in awarding Appellant only $5,000 in attorney fees.
The trial court found that Appellee was voluntarily underemployed and imputed income to him. --------
For the foregoing reasons, the judgment of the trial court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Mark W. Dobbins
Sandra F. Keene
Louisville, Kentucky BRIEF FOR APPELLEE: Grant M. Helman
Stuart A. Scherer
Louisville, Kentucky