Fletcher v. Kelley, Case No. 117,229
| Decision Date | 25 November 2019 |
| Docket Number | Case No. 117,229 |
| Citation | 467 P.3d 735 |
| Parties | Donna Jo FLETCHER, Petitioner/Appellee, v. Mark Allen KELLEY, Respondent/Appellant. |
| Court | United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma |
N. Scott Johnson, Patrick H. McCord, N. SCOTT JOHNSON & ASSOCIATES, P.L.L.C., Tulsa, Oklahoma, For Petitioner/Appellee
Carl P. Funderburk, FUNDERBURK AND ASSOCIATES, P.L.L.C., Tulsa, Oklahoma, For Respondent/Appellant
OPINION BY JANE P. WISEMAN, VICE-CHIEF JUDGE:
¶1 Mark Allen Kelley appeals a trial court order granting attorney fees and costs to Donna Jo Fletcher for matters arising after an order establishing paternity was entered. After review, we conclude there is a statutory basis for the attorney fee award and affirm the trial court's decision to award fees and costs, but reverse as to the amount and remand for further proceedings to determine the amount.
FACTS AND PROCEDURAL BACKGROUND
¶2 On November 18, 2014, a decree of paternity was filed that (1) established Kelley is the natural, biological father of CKF, (2) awarded Fletcher sole custody of CKF, (3) awarded Kelley visitation each Tuesday and Thursday from 4:00 p.m. to 7:30 p.m., alternating weekends from Saturday morning through Sunday afternoon, and alternating holidays, and (4) ordered Kelley to pay child support. The decree also provided, "If [Kelley] files a Motion to Modify and if the Court agrees that based upon all the circumstances that are available at that time, the court will consider [Kelley's] request with regard to modifications of custody or visitation." The court-ordered visitation to be monitored by either Carrie Short or another professional approved by Short to determine if CKF is adjusting to the new visitation schedule.
¶3 About a week later on November 26th, an order was filed reciting Kelley had agreed to pay Fletcher $5,000 for attorney fees, to be paid at $1,000 a month for 5 months, beginning in December 2014. The order states that Fletcher "agrees not to pursue the balance of the attorney's fees incurred by her in this matter, and shall not file an application with the Court."
¶4 On October 7, 2015, Fletcher filed a "Motion to Set Expedited Visitation Review Hearing" alleging "Short has issued a report regarding her monitoring of the minor child during the new visitation schedule, which reflects she has concerns about the minor child's development and adjustment to the current visitation schedule." According to an agreed order to modify visitation filed on February 10, 2016, the parties agreed Kelley should have visitation each Tuesday from 4:00 p.m. until 7:00 p.m., and alternating weekends from 10:00 a.m. Saturday until 2:00 p.m. Sunday. A review hearing was set for May 16, 2016.
¶5 Kelley filed a motion to modify child support in April 2016, claiming a modification was needed because he had been laid off from work.
¶6 On July 12, 2016, an "Order Adopting Recommendations of Carrie Short" was filed ordering Kelley to "continue working with his individual therapist to extinguish his animosity toward" Fletcher and setting out a detailed exchange protocol and other instructions. Three days later, Kelley filed a motion to replace Short as the visitation monitor alleging Short favors Fletcher and is biased against him.
¶7 On January 3, 2017, Kelley filed a motion to restore the previous court-ordered visitation schedule and Fletcher objected. The trial court denied Kelley's request to replace Short. An agreed order modifying child support was filed on April 17, 2017.
¶8 On May 23, 2017, Fletcher field an application for an emergency order to require therapeutic supervised visitation claiming Kelley's obstinate conduct necessitated supervised visitation. The trial court granted Fletcher's request for an emergency order, suspended the visitation schedule, and ordered any visitation by Kelley to be supervised by a professional at Rebound Mental Health. After a hearing, the trial court on July 11, 2017, continued supervision of Kelley's visitation at Rebound Mental Health or by another individual agreed to by the parties. On July 20, 2017, Kelley filed a motion for an expedited hearing to appoint a "therapeutic therapist" of his choosing.
¶9 Fletcher filed an application for attorney fees on July 31, 2017, seeking attorney fees and costs pursuant to 43 O.S. § 110. She alleged she incurred substantial attorney fees and costs in the amount of $17,197.87, plus additional fees and costs incurred at the hearing on the issue, due to Kelley's behavior and his numerous filings necessitating a response from her. The time records attached show Fletcher had incurred $17,197.87 in attorney fees and costs beginning December 9, 2014, a time period after the time—November 26, 2014—the parties had agreed on an amount of attorney fees for the paternity proceedings.
¶10 An order filed September 18, 2017, requires Dr. Bart Trentham to supervise Kelley's visitation and Carrie Short to remain as the child monitor. The order restrains and enjoins Kelley from contact with the minor child outside of therapeutic, supervised visitation.
¶11 On December 5, 2017, Kelley filed an application asking the trial court to appoint a public defender for CKF, alleging "Public defender is necessary do [sic ] to allegations of mother that father is harmful to child during exchanges per Carrie Short."
¶12 That same month, Fletcher filed an application to dismiss Kelley's application to alternate tax exemption claiming his application is deficient on its face as failing to comply with Rule 4 of the District Court Rules. Fletcher further claimed Kelley was behind on child support, he continues to pay the previous rate set by the court rather than the increased rate effective in January 2017, and he has failed to reimburse Fletcher for medical, therapy, and child care expenses. Fletcher filed a motion to dismiss Kelley's application for the appointment of a public defender for failure to comply with Rule 4. In the alternative, Fletcher denied that a public defender was necessary.
¶13 The trial court issued a series of orders ruling on the motions. In a document titled "Decision" filed on June 14, 2018, the trial court ordered Kelley to pay Fletcher $12,000 for attorney fees and costs. The trial court stated it "performed a judicial balancing of the equities" in reaching its decision. On June 14, 2018, the trial court ordered the appointment of a public defender for CKF. In a separate order, the trial court denied Kelley's application to alternate the tax exemption. In its later-filed order awarding attorney fees and costs, filed July 12, 2018, the court stated, "That the time period from December 9, 2014 to December 30, 2015, appears to involve a reasonable amount of time that either party should expect to be responsible for in this setting, particularly since the matter was concluded with an Agreed Order." The court continued: The court stated it "performed a judicial balancing of the equities" and awarded Fletcher a judgment against Kelley for $12,000, to be paid at the rate of $150 per month beginning in July 2018.
¶14 Kelley appeals from the order awarding attorney fees and costs to Fletcher.
STANDARD OF REVIEW
¶15 Kelley challenges the court's authority to make the award. "Whether a party has a right to recover a statutory attorney's fee is a legal question, and will be reviewed de novo by this Court." State ex rel. Dep't of Transp. v. Cedars Grp., L.L.C. , 2017 OK 12, ¶ 10, 393 P.3d 1095.
¶16 We also examine a question of statutory construction as a question of law requiring de novo review. Arrow Tool & Gauge v. Mead , 2000 OK 86, ¶ 6, 16 P.3d 1120.
ANALYSIS
¶17 "The rule that ‘each litigant bears the cost of his/her legal representation and our courts are without authority to assess and award attorney fees in the absence of a specific statute or a specific contract therefore between the parties’ is ‘firmly established in this jurisdiction.’ " Jones v. Pack , 2018 OK CIV APP 3, ¶ 15, 408 P.3d 628 (quoting Boatman v. Boatman , 2017 OK 27, ¶ 16, 404 P.3d 822 ). On appeal, Kelley asserts: "There was never a motion to modify filed to invoke the jurisdiction of the court nor ruled on in order to have a prevailing party to consider awarding attorney fees." He asserts the paternity order, filed on November 18, 2014, provides: "In accordance with law , if Father files a Motion to Modify and if the Court agrees that based upon all the circumstances that are available at that time, the court will consider Father's request with regard to modifications of custody or visitation." He claims the only motion to modify that has been filed was a motion to modify child support, which was resolved by an agreed order. He claims "there was never a proper filing to invoke the jurisdiction of the Court" and without "jurisdiction by the Court there can be no awarding of attorney fees." He asserts the trial court failed to make specific findings regarding the balancing of the equities. He further asserts 43 O.S. § 110(E) cannot be a basis for awarding attorney fees because this is a paternity action, not a dissolution of marriage action.
¶18 Title 43 O.S.2011 § 110(E) provides:
The court may in its discretion make additional orders relative to the expenses of any such subsequent actions, including but not limited to writs of habeas corpus, brought by the parties or their attorneys, for the enforcement or modification of any interlocutory or final orders in the dissolution of marriage action made for the benefit of either party or their respective attorneys.
He contends that "with no Motion to Modify being filed, there cannot be a prevailing party and therefore the awarding of attorney fees and costs...
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