Mckiddy v. Alarkon

• Citation: 254 P.3d 141,2011 OK CIV APP 63
• Decision Date: 21 April 2011
• Docket Number: Released for Publication by Order of the Court of Civil Appeals of Oklahoma,Division No. 2.,No. 107.614,107.614
• Parties: Michelle Lea McKIDDY, Plaintiff/Appellee,v.Warren Bernard ALARKON, Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

254 P.3d 141

2011 OK CIV APP 63

Michelle Lea McKIDDY, Plaintiff/Appellee,

v.Warren Bernard ALARKON, Defendant/Appellant.

No. 107.614

Released for Publication by Order of the Court of Civil Appeals of Oklahoma

Division No. 2.

Court of Civil Appeals of Oklahoma, Division No. 2.

April 21, 2011.

Appeal from the District Court of Cleveland County, Oklahoma; Honorable Jequita H. Napoli, Trial Judge.AFFIRMED.Letitia Ness Brady, Candee R. Wilson, Wilson and Ness, PLLC, Norman, Oklahoma, for Plaintiff/Appellee.M. Eileen Echols, David W. Echols, Jonathan D. Echols, Amy L. Howe, Lindsey W. Andrews, Echols and Associates, Oklahoma City, Oklahoma, for Defendant/Appellant.DEBORAH B. BARNES, Presiding Judge.

¶ 1 Defendant/Appellant Warren Bernard Alarkon (Father) appeals the trial court's journal entry filed on September 8, 2009, granting in part and denying in part Plaintiff/Appellee Michelle Lea McKiddy's (Mother) application for attorney's fees.¹ Based on our review of the facts and applicable law, we find the trial court did not abuse its discretion. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 Father and Mother, who have never been married to each other, are the parents of a minor child (Child) born in 2002. Mother initiated these child custody proceedings by filing a Petition on November 8, 2002, requesting that the trial court enter an order of paternity, settle custody with Mother, establish child support, and determine appropriate visitation for Father. ² In his amended answer filed on December 30, 2002, Father admitted that he is the biological father of Child, but requested that the parents be granted joint custody.³ In a Decree of Paternity filed on May 20, 2003, the trial court “found [Father] to be the natural and biological father of [Child],” awarded legal custody of Child to Mother, and awarded Father visitation rights.⁴ The trial court stated that “[t]here shall be a gradual transition over the next three to six months to extended overnight visitation with [Father]. Said visitation shall be reviewed by this Court within six months with the intent of promoting shared parenting if deemed workable by an independent evaluator.” Father filed a motion to modify custody on February 25, 2004, requesting that custody be placed with him,⁵ but he subsequently withdrew this motion.⁶

¶ 3 On July 28, 2006, Father filed a motion to modify visitation, stating that his work and school schedule had changed and that it was necessary that his visitation schedule be modified.⁷ In October of 2007, Father's visitation was modified by order of the trial court.

¶ 4 Father filed a second motion to modify custody on December 6, 2007, requesting that custody of Child be awarded to him, and that Mother be awarded visitation.⁸ Father claimed that Mother is “wholly unfit and unsuitable to be the primary custodial parent for the minor child.” He alleged that “[Mother] has continually berated and belittled [Father] and [Child] and in all respects acted to destroy or diminish or alienate the relationship between [Father] and [Child]. [Mother] consistently negatively references [Father's] heritage and culture, often in the presence of [Child].” He also alleged that Mother thwarted his attempts to exercise his visitation rights.

¶ 5 This motion was ultimately settled by agreement of the parties, with custody remaining with Mother and a new, more convenient visitation schedule adopted for Father.⁹ The parties' agreement was memorialized in a journal entry filed on May 21, 2009.

¶ 6 On June 22, 2009, Mother filed an application for attorney's fees and costs, requesting that she be awarded $10,727.88 as “reimbursement of her attorney fees and costs in the action filed by the Defendant December 6, 2007 and concluded May 21, 2009.” ¹⁰ According to Mother in her application, Father “unreasonably and unduly protract[ed] the litigation,” and “[t]his litigious pattern of [Father] has caused [Mother] and her family great financial hardship over the years.” ¹¹

¶ 7 The filings of which Mother complains in her application, and which allegedly required her to spend inordinate time and money filing responses and making appearances in court, include the following:

• On December 6, 2007, Father filed a motion to modify custody in which he requested that custody of Child be awarded to him.¹² This motion was ultimately settled by agreement of the parties, with custody remaining with Mother and a more convenient visitation schedule adopted for Father.¹³

• On December 6, 2007, Father filed a motion for custodial evaluation. ¹⁴ On March 28, 2008, Father filed a second motion for custodial evaluation.¹⁵ The trial court sustained this second motion in its April 28, 2008, order, granting a custodial evaluation at the expense of Father.¹⁶

• On December 6, 2007, Father filed a motion for appointment of a guardian ad litem or in the alternative appointment of a parenting coordinator.¹⁷ The trial court sustained this motion in its April 28, 2008, order, as to the appointment of a guardian ad litem.

• On December 7, 2007, he filed an “ Application For [Contempt] Citation.” ¹⁸ In an order filed on May 21, 2009, the trial court stated that this application “is dismissed by agreement.” ¹⁹

• Although Mother asserts that her deposition was taken on September 27, 2007, and October 6, 2007, totaling over five hours of testimony, and that the purpose of further deposition would only be to annoy, harass, embarrass, burden and oppress her,²⁰ Father filed a “ Notice to Take Deposition and Subpoena Duces Tecum ” on March 19, 2008.²¹

On April 3, 2008, Father filed a motion for continuance, requesting the trial court to move back the hearing set for May 23, 2008, so that he could properly present all evidence and ensure that all reports and evaluations were complete, “including [Father's] discovery process by taking the deposition of [Mother].” ²²

On January 14, 2008, a hearing was held on Father's motion to modify custody, his “Application For Citation,” his motion for custodial evaluation, and his motion for appointment of a guardian ad litem or in the alternative appointment of a parenting coordinator.²³ On April 14, 2008, Father filed a “ Motion to Settle Journal Entry.” ²⁴ In Mother's response to this motion, Mother states that Father's proposed order inadequately summarized the trial court's ruling, and that Mother requested Father make certain changes to the proposed order. Mother claims that she subsequently received “the same Order [from Father] ... without any requested changes made or any explanation or response.” ²⁵ The trial court's order, filed on April 28, 2008, reflects the changes proposed by Mother.

On June 23, 2008, Father filed a “ Motion to Reconsider or Clarify Court's Ruling of April 28th, 2008.” ²⁶

¶ 8 A hearing was held on Mother's application for attorney fees, but a transcript of that hearing is not contained in the record on appeal.²⁷ In a journal entry filed on September 8, 2009, the trial court granted in part and denied in part Mother's application, and entered judgment in favor of Mother in the amount of $8,750, for attorney's fees, with interest accruing at the statutory rate until paid. From this journal entry, Father appeals.

STANDARD OF REVIEW

¶ 9 “A trial court's attorney fees award is reviewed for abuse of discretion.” Spencer v. Oklahoma Gas & Electric Co., 2007 OK 76, ¶ 13, 171 P.3d 890, 895 (discussing State of Oklahoma ex rel. Burk v. City of Oklahoma City, 1979 OK 115, ¶ 22, 598 P.2d 659, 663). “What constitutes a reasonable attorney fee is a matter addressed to the sound discretion of the trial court to be decided based on various factors and a judgment awarding attorney fees will not be reversed absent an abuse of discretion.” Tibbetts v. Sight ‘n Sound Appliance Centers, Inc., 2003 OK 72, ¶ 3, 77 P.3d 1042, 1046 (citations omitted). “As a general matter, an abuse of discretion review standard includes appellate examination of both fact and law issues ... and abuse occurs when the ruling being reviewed is based on an erroneous legal conclusion or there is no rational basis in the evidence for the decision.” Id. (citations omitted).

¶ 10 Where the issue presented is whether a party is entitled to an award of attorney's fees pursuant to mandatory statutory language, and the relevant facts are not in dispute, we review the issue de novo. Finnell v. Jebco Seismic, 2003 OK 35, ¶ 7, 67 P.3d 339, 342. That is, statutory interpretation presents a question of law which is subject to a de novo standard of review. Williams v. Smith & Nephew, Inc., 2009 OK 36, ¶ 8, 212 P.3d 484, 486.

ANALYSIS

¶ 11 Father argues that the trial court erred in awarding attorney's fees to Mother. Father admits that the reasonableness of the amount of attorney's fees is not at issue because the parties stipulated to the reasonableness of the hourly rate and total fees submitted by Mother's counsel.²⁸ However, Father argues that the trial court's determination that Mother is entitled to an award of attorney's fees is in error.

¶ 12 “The American Rule is firmly established in this jurisdiction. That is, 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 therefor between the parties. Exceptions to the American Rule are narrowly defined.” Eagle Bluff, L.L.C. v. Taylor, 2010 OK 47, ¶ 16, 237 P.3d 173, 179 (quoting Kay v. Venezuelan Sun Oil Co., 1991 OK 16, ¶ 5, 806 P.2d 648, 650).²⁹ “Statutes authorizing the award of attorney's fees must be strictly construed,” and exceptions to the American Rule are “carved out with great caution” because “liberality of attorney's fees awards” has a “chilling effect on open access to the courts.” Id.

¶ 13 Regarding statutory interpretation, the Oklahoma Supreme Court has stated:

The goal of inquiry into the meaning of a statutory enactment is to ascertain and give effect to the...