Neidlinger v. Neidlinger

• Decision Date: 23 August 2001
• Docket Number: No. 1999-SC-0662-DG.,1999-SC-0662-DG.
• Citation: 52 S.W.3d 513
• Parties: Melba I. NEIDLINGER, Appellant, v. Jerry Lynn NEIDLINGER, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 513

52 S.W.3d 513

Melba I. NEIDLINGER, Appellant, v. Jerry Lynn NEIDLINGER, Appellee.

No. 1999-SC-0662-DG.

Supreme Court of Kentucky.

August 23, 2001.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bonnie M. Brown, Louisville, for appellant.

Delores H. Pregliasco, Vicki L. Buba, Louisville, for appellee.

OPINION OF THE COURT

COOPER, Justice.

Melba and Jerry Neidlinger were married in Hawaii in 1976. The husband, Appellee, is a dentist. The wife, Appellant, has an associate degree in health education from San Francisco City College and had been employed by another dentist during the five years preceding the marriage. Appellant then worked full-time in Appellee's dental practice until 1982 when the parties adopted their only child, Jessica, born on August 6, 1982. Thereafter, Appellant continued to work part-time. In 1984, the family moved from Hawaii to Danville, Kentucky, where Appellee opened another dental practice. The practice was not as successful as the parties had anticipated and, in 1989, Appellee decided to obtain a second dental degree to enhance his marketability. While attending school in Chicago, Appellee also taught and worked part-time, and commuted to Danville on weekends where he continued to treat some of his Danville patients. During this period, Appellant used money from the dental office account to purchase a $10,000.00 certificate of deposit.

In 1991, Appellee completed his second degree and accepted employment with the Veterans Administration in Little Rock, Arkansas. Appellant remained in Danville. In 1992, Appellee accepted another position in Charleston, South Carolina. Appellant again declined to accompany Appellee to his new place of employment and the parties agreed to separate. Appellant moved from the marital residence in Danville to a rental apartment in Louisville, Kentucky, so that she could pursue a degree in interior design. She enrolled Jessica in a private school at a tuition cost of $7,200.00 per year (later $8,000.00 per year). In August 1992, the parties sold the Danville dental practice for $93,000.00. Much of this sum was used to pay debts; however, Appellant used $25,000.00 of the proceeds to purchase another certificate of deposit. From August 1992 until November 1993, Appellee sent Appellant $3,600.00 per month for spousal maintenance and child support. He also paid $1,500.00 per month on the mortgage and utility bills for the Danville residence and $798.00 per month on the parties' credit card debts. However, he objected to Jessica's continued enrollment in the private school and refused to pay the cost of tuition. The trial judge ultimately found that Appellee's gross income was $83,000.00 per year.

In March 1993, Appellant filed this action in the Jefferson Circuit Court for a decree of legal separation (later amended to seek a decree of divorce). In January 1994, Appellee reduced his voluntary maintenance and support payments to $700.00 per month. Following a pendente lite hearing before a domestic relations commissioner, Appellee was ordered to pay Appellant $700.00 per month in spousal maintenance and $798.00 per month in child support, retroactive to August 1994. During the pendency of the action, Appellant cashed and spent the $35,000.00 certificates of deposit and spent another $26,000.00 which she had borrowed from her mother and two friends.

The litigation was bifurcated into two phases, the first addressing issues of property division and spousal maintenance and the second addressing issues of custody, visitation, and child support. The first phase was tried on July 5 and October 23, 1995. A November 2, 1995 judgment entered a decree of divorce, assigned the parties' property and debts, and awarded Appellant $400.00 per month spousal maintenance for a period of three years. (By this time, Appellant, though unemployed, had acquired both a degree in interior design and a real estate license.) With respect to the $26,000.00 owed to Appellant's mother and two friends, the judgment recited:

Mrs. Neidlinger incurred significant debt for living expenses and for her unilateral decision regarding schooling for Jessica post-separation. The Court concludes that she was the beneficiary of most of the debt and shall be responsible for payment of those "loans."

Appellant was represented by an attorney during the first phase of the litigation. With respect to attorney's fees, the judgment stated as follows:

The law authorizes an award of costs and attorney's fees when there is an imbalance in the financial resources of the parties. KRS 403.220. This Court, however, has no information regarding attorney's fees. Therefore, Petitioner's counsel ... shall tender the appropriate affidavit to this Court. Judgment concerning an award is reserved.

Each party filed a motion to alter, amend or vacate the November 2, 1995 judgment. CR 59.05. Appellant's counsel also filed a sixty-one page affidavit detailing costs and fees totaling $9,741.70 incurred by Appellant through November 30, 1995 and moved the court to require Appellee to pay Appellant that sum. Prior to the scheduled hearing on the post-judgment motions, Appellant discharged her attorney. Several days later, she filed a written motion to require Appellee to advance to her an unspecified sum of money to enable her to retain new counsel for the custody phase of the litigation. On April 4, 1996, an order was entered adjudicating all pending post-judgment motions, including Appellant's motions for attorney's fees, both of which were overruled. Appellant represented herself during the custody phase of the litigation. Following a trial of those issues, a second judgment was entered on August 21, 1996 awarding Appellee custody of then fifteen-year-old Jessica, subject to Appellant's visitation rights, and ordering Appellant to pay child support.

Every order entered by the trial judge was designated as "final and appealable." As a result, four separate appeals were filed in this case, all of which were ultimately consolidated into one. On June 18, 1999, the Court of Appeals reversed the spousal maintenance award and remanded that issue to the family court with directions to enter an increased award. In all other respects, the judgments were affirmed. Appellee did not seek further review of the maintenance issue. Appellant, however, sought and obtained discretionary review of three issues: (1) failure to require Appellee to reimburse her for attorney's fees incurred during the first phase of the litigation; (2) failure to require Appellee to advance attorney's fees to her to enable her to retain counsel for the second phase of the litigation; and (3) assignment to her of the $26,000.00 debt owed to her mother and two friends.

I. INCURRED ATTORNEY'S FEES.

The Court of Appeals concluded that the failure to order Appellee to pay the attorney's fees already incurred was unpreserved for appellate review because Appellant did not name her attorney as a party to the appeal, citing Carter v. Carter, Ky., 382 S.W.2d 400. 402 (1964). Carter, as well as the other cases cited for this proposition in Appellee's brief, i.e., Tyler v. Bryant, Ky., 394 S.W.2d 454, 455 (1965), McDowell v. McDowell, Ky., 378 S.W.2d 814, 816 (1964) and Patterson v. Patterson, Ky., 266 S.W.2d 91, 93 (1954), were all decided under former KRS 453.120, which provided:

In actions for alimony or divorce, the husband shall pay the costs of each party, unless it appears in the action that the wife is in fault and has ample estate to pay the costs.

In each of the cited cases, an attorney's fee was awarded and was contested on appeal. In Tyler, McDowell and Patterson, the husband sought to contest the fee awarded to the wife's attorney. In Carter, the wife sought to contest the awarded fee as inadequate. In each case, the attorney had a vested interest in the outcome, thus was a necessary party to the appeal. KRS 453.120 was repealed¹ concomitantly with the 1972 enactment² of the new Kentucky dissolution of marriage act, which was modeled on the Uniform Marriage and Divorce Act promulgated in 1970 by the National Conference of Commissioners on Uniform State Laws. KRS 403.220 was adopted verbatim from Section 313 of the Uniform Act.³ It provides:

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. (Emphasis added.)

Appellant's motion for attorney's fees already incurred did not request that the fees be paid directly to Appellant's former attorney (apparently Appellant had already paid his fee); thus, the motion was that Appellant be reimbursed for the fees she incurred. Under that circumstance, Appellant's former attorney was not an indispensable party to this appeal.

In Tyler v. Bryant, supra, our predecessor Court held that an attorney was an indispensable party to an appeal from an award of an attorney's fee under KRS 453.120 whether the fee was awarded to the wife or whether it was awarded directly to the attorney. Wilhelm v. Wilhelm, Ky., 504 S.W.2d 699 (1973), held that there was "no reason why this rule should not continue to apply in marriage-dissolution cases under KRS 403.220." Id. at 701. Upon reconsideration, however, we discern a substantial distinction between awards under former KRS 453.120 and awards under KRS 403.220. Under KRS 453.120, the husband was the principal obligor of the wife's attorney's fee and that was true whether the fee was ordered paid to the wife or directly to the attorney. Unless the wife was "in fault" in causing the divorce and had a substantial estate of her own,...