Stephanie Ensor Smith (Formerly Griffin) v. Eric Paul Griffin ( 2022 )

RENDERED: AUGUST 26, 2022; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2021-CA-0558-MR
STEPHANIE ENSOR SMITH
(FORMERLY GRIFFIN) APPELLANT
APPEAL FROM DAVIESS CIRCUIT COURT
v. HONORABLE JOHN M. MCCARTY, SPECIAL JUDGE
ACTION NO. 07-CI-00520
ERIC PAUL GRIFFIN APPELLEE
OPINION
AFFIRMING
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BEFORE: ACREE, DIXON, AND K. THOMPSON, JUDGES.
ACREE, JUDGE: Appellant, Stephanie Smith, appeals the Daviess Circuit Court’s
order denying her motion for attorney’s fees from Appellee, Eric Griffin. Having
reviewed the record, we affirm.
Stephanie Smith filed for divorce from Eric Griffin on April 10, 2007.
The couple had three children, all minors at the time of the divorce, ages 9 to 13.
Under agreements made in the divorce proceedings, the parties retained joint
custody of their children. Smith was the primary custodian, while Griffin paid
child support and 65% of the children’s private school tuition. The divorce decree
was entered in June 2009.
In March 2019, Smith filed a motion pursuant to KRS1 405.020(2) to
require both parties to pay support of their middle child, aged 20 at the time.
Smith alleged the child suffered from behavioral issues, rendering the child wholly
dependent on his parents. These issues began at the age of seven and continued
into adulthood when the child’s doctor diagnosed him on the autism spectrum.
At the hearing to rule on Smith’s motion, she presented lay and expert testimony
on the child’s behavior and autism. She also presented financial records reporting
the amount she paid in fees for the experts to attend trial. The circuit court
determined the child was wholly dependent and required Griffin to pay appropriate
monies to support the child with Smith.
After this order, Smith filed a motion requesting Griffin pay
attorney’s fees related to the trial. The circuit court denied Smith’s motion for
attorney’s fees. This appeal follows.
Before reaching the merits, we address Griffin’s failure to file an
appellee’s brief. When an appellee fails to file a brief, the appellate court may:
“(i) accept the appellant’s statement of the facts and issues as correct; (ii) reverse
1
Kentucky Revised Statutes.
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the judgment if appellant’s brief reasonably appears to sustain such action; or (iii)
regard the appellee’s failure as a confession of error and reverse the judgment
without considering the merits of the case.” CR2 76.12(8)(c). Upon review of the
record, Smith’s statement of the case appears consistent with the record.
Nevertheless, we do not find it sustains reversal of the circuit court’s action.
When reviewing a circuit court’s awarding of attorney’s fees,
appellate courts review for abuse of discretion. Miller v. McGinty, 234 S.W.3d
371, 373 (Ky. App. 2007). Absent abuse of discretion, appellate courts will not
disturb a circuit court’s decision regarding attorney’s fees. Id. This is because
“[d]ecisions regarding whether and how to allocate court costs, as well as whether
to award attorney’s fees, are within the discretion of the trial court.” Id.; Flag
Drilling Co. v. Ergo, Inc., 156 S.W.3d 762, 766 (Ky. App. 2005); Wilhoit v.
Wilhoit, 521 S.W.2d 512, 514 (Ky. 1975) (“[A]n allocation of court costs and an
award of an attorney’s fee are entirely within the discretion of the court.”).
Pursuant to statute:
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.
2
Kentucky Rules of Civil Procedure.
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KRS 403.220. Smith originally moved the court pursuant to KRS 405.020(2) to
gain support payments for the party’s adult child. Pursuant to that statute:
The father and mother shall have the joint custody, care,
and support of their children who have reached the age of
eighteen (18) and who are wholly dependent because of
permanent physical or mental disability. If either of the
parents dies, the survivor, if suited to the trust, shall have
the custody, care, and support of such children.
KRS 405.020(2).
KRS 405.020(2) does not provide a right to attorney’s fees regarding
disputes over whether a child is wholly dependent. Instead, KRS 405.020(2)
implicitly reflects what is frequently referred to as the American Rule. Under the
American Rule, litigants pay their own fees, as opposed to the British Rule where
the losing litigant must pay all attorney’s fees for the lawsuit. Flag Drilling, 156
S.W.3d at 766. Thus, we turn our attention to whether the court abused its
discretion in denying attorney’s fees for Smith under KRS 403.220.
In Weber v. Lambe, Weber liquidated $35,000 in marital funds to pay
for attorney’s fees during contentious divorce proceedings, without permission
from Lambe or the circuit court to do so. 513 S.W.3d 912, 919 (Ky. 2017). After
all was said and done, the circuit court ordered Lambe to pay an additional $15,000
in attorney’s fees. Id. Lambe argued this was an abuse of discretion in light of his
former spouse’s taking $35,000 without the authority to do so. Id. However, the
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Kentucky Supreme Court disagreed, reasoning: “[The circuit] court is in the best
position to observe conduct and tactics which waste the court’s and attorneys’ time
and must be given wide latitude to sanction or discourage such conduct.” Id.(quoting Gentry v. Gentry, 798 S.W.2d 928, 938 (Ky. 1990)).
Mindful of Weber’s focus on judicial discretion, we apply that
rationale here. We see nothing in the record to disturb the circuit court’s denial of
Smith’s motion. The circuit court was in the best position to hear both Smith’s and
Griffin’s arguments, as well as experience firsthand the parties’ circumstances.
Noting this case originated for the benefit of the parties’ child, the circuit court saw
no benefit to the child by awarding attorney’s fees. We are not in a better position
to contravene that decision. If the Supreme Court refused to upset a circuit court
order granting attorney’s fees to a spouse who had already appropriated $35,000 in
marital assets without the right to do so, we cannot say the circuit court abused its
discretion here in denying attorney’s fees.
Accordingly, we affirm.
ALL CONCUR.
BRIEF FOR APPELLANT: NO BRIEF FOR APPELLEE.
Frank Stainback
Owensboro, Kentucky
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