This case is now final; SW3d cite will be supplied when available. This is Hinshaw # 2, not to be confused with Hinshaw #!, in which a motion for discretionary review is pending.
Hinshaw v. Hinshaw, __ S.W.3d __ (Ky. App. 2006), 2006 WL 3334040 (Ky. App.)
Issue and Holding:
Whether law firm is entitled to relief from judgment awarding fees to former husband rather than firm. The Court held no, the firm was not so entitled.
Facts:
In January 2005 the family court ordered the former wife to “pay $25,000.00 toward [former husband’s] attorney fees.” In April 2005 the former wife filed a timely notice of appeal contesting the order and also filed for bankruptcy. In August 2005 former husband’s attorney’s law firm filed notice of an attorney fee lien pursuant to KRS 376.460 and asked the court to amend the judgment and allow the firm to enforce the judgment in its own name. The former wife filed a motion to dismiss arguing that the firm’s motion was untimely under CR 59, the firm was not a party to the appeal, and that the trial court could not exercise concurrent jurisdiction. The firm then filed a response that based its request for relief on CR 60.01 and CR 60.02 (f), not CR 59. It argued that the court could correct its failure to provide that the fee award was directly enforceable in the firm’s name at any time, and in the alternative that the circumstances were of an extraordinary nature justifying relief. The court amended the order, making the award enforceable in the name of the attorney or in the name of the firm. Former wife appealed.
Analysis:
KRS 403.220 provides that a court may order the attorney fees to be paid directly to the attorney. The order in the instant case did not do so. The firm is not entitled to relief under CR 60.01, which provides for corrections of clerical mistakes. The omission by the court in this case is more than clerical. Moreover, in order to correct a judgment under CR 60.01 while an appeal is pending requires permission from the appellate court. No such permission was sought here. Thus, the trial court had no authority to alter the judgment under CR 60.01.
The firm lacked standing to pursue its motion for relief under CR 60.02. The firm waited to make a motion requesting that the fees be payable directly to the firm until after it had withdrawn from the case and the appeal had been filed. In addition, the firm was not a party to the appeal. Even if the firm did have standing, the circumstances were not of the extraordinary nature justifying relief under CR 60.02(f). The firm admitted that it made no effort to have the award made payable to the firm until the former husband indicated that he intended on filing for bankruptcy. The Court felt that these circumstances were foreseeable.
Comments